Citation Nr: 1451001 Decision Date: 11/18/14 Archive Date: 11/26/14 DOCKET NO. 12-10 920 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Albuquerque, New Mexico THE ISSUE Entitlement to an initial disability evaluation in excess of 10 percent for gastroesophageal reflux disease with esophagitis from October 7, 2003 and in excess of 30 percent from September 26, 2008. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from March 1972 to March 1975 and from December 2001 to September 2002. This matter comes to the Board of Veterans' Appeals (Board) from a September 2008 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO) in Nashville, Tennessee, which granted service connection for gastroesophageal reflux disease with esophagitis and assigned a 10 percent rating from October 7, 2003. Jurisdiction of this matter was subsequently transferred to the RO in Albuquerque, New Mexico. During the pendency of this appeal, the RO assigned a 30 percent rating to the gastroesophageal reflux disease from September 26, 2008. Although the RO has phrased the issue on appeal as entitlement to an earlier effective date for the award of a 30 percent rating for gastroesophageal reflux disease, it is more properly characterized as a staged rating on appeal from the initial grant of service connection. See Fenderson v. West, 12 Vet. App. 119, 126 (1999) (concerning staged ratings in initial rating cases). The Veteran has argued that the 30 percent rating for the gastroesophageal reflux disease should be assigned from October 7, 2003, the date that service connection was granted. The issue has been recharacterized, as reflected on the title page. Additionally, the Board notes that additional treatment records dated from November 2010 to December 2013 were submitted to the Board which were not previously considered by the agency of original jurisdiction (AOJ), and no waiver was submitted. The Board notes that the VA treatment records dated to December 2010 were considered in the April 2012 supplemental statement of the case. The Board finds the remaining treatment records are not relevant to the Veteran's claim for a higher initial rating since the records do not address the severity of the service-connected GERD but the records list this disorder in the prior medical history or as a significant health problem or list the medication for this disorder. As such, the Board finds the Veteran is not prejudiced by the AOJ's lack of consideration of the VA treatment records. In a December 2008 statement, the Veteran suggested that to the extent that hiatal hernia and gastritis were not contemplated within her service connected GERD that she wished to file for service connection. The Board notes that the Veteran's GERD is currently rated under the Diagnostic Code for a hiatal hernia and the rating that is assigned has taken into account the entirety of the Veteran's gastrointestinal symptomatology. As such, the ratings that are assigned have included the Veteran's hiatal hernia and gastritis, and a separate claim will not be referred. FINDINGS OF FACT 1. Prior to July 25, 2008, the service-connected gastroesophageal reflux disease with esophagitis was manifested by occasional or intermittent symptoms of dysphagia, substernal burning in the throat, muscle spasm and discomfort in the substernal chest area without evidence of persistent and recurrent epigastric distress with substernal, arm, or shoulder pain productive of considerable impairment of health 2. As of July 25, 2008, the Veteran's GERD was shown to be manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 3. At no time during the course of the Veteran's appeal have the symptoms of her service connected GERD been manifested by symptoms of pain, vomiting, material weight loss, hematemesis, melena, moderate anemia, or other symptoms productive of severe impairment of health. CONCLUSIONS OF LAW 1. The criteria for a 30 percent disability rating for gastroesophageal reflux disease with esophagitis were met as of July 25, 2008, but not earlier. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.114, Diagnostic Code 7346 (2014). 2. From September 26, 2008, the criteria for a disability rating higher than 30 percent for gastroesophageal reflux disease with esophagitis have not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.20, 4.114, Diagnostic Code 7346 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Duty to Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). With respect to the Veteran's claim for an increased initial rating for gastroesophageal reflux disease, VA has met its duty to notify for this claim. Service connection for this issue was granted in a September 2008 rating decision. The Veteran is now appealing the downstream issue of the initial rating that was assigned. Therefore, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1131 (Fed. Cir. 2007), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Moreover, neither the Veteran, nor her representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of VA's notices or other development. See Shinseki v. Sanders, 129 U.S. 1696 (2009) (clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Thus, adjudication of his claim at this time is warranted. The record establishes that the Veteran has been afforded a meaningful opportunity to participate in the adjudication of her claim. Thus, there is no prejudice to the Veteran in the Board's considering this case on its merits. The Board finds the duty to notify provisions have been fulfilled, and any defective notice is nonprejudicial to the Veteran and is harmless. The Board finds that all relevant evidence has been obtained with regard to the Veteran's claim, and the duty to assist requirements have been satisfied. Private treatment records identified by the Veteran are associated with the claims file; records from the Northgate Family Practice dated from 1999 to 2009; Family Care Physicians dated in 1996, 1998, 2002, and 2003; the Jewish Hospital dated in 1998; and Dr. Cox dated in 2008 are associated with the claims file. Treatment Records from an Air Force Base medical facility dated from 1999 to 2006 are associated with the claims file. VA treatment records dated from 2008 to 2010 are associated with the file. The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claim. In December 2005, December 2008, and August 2009, the Veteran specifically informed VA that she had no additional evidence or information to submit. The Veteran underwent VA examinations in September 2004, December 2007, and July 2009 to obtain medical evidence as to the nature and severity of gastroesophageal reflux disease with esophagitis. The Board finds that the VA examinations are adequate for adjudication purposes. The examinations were performed by medical professionals based on a review of claims file, a solicitation of history and symptomatology from the Veteran, and a thorough examination of the Veteran. The examiners carefully examined the Veteran and the examination reports are accurate and fully descriptive, and fully address the criteria necessary to effectively evaluate the Veteran's service connected disability. The Board finds that for these reasons, the Veteran has been afforded an adequate examination. The Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). Moreover, neither the Veteran nor his representative has objected to the adequacy of any of the examinations conducted during this appeal. See Sickels v. Shinseki, 643 F.3d, 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"). The Board finds that the duties to notify and assist the Veteran have been met, so that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (2014). Where there is a question as to which of two ratings should be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). It is not expected that all cases will show all the findings specified. However, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2014). Under 38 C.F.R. § 4.20, evaluation by analogy is permitted where the rating schedule does not provide a specific diagnostic code to rate the disability. 38 C.F.R. § 4.20 (2014). In deciding this appeal, VA has specifically considered whether separate ratings for different periods of time are warranted, assigning different ratings for different periods of the Veteran's appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran asserts that a higher rating is warranted for her service-connected gastroesophageal reflux disease with esophagitis (GERD). A 10 percent rating is currently assigned from October 7, 2003 by analogy under Diagnostic Code 7346 and a 30 percent rating is assigned from September 26, 2008. The Veteran asserts that the 30 percent rating should be assigned from October 7, 2003. See the notice of disagreements dated in September 2008 and August 2009. GERD is not specifically listed in the rating schedule. In this case, GERD is rated, by analogy, as hiatal hernia, under 38 C.F.R. § 4.114, Diagnostic Code 7346. Under Diagnostic Code 7346, a 10 percent rating is warranted when there is evidence of two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is warranted if there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4114, Diagnostic Code 7346 (2014). In the notice of disagreement received on September 26, 2008, the Veteran stated that she took Zegerid twice a day for the reflux and the reflux continued on a daily basis. She stated that the previous medication, Prevacid, was no longer effective. The Veteran indicated that the reflux was a daily occurrence, spasms were frequent, and substernal pain and uncomfortable swallowing were weekly. She stated that the mucus from the GERD builds up in her throat and leads to uncontrollable coughing. The Veteran stated that she had difficulty sleeping at night due to the coughing and burning in the throat due to reflux. In a September 2009 statement, the Veteran indicated that she agreed with the 30 percent rating assigned from September 26, 2008 and she argues that the 30 percent rating should be assigned from October 7, 2003 since the evidence of record shows that she had all of the conditions associated with the GERD prior to the date she filed the claim. Based on a review of the evidence, the Board concludes