Citation Nr: 0002539 Decision Date: 02/01/00 Archive Date: 02/10/00 DOCKET NO. 98-07 833 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to service connection for arthritis of the knees. 2. Entitlement to service connection for disability of the cervical spine, to include as secondary to degenerative disc disease of the lumbar spine, with healed laceration scars. 3. Entitlement to service connection for disability of the thoracic spine, to include as secondary to degenerative disc disease of the lumbar spine, with healed laceration scars. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. ATTORNEY FOR THE BOARD Michael A. Holincheck, Associate Counsel INTRODUCTION The veteran served on active duty from November 1941 to January 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The veteran's case was remanded for additional development in January 1999. The case is again before the Board for appellate review. At the time of the Board's January 1999 remand, the issues of entitlement to service connection for emphysema and Barrett's syndrome, as due to tobacco use, were pending adjudication by the RO. Also pending was adjudication of entitlement to service connection for nicotine dependence. The issues were referred back to the RO for further development. The Board notes that, while the case was in a remand status, the veteran was granted service connection for emphysema, due to tobacco use, and assigned a 10 percent rating in October 1999. He was denied service connection for Barrett's syndrome and nicotine dependence by way of the same rating decision. The veteran was notified of the decision by way of a letter dated in November 1999. The veteran's representative submitted a brief on appeal in January 2000 and remarked that the brief also served as a notice of disagreement with the October 1999 rating decision. As the issues have not been developed or certified on appeal to the Board, they are referred to the RO for appropriate action. The Board notes that the issue of entitlement to service connection for arthritis of the knees was denied in November 1994. The veteran disagreed with this decision in September 1995, and a Statement of the Case (SOC) was issued in October 1995. The veteran submitted a substantive appeal in October 1995. Therefore that issue is properly before the Board and will be addressed below. FINDINGS OF FACT 1. The claim of entitlement to service connection for arthritis of the knees is not supported by cognizable evidence demonstrating that the claim is plausible or capable of substantiation. 2. The veteran's diagnoses of degenerative joint disease (DJD) of the cervical and thoracic spine are not related to service and are not aggravated by the veteran's service- connected degenerative disc disease of the lumbar spine, with healed laceration scars. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for arthritis of the knees is not well grounded. 38 U.S.C.A. § 5107 (West 1991). 2. Degenerative joint disease of the cervical spine was not incurred in or aggravated by active service, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1154(b), 5107 (West 1991); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310 (1999). 3. Degenerative joint disease of the thoracic spine was not incurred in or aggravated by active service, or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1154(b), 5107; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Background The veteran served on active duty from November 1941 to January 1946, with combat action in the China-Burma-India theater of operations. A review of his service medical records reflects that he was involved in two airplane crashes. The first occurred in September 1942 in the United States. Records associated with that event relate that the veteran was admitted for observation only. There were no injuries noted at the time, or subsequent to the crash. The veteran was involved in a second crash in April 1944 when his aircraft ditched at sea while on a combat mission. He suffered lacerations, abrasions, and contusions. He complained of stiffness at the time of his admission for treatment. No specific findings pertinent to the knees, cervical spine or thoracic spine were noted. A physical examination report, dated in June 1943 noted the veteran's hospitalization and recovery from malaria. However, there were no defects noted in regard to the veteran's spine or knees. A physical examination report, dated in July 1944, noted that the veteran had multiple laceration scars on his back. The report also noted that the veteran had suffered injuries as described above when his aircraft crashed in April 1944. Again, no defects or problems involving the spine or knees were identified. Finally, a separation physical examination report, dated in October 1945, noted healed lacerations to the lower back from the 1944 crash. No mention was made of any problems involving the spine or knees at that time. The veteran submitted his original claim for service connection for arthritis of his knees in June 1994. He also claimed problems with his "back" from shell fragment wounds. The veteran was afforded several VA examinations in August 1994. The veteran related a history of arthritis and injury to his lower back from the crash in 1944. X-rays of the cervical spine, thoracic spine, and knees were interpreted to show either degenerative changes or evidence of osteoarthritis. The examiner provided the following pertinent diagnosis: bilateral osteoarthritis of the knees, and cervical spondylolysis. The examiner did not make any comment as to etiology of the diagnosed conditions. The veteran submitted a statement in August 1994 wherein he discussed his history of medical treatment for several conditions. However, the veteran did not provide any information of treatment for the conditions on appeal, either immediately after service or