that a rating in excess of 10 percent is not warranted for the GERD prior to July 25, 2008. As will be explained, prior to that date, the evidence does not establish that the Veteran's service-connected GERD was manifested by persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, that was productive of considerable impairment of health. Moreover, for no distinct period of time during the course of the Veteran's appeal has it been shown that her GERD symptoms included pain, vomiting, material weight loss, hematemesis, melena, anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Diagnostic Code 7346. The weight of the competent and credible evidence establishes that prior to July 25, 2008, the service-connected GERD was manifested by occasional or intermittent symptoms not persistent symptoms and the disability was not productive of considerable impairment health. A November 2003 Family Care Physicians treatment record indicates that the Veteran reported on and off symptoms and her GERD was noted to be stable. The September 2004 VA examination report indicates that the Veteran denied experiencing any trouble swallowing liquids or solids, but did reported experiencing some substernal burning to the throat (that she acknowledged was resolved by medication), as well as symptoms of pulsing or muscle spasm in the lower substernal area that was nonradiating; she described the discomfort as a 2 out of 10 (1 to 10 with 10 most severe) and noted that it was not accompanied by any arm pain. She stated that she did not have substernal burning or heartburn, hematemesis, or melena. She stated that she had some reflux but it was rare and the last time it occurred was one month ago. She stated that she had some regurgitation and some nausea which she reported was one to two times a month for two hours and was precipitated by eating chocolate. She denied having vomiting, anemia, or dilation and denied having ever experienced hematemesis or melena. She was currently taking Prevacid with no side effects from this medication. On examination, the Veteran was noted to be overweight, weighing 215 pounds. In a November 2004 statement, the Veteran indicated that she had spasms in her chest and the spasms increased when she was under stress. She reported having occasional heartburn and reflux if she deviated from her diet. The Veteran stated that the Prilosec was not enough and she changed to Prevacid in January 2003 and it worked better. She reported that if she kept on a restricted diet, stayed away from chocolate, and took her medications as prescribed, she did okay except for the occasional flare-up of GERD. Treatment records from Northgate Family Practice dated in August 2004 and December 2004 indicate that the Veteran reported that the GERD symptom were okay if she took the Prevacid routinely and if she missed a dose, she had symptoms. A February 2005 treatment record indicates that the Veteran reported having chest pain at times associated with her dyspepsia. The physician noted that the atypical chest pain was likely anxiety. A May 2005 treatment record indicates that the GERD was stable. It was noted that the reflux and heartburn were stable on Protonix. In an April 2005 statement, the Veteran indicated that she started taking Prevacid in January or February 2003 and this medication worked very well if she took it as prescribed. She stated that she had the occasional flare-up and had an attack in July 2004. In a July 2005 statement, the Veteran indicated that the GERD was currently in control as long as she took the prescribed medicine Protonix and she avoided foods that aggravated the condition. The August 2005 and October 2005 treatment records from Northgate Family Medicine indicate that the GERD was stable. An October 2005 statement from Northgate Family Medicine indicates that the Veteran had a long history of GERD and recently she has been treating the GERD with Protonix without breakthrough symptoms. A March 2006 treatment record indicates that the GERD was stable and the Veteran had no chest pain or dysphagia. A May 2007 record indicates that the Veteran was doing well on Protonix. An August 2007 record indicates that the GERD was stable and was better than several years earlier. The Veteran was provided with a VA examination in December 2007 at which she reported that her GERD had been intermittent with remissions. She indicated that the last time she was incapacitated due to the disease was in 1998. She denied experiencing episodes of hematemesis or melena. She reported experiencing nausea occasionally, but not all the time. She had vomiting less than weekly. She reported that she had to take two Protonix if she had tightness in her stomach and this seemed to be helpful. The examiner noted that the Veteran's response to treatment was fair, noting that she did not experience any current side effects. Examination revealed no signs of significant weight loss or malnutrition. There was no sign of anemia. The examiner indicated that the GERD caused no significant effects on her usual occupation and the reflux symptoms did not stop the Veteran from being able