any period subsequent. The veteran submitted additional statements in August and September 1996 and included several attachments of copies of military logs detailing his missions in service as well as copies of personal correspondence from the appellant during the same period. The veteran's written statements focused on his malaria, blackwater fever, and dengue fever. The personal correspondence noted the veteran's experience of ditching at sea. However, the only injuries described by the veteran related to lacerations. The copies of military logs provided no pertinent information regarding any injuries. The veteran was granted service connection for degenerative disc disease of the lumbar spine, with healed laceration scars, in September 1996; and, assigned a 20 percent disability rating. In December 1996, he submitted a statement wherein he claimed his lumbar spine disability was more severe than reflected by the 20 percent rating. He also submitted a copy of a letter from J. Leonard Knowles, D.C., dated in November 1996. Dr. Knowles said that he had treated the veteran for severe pain in his upper back, neck, lower back, both knees and right foot since September 1995. Dr. Knowles further stated that physical examination revealed a very severe osteoarthritis and fibrositis of the dorsal and lumbosacral spine. He also noted that the veteran had the most severe displacement of his spine that he had seen in 30 years of practice. Dr. Knowles opined that the condition could have been caused by the veteran's flying and crashes in service. Dr. Knowles diagnoses were fibrochondritis of the cervical, dorsal and lumbosacral spines, and acute myofascitis of the same areas, and osteoarthritic tendencies. The veteran was afforded a VA orthopedic examination in January 1997. The examination focused on the veteran's lumbosacral spine. The report indicates that x-rays were taken of the cervical spine and lumbosacral spine. However, only severe degenerative joint disease (DJD) of the lumbosacral spine was reported and provided as a diagnosis. No diagnosis relating to the veteran's cervical, or thoracic spines or knees was provided. Associated with the claims file is a March 1997 letter from Dr. Knowles. Dr. Knowles provided information of continued treatment provided to the veteran. He remarked that the veteran's case had been one of the most severe cases of dysfunctional cases in his years of practice. He indicated that the veteran had improved over recent months but was not totally well. Included with the letter was a photocopy of a photograph depicting the veteran's back. There were no notations or descriptions describing the picture from Dr. Knowles. However, a handwritten statement indicated that the picture represented improvement in the veteran's condition after months and months. In April 1997, the veteran's representative submitted a statement wherein it was stated that the veteran claimed that his entire back was injured in service and not just his lumbar spine. Thus, the claim for disabilities of the cervical and thoracic spine was submitted for consideration. The veteran submitted a statement, dated in October 1998, wherein he said that the only trauma to his back occurred in service as a result of the two airplane crashes. He further stated that his current spinal problems, to include arthritis of the cervical and thoracic spine, are the direct result of trauma in service. He added that he had asked Craig N. Bash, M. D., to review his file and provide an opinion. Associated with the claims file is a statement from Dr. Bash, dated in November 1998. The statement represents a review of the veteran's records, to include his claims file, and an opinion as to the etiology of the veteran's condition. There is no indication of any actual physical examination of the veteran by Dr. Bash. Dr. Bash noted the veteran's two plane crashes in service and subsequent treatment. He also reviewed the results from the veteran's prior VA examinations. Dr. Bash further noted the letters from Dr. Knowles. Much of Dr. Bash's report is devoted to discussing issues regarding the veteran's tobacco-related claims. In regard to the veteran's spine, Dr. Bash noted the veteran's October 1998 statement denying any other trauma to the spine. He said that in the absence of any subsequent post-service trauma to the spine, it was at least as likely as not, that the inservice trauma to the spine had resulted in the degenerative changes in the entire spine, to include cervical, dorsal, and lumbar. The veteran was afforded a VA orthopedic examination in February 1999. The examiner noted that he had reviewed the veteran's claims file, to include Dr. Bash's opinion. The veteran related a history of injury to his lower back due to a plane crash in 1944. He denied any injury to his thoracic or cervical spine. He also denied any pain to those areas at that time. He said that he had been in constant pain since the injury. The examiner remarked that the veteran later denied any low back pain but described discomfort in the lower back. The veteran said that he had not received any recent treatment for his back. He did not take any medication and had not had any physical therapy for his spine condition. He denied any flare-ups of his cervical and thoracic spine conditions. He said that his lumbar spine complaints were the only thing to have an impact on his daily activities. Physical examination demonstrated no gross deformities of the cervical or thoracic spine. The range of motion of the cervical spine was reported as flexion to 30 degrees, extension to 0 degrees, left and right lateral flexion to 35 degrees, and left and right rotation to 55 degrees, all without pain. He had no tenderness over the cervical or thoracic spine. There was no fatigue, weakness or lack of endurance after repetitive use of the cervical or thoracic spine. The examiner noted that x-rays of the cervical spine revealed mild DJD from C1 to C5 with a grade I spondylolisthesis of C4 on C5, there was also moderately severe DJD noted at C5-C6 and C6-C7. The X-ray report found straightened curature and mild compression of the body of te C3, probably old. X-rays of the thoracic spine showed moderate DJD with noted few bridging osteophytes. The examiner's diagnosis was spondylosis of the cervical, thoracic and lumbosacral spines. In regard to an opinion as to the etiology of the veteran's cervical and thoracic spine arthritis, the examiner stated the following: Given his lack of symptoms of the cervical and thoracic spines as well as the generalized radiographic evidence of degenerative arthritic changes of the cervical, thoracic and lumbosacral spines, I do not see any evidence to suggest that the patient's cervical and thoracic disorders are related to his military service or injury. In addition, given the range of motion of his cervical spine without pain as well as lack of any symptoms related to his cervical or thoracic spine, I do not feel that either of these conditions are aggravated by his lumbosacral disorder. I do not agree with Dr. Bash's opinion in that the patient's military injury, namely the airplane crash which injured his lumbosacral spine is responsible for the changes noted on radiographs of his cervical and thoracic spines. A more likely explanation is that these changes which involve the entire spine including the cervical, thoracic and lumbosacral spines are age related and are the process of generalized arthritic changes over time. II. Analysis Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by wartime service. 38 U.S.C.A. § 1110 (West 1991); 38 C.F.R. § 3.303(a) (1999). In addition, certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1999). Further, a disability is service connected if it is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (1999). Moreover, when aggravation of a nonservice-connected condition is proximately due to or the result of a service- connected condition, such veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the alternative, the chronicity provisions of 38 C.F.R. § 3.303(b) (1999) are applicable where evidence, regardless of its date, shows that a veteran had a chronic condition in service, or during an applicable presumptive period, and still has such condition. Such evidence must be medical unless it relates to a condition as to which under case law of the Court, lay observation is competent. If chronicity is not applicable, a claim may still be well grounded on the basis of 38 C.F.R. §3.303(b) if the condition is noted during service or during an applicable presumptive period, and if competent evidence, either medical or lay, depending on the circumstances, relates the present condition to that symptomatology. Savage v. Gober, 10 Vet. App. 488 (1997). The Board notes that the veteran's representative has raised the argument that the appellant should be considered for service connection under 38 C.F.R. § 3.304(d) (1999), which relates to injuries suffered during combat service. See also 38 U.S.C.A. § 1154(b) (West 1991). The provisions of 38 U.S.C.A. § 1154(b) and 38 C.F.R. § 3.304(d) serve to assist the veteran in establishing the incurrence of a certain injury or disability in service. They do not serve to establish service connection for the claimed disability. In this case, the SMRs clearly establish that the veteran suffered trauma in service by way of the two documented crashes. However, the question is not whether the veteran suffered trauma, but whether he has a current disability that is related to that trauma. Kessel v. West, 13 Vet. App. 9, 14, (1999). A. Knees The veteran is seeking service connection for arthritis of the knees. The legal question to be answered initially is whether the veteran has presented evidence of a well-grounded claim; that is, a claim that is plausible. If he has not presented a well-grounded claim, his appeal must fail with respect to this claim and there is no duty to assist him further in the development of this claim. 38 U.S.C.A. § 5107(a). As will be explained below, the Board finds that this claim is not well grounded. In addition to the statutory and regulation provisions cited above, "[a] determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). Three discrete types of evidence must be present in order for a veteran's claim for benefits to be well grounded: (1) There must be competent evidence of a current disability, usually shown by medical diagnosis; (2) There must be evidence of incurrence or aggravation of a disease or injury in service. This element may be shown by lay or medical evidence; and (3) There must be competent evidence of a nexus between the inservice injury or disease and the current disability. Such a nexus must be shown by medical evidence. Epps v. Gober, 126 F.3d 1464, 1468 (Fed. Cir. 1997), cert. denied sub nom. Epps v. West, 118 S. Ct. 2348 (1998); Caluza v. Brown, 7 Vet. App. 498, 506 (1995). At the outset the Board notes that there is no evidence of a diagnosis of arthritis in service or within the one year period after service to satisfy the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309. The veteran's SMRs are negative for any diagnosis of arthritis in service. Moreover, the first evidence of arthritis of the knees is contained in the August 1994 VA examination report which diagnosed the veteran with bilateral osteoarthritis but did not provide any nexus to service. Subsequent VA examinations also failed to provide any nexus to service for the veteran's bilateral arthritis of the knees. The statements from Dr. Knowles ascribe the veteran's generalized symptomatology to trauma in service without any basis for the opinion. However, this opinion appears to be based on the veteran's self-reported history, as there is no indication that Dr. Knowles had the benefit to review the veteran's claims file prior to rendering an opinion. In Swann v. Brown, 5 Vet. App. 177, 180 (1993), the Court held that, without supporting clinical evidence, an opinion as to etiology of an underlying condition can be no better than the facts alleged by the veteran. The opinion from Dr. Bash does not refer to the issue of the veteran's knees at all. The only evidence the veteran has offered in support of his claim are his own statements that the trauma from his plane crashes in service is the cause of his bilateral knee arthritis. While the veteran is certainly capable of providing evidence of symptomatology, "the capability of a witness to offer such evidence is different from the capability of a witness to offer evidence that requires medical knowledge..." Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Causative factors of a disease, such as arthritis, amount to a medical question; only a physician's opinion would be competent evidence. Gowen v. Derwinski, 3 Vet. App. 286, 288 (1992). Therefore, without competent evidence linking the veteran's current disorder to service this claim must be denied as not well grounded. A well-grounded claim requires more than a mere assertion; the claimant must submit supporting evidence. Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). Since the veteran has submitted no medical or other competent evidence to support his claim that his arthritis of the knees is related to any injury in service, the Board finds that he has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claims are well grounded. 38 U.S.C.A. § 5107. Hence, the benefits sought on appeal are denied. As the foregoing explains the need for competent evidence of a current disability which is linked by competent evidence to service, the Board views its discussion above sufficient to inform the veteran of the elements necessary to complete his application for service connection for the claimed disabilities. Robinette v. Brown, 8 Vet. App. 69, 79 (1995). B. Cervical and Thoracic Spine The Board finds that the veteran's claims are well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, the veteran is found to have presented claims which are not inherently implausible. Furthermore, upon examination of the record, the Board is satisfied that all relevant facts have been properly developed in regard to his claims and that no further assistance to the veteran is required to comply with the duty to assist, as mandated by 38 U.S.C.A. § 5107(a). As with the issue of the veteran's knees, there is no evidence of a diagnosis of arthritis in service or within the one year period after service to satisfy the presumptive provisions of 38 C.F.R. §§ 3.307 and 3.309. The veteran's SMRs are negative for any reference to complaints or treatments related to the cervical or thoracic spine. The SMRs do reflect treatment provided subsequent to plane crashes. However, no injuries at all were noted following the 1942 crash. Further, the records reflecting treatment for the 1944 crash listed injuries to the lower back from lacerations but made no mention of any type of injury to the cervical or thoracic spine. Subsequent physical examinations during service were negative for any pertinent findings. VA x-rays from August 1994 did document evidence of degenerative changes in both the cervical and thoracic spine, however, no nexus to service was provided. The January 1997 VA examination also failed to associate any disability involving the cervical and thoracic spine with any incident of service. Post-service records do not reflect any treatment for the claimed conditions until many years after service. Dr. Knowles said that he began his treatment of the veteran's generalized complaints in 1995. He remarked in 1996 that the veteran's spinal problems might have been caused by his flying and crashes in service. In March 1997, Dr. Knowles provided a vague statement that the veteran was treated for pain throughout his entire body that progressed from injuries sustained many years ago during service. The statements of Dr. Knowles fail to provide any basis for the opinions nor do they reflect any review of the veteran's records to provide a basis for the opinions. At best, the examiner seems to be recording the veteran's history and no more. LeShore v. Brown, 8 Vet. App. 406, 409 (1995); Swann v. Brown, 5 Vet. App. 177, 180 (1993). The medical opinion of Dr. Bash is short and succinct in regard to the veteran's spinal condition. There is little analysis other than a review of the veteran's past records to show that he suffered trauma in service due to the two plane crashes, and the statement from the veteran that he had not suffered any other spinal trauma since that time. Dr. Bash then opined that, absent post-service trauma, it was at least as likely as not that the veteran's DJD of the entire spine was related to the inservice trauma. He did not examine the veteran nor is there any indication that he evaluated actual x-rays, as opposed to radiographic reports, of the veteran's spine to reach his conclusions regarding his opinion. Moreover, he expressed no opinion that the veteran's service- connected lumbosacral disability aggravated any existing cervical or thoracic spine complaints. By contrast, the VA examiner in February 1999 conducted a complete review of the same records as Dr. Bash, as well as the November 1998 opinion from Dr. Bash. The VA examiner noted the same history of trauma in service. However, he also evaluated the veteran's current medical condition by way of a physical examination and reviewed current x-rays of the spine. It was the VA examiner's conclusion that he disagreed with Dr. Bash's opinion, and, that the more likely explanation was that the degenerative changes present were due to the aging process. He also opined that the service- connected lumbosacral disability did not aggravate the cervical and thoracic spine DJD. The Board finds that the totality of the evidence does not support the veteran's claim for service connection, to include on a secondary basis. As recounted, the evidence from Dr. Knowles is of little probative value. The opinion from Dr. Bash does state an affirmative finding; however, the VA medical examiner's opinion from February 1999 provides a more complete opinion of the veteran's current status as related to any prior trauma and is more probative of the issues. The Board is also struck by the lack of any evidence of treatment provided to the veteran after service in light of Dr. Knowles claims that the veteran's condition was the worse that he had seen in his 30 years of practice. The VA examiner found the veteran's cervical and thoracic spines to be lacking in symptomatology. In short, the preponderance of the evidence does not support a grant of service connection. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997) (Board has fact-finding authority to assess the quality of the evidence before it, including the duty to analyze its credibility and probative value, as well as authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence). The Board notes that while the RO adjudicated the veteran's claim with respect to his cervical and thoracic spine as not well grounded, the Board has adjudicated the claim on the merits, thereby raising a question of a possible due process violation in light of Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board finds that the veteran has not been prejudiced by this action as the appellant's claim has been accorded a full review based on all the evidence of record. Moreover, there is no indication from the veteran that there is any missing pertinent evidence. See generally Hickson v. West, 12 Vet. App. 247, 253 (1999). The Board has considered the doctrine of reasonable doubt, but finds that the record does not provide an approximate balance of negative and positive evidence on the merits. Therefore, the Board is unable to identify a reasonable basis for granting service connection for disabilities of the cervical and thoracic spine, to include as secondary to degenerative disc disease of the lumbar spine, with healed laceration scars.. Gilbert v. Derwinski, 1 Vet. App. 49, 57- 58 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. ORDER Entitlement to service connection for arthritis of the knees, disability of the cervical spine, and disability of the thoracic spine is denied. REMAND A review of the veteran's claims file reveals that he was granted service connection for degenerative disc disease of the lumbar spine, with healed laceration scars, in September 1996. The veteran was assigned a 20 percent rating for his disability and notified of the rating action in October 1996. 38 C.F.R. § 4.71A, Diagnostic Code 5292 (1999). Both the rating decision and notification letter informed the veteran that this action represented a complete grant of benefits on appeal for this issue. The Board notes that this was an incorrect statement of the procedural posture of this issue. As held in AB v. Brown, 6 Vet.App. 35, 38 (1993), "on a claim for an original or an increased rating, the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation ?." (Emphasis added). As such, unless the veteran declares otherwise, or is granted the maximum benefit allowed by law or regulation, his claims must continue to be adjudicated. (With exceptions as noted below). The 20 percent rating granted for the veteran's lumbar spine disability in September 1996 does not represent a complete grant of the benefits sought with respect to that issue. The United States Court of Appeals for the Federal Circuit has held that the issue of the amount of compensation for a service-connected disability is a different issue than entitlement to service connection for that disability, and a second Notice of Disagreement (NOD) must be filed by the veteran in order to initiate appellate review concerning the issue of compensation. Grantham v. Brown, 114 F.3rd 1156, 1159 (1997). In this case, the veteran, by way of his representative, requested an "increased", or higher, rating for his lumbar spine disability in December 1996. This statement is construed by the Board to represent a NOD with the original disability rating. As such, separate ratings can be assigned for separate periods of time based on the facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The RO has not yet provided the veteran with a statement of the case (SOC) addressing a higher rating for his lumbar spine disability. Accordingly, the issue of a higher rating for the lumbar spine disability remains on appeal based upon the veteran's original NOD from December 1996. Therefore, that issue is remanded to the RO for issuance of an SOC and such further development as may be necessary. See Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The remanding of this issue must not be read as an acceptance of jurisdiction over the same by the Board. The Board may only exercise jurisdiction over an issue after an appellant has filed both a timely notice of disagreement to a rating decision denying the benefit sought, and a timely substantive appeal. 38 U.S.C.A. § 7105 (West 1991); Roy v. Brown, 5 Vet. App. 554 (1993). The RO should return this issue to the Board only if the veteran perfects his appeal in full accordance with the provisions of 38 U.S.C.A. § 7105. Therefore, this case is REMANDED for the following action: The RO should issue a statement of the case pertaining to the issue of entitlement to a higher rating for degenerative disc disease of the lumbar spine, with healed laceration scars. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). NADINE W. BENJAMIN Acting Member, Board of Veterans' Appeals