to work. In a February 2008 statement, the Veteran indicated that she had to increase her medication, Protonix, to help combat the discomfort in her esophagus after a dental clamp was went down her throat. In an April 2008 statement, the Veteran indicated that her GERD had increased in severity and another endoscopy was recommended. An April 2008 treatment record notes that the Protonix was increased. Records from Dr. Cox, a gastroenterologist, dated in April 2008 indicate that the Veteran was complaining of dysphagia and odynophagia in spite of appropriate therapy. It was noted that the Veteran had a history of reflux and she had been on Protonix therapy and had always supplemented with antacids and over the counter remedies and recently, she had been experiencing progressive symptoms, such as odynophagia and pain with liquids and solids. She explained that food went down slowly. The impression was a lifelong history of reflux disease with progressive symptoms with dysphagia and odynophagia, chest pain, burning, and some epigastric tenderness. She was scheduled for a esophagogastroduodenoscopy in May 2008. The esophagogastroduodenoscopy report indicates that the impression was normal upper third and middle third of the esophagus, LA Grade B esophagitis, a few small papules with no stigmata of recent bleeding in the stomach, gastric mucosal abnormality characterized by erythema, and normal duodenum. In a July 2008 report, Dr. Cox indicated that the upper endoscopy and dilation showed evidence of what looked like grade II esophagitis and the Veteran was currently on Protonix and Zegerid. Dr. Cox indicated that the reflux had gotten worse and was severe at this point. He acknowledged that the Veteran did not have hematemesis, melena, nausea, or vomiting. It was noted that her dysphagia was better and she would benefit with some weight loss. The Board finds that the weight of the lay and medical evidence shows that prior to this July 2008 letter, the Veteran's service-connected GERD was manifested by two or more symptoms of less severity than the criteria for a 30 percent rating. The weight of the evidence shows that for the time period in question, the GERD was manifested by intermittent or occasional symptoms and flare-ups and the GERD was mostly controlled by diet and medication. The weight of the evidence shows that the GERD was not manifested by persistent symptoms of epigastric distress, dysphagia, pyrosis, and regurgitation, and substernal or shoulder pain which was productive of considerable impairment. In the July 2008 statement, Dr. Cox suggested that the Veteran's reflux was "severe", but provided no explanation for why the GERD was considered to be severe; and again the use of terminology such as "severe" by medical professionals, although evidence to be considered by the Board, is not dispositive of an issue, as all evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Here, as will be discussed below, the Board takes Dr. Cox's categorization of "severe" to mean that the Veteran's GERD caused sufficient impairment to warrant a 30 percent rating. However, of note, Dr. Cox acknowledged that the Veteran did not have hematemesis, melena, nausea, or vomiting, and her dysphagia was better. The Board finds that the characterization that the GERD was severe by Dr. Cox is not sufficient evidence that the GERD more closely approximated the criteria for a 60 percent, but this document marks the first evidence that the Veteran's GERD was productive of persistent symptoms of considerable impairment of health during the time period in question. Prior to the letter that was received July 25, 2008, there is no evidence of material weight loss, moderate anemia, or other signs of considerable or severe impairment of health due to the service-connected GERD. Further, as noted, the weight of the evidence shows that the symptoms due to the GERD were intermittent and occasional, not persistent. Accordingly, the Board concludes that the criteria for an initial disability rating higher than 10 percent for GERD prior to July 25, 2008 are not met. Review of the record shows that the Veteran first reported persistent symptoms in the September 26, 2008 statement, and based on this statement the Veteran was awarded a 30 percent rating. In this statement, the Veteran stated that the reflux continued on a daily basis even though she took Zegerid twice a day. She indicated that the reflux is a daily occurrence, spasms are frequent, and the substernal pain and difficulty swallowing was weekly. She reported difficulty sleeping at night due to the coughing and burning sensation in her throat due to the reflux. She indicated that the reflux distracted her from performing her job at work but she was not claiming individual unemployability. In a December 2008 statement, the Veteran indicated that she had GERD with daily dysphagia (difficulty swallowing both liquid and solids), daily persistent pyrosis (heartburn), and regurgitation multiple times daily. The Veteran indicated that she had frequent substernal burning sensation and pain that occasionally radiates down her arm after swallowing. The Veteran argued that these symptoms caused considerable impairment of health. As such, these complaints are consistent with Dr. Cox's findings in July 2008. Treatment records from the Northgate Family Medicine dated in April 2009 indicate that the Veteran had a better response to Zegerid. A June 2009 record indicates that the Veteran had no gastrointestinal symptoms and her GERD was stable. A July 2009 VA examination report indicates that the Veteran reported that the reflux was more frequent and she had to take a higher dose of the medication. She stated that she had to be careful when she belched due to regurgitation. She stated that she had periods of time where she felt like food was stuck in her throat. It was noted that she took Zegerid and Gavison or other antacid, and she avoided spicy food. She reported that the side effects of the treatment included gas and more frequent bowel movements. She reported having nausea weekly, vomiting less than weekly, near daily dysphagia, esophageal distress several times a week usually associated with dysphagia accompanied with moderate to severe substernal pain, heartburn or pyrosis several time a day, and regurgitation several times a week. She did not have melena or hematemesis. Physical examination revealed that her overall general health was fair. There were no signs of significant weight loss or malnutrition. It was noted that the Veteran had weight gain. It was noted that the GERD caused significant effects on occupational activities and the pain from GERD impacted occupational activities. A September 2010 VA treatment record indicates that the Veteran reported no abdominal pain, nausea, or vomiting. A November 2010 VA treatment record indicates that the Veteran had GERD with persistent symptoms and nocturnal symptoms. It was noted that the Veteran had near daily GERD symptoms. The weight of the lay and medical evidence shows that the service-connected GERD is not productive of material weight loss, vomiting, hematemesis, melena, moderate anemia or other symptom combinations productive of severe impairment of health. The evidence of record shows that the Veteran has had weight gain, not material weight loss. She has consistently denied hematemesis and melena. She reported having vomiting on occasion, not frequently enough to cause severe impairment in health. The July 2009 VA examination report indicates that the Veteran's general health was fair. The weight of the evidence does not show severe impairment of health due to the GERD. Accordingly, the Board concludes that the criteria for an initial disability rating higher than 30 percent for GERD are not met. The preponderance of the evidence is against the Veteran's claim for an increased initial evaluation and the claim is denied. The Board has also considered whether referral for an extraschedular rating is warranted for the service-connected ulcerative colitis. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Id. at 115. Here the schedular rating criteria used to rate the Veteran's GERD, reasonably describe and assess the Veteran's disability level and symptomatology. Diagnostic Code 7346 specifically provides for disability ratings based on symptoms which include epigastric distress, dysphagia, pyrosis, regurgitation, and substernal pain. See 38 C.F.R. § 4.114. The 10 percent and 30 percent ratings under Diagnostic Code 7346 were granted based symptoms of epigastric distress, dysphagia, regurgitation, substernal pain, pyrosis, and heartburn. These symptoms are part of or similar to symptoms listed under the schedular rating criteria. Thus, the demonstrated and reported manifestations are contemplated by the provisions of the rating schedule. Moreover, the schedular rating criteria provide that a higher rating is available if the totality of the Veteran's symptomatology causes either considerable or severe impairment of health. In so doing, the Board necessarily considers the entirety of the Veteran's symptomatology within the context of the schedular rating criteria. As such, the Veteran's disability picture is reasonably contemplated by the rating schedule, and the assigned schedular evaluation is adequate. Accordingly, referral for consideration of an extra-schedular evaluation is not warranted. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b) ] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. In this case, there is neither allegation nor indication that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Veteran has not alleged that she is unemployable on account of the service-connected GERD and she indicated that she was not filing for TDIU. See the September 2008 statement. Thus, the Board finds that Rice is inapplicable. ORDER A rating in excess of 10 percent for GERD prior to July 25, 2008 is denied. A 30 percent rating for GERD is granted as of July 25, 2008, subject to the laws and regulations governing the award of monetary benefits. A rating in excess of 30 percent for GERD is denied. ____________________________________________ MATTHEW W. BLACKWELDER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs