Citation Nr: 0810251 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 05-02 302 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE 1. Entitlement to an initial evaluation in excess of 10 percent for right foot neuropathy. 2. Entitlement to an initial evaluation in excess of 10 percent for left foot neuropathy. 3. Entitlement to an initial compensable evaluation for bilateral sensorineural hearing loss. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD W. Donnelly, Associate Counsel INTRODUCTION The veteran served on active duty with the United States Army from March 1955 to March 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision by the New York, New York, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for left and right foot peripheral neuropathy rated 10 percent each, granted service connection for bilateral hearing loss rated 0 percent, and denied entitlement to TDIU. A Notice of Disagreement (NOD) was filed in February 2003, and a Statement of the Case (SOC) was issued in January 2005. The veteran perfected his appeal with the timely filing of a VA Form 9, Appeal to Board of Veterans' Appeals, in January 2005. Supplemental SOCs were issued in July 2006 and February and April 2007. FINDINGS OF FACT 1. Peripheral neuropathy of the right foot is manifested by decreased vibratory and pinprick sensation and an impaired positional sense in a stocking distribution; deep tendon reflexes are slightly reduced. The overall impairment is considered mild. 2. Peripheral neuropathy of the left foot is manifested by decreased vibratory and pinprick sensation and an impaired positional sense in a stocking distribution; deep tendon reflexes are slightly reduced. The overall impairment is considered mild. 3. The veteran's right ear hearing acuity is currently no worse than Level II, and the left ear hearing acuity is currently no worse than Level IV; an exceptional pattern of hearing loss is not shown. 4. The veteran is not unable to obtain or retain substantially gainful employment due solely to service connected disabilities. CONCLUSIONS OF LAW 1. An evaluation in excess of 10 percent for right foot peripheral neuropathy is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.124a, Diagnostic Code 8521 (2007). 2. An evaluation in excess of 10 percent for left foot peripheral neuropathy is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.124a, Diagnostic Code 8521 (2007). 3. A compensable evaluation for bilateral sensorineural hearing loss is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, 4.86, Diagnostic Code 6100 (2007). 4. A total disability rating based on individual unemployability is not warranted. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.340, 3.341, 4.16 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Assist and Notify As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim. VA should notify a claimant of the information and evidence that VA will seek to provide and the information and evidence that the claimant is expected to provide. Proper notice must invite the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). This appeal arises in part from the veteran's disagreement with the initial evaluation following the grant of service connection for right and left foot peripheral neuropathy and bilateral sensorineural hearing loss. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional inquiry is required with respect to notice on these issues. Regarding the claim of entitlement to TDIU, correspondence dated in November 2002 and March 2004 fully addressed all four notice elements and was sent prior to the initial AOJ decision in this matter, as well as prior to readjudication of the matter on appeal. The letters informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. The appellant was also asked to submit evidence and/or information in his possession to the AOJ. VA additionally has a duty to assist the veteran in the development of claims. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records from VA Medical Center New York, as well as obtaining a medical opinion following review of the claims file. The veteran submitted private medical records or statements from the following sources: SI University Hospital; Dr. ABP and Dr. LF of a neurology practice; Dr. GG and Dr. CM, independent podiatrists; Dr. GJB, the primary care physician; Dr PSA, a urologist; and Dr. OAL, a medical consultant for the veteran's representative. The appellant was afforded VA medical examinations in November 2002, January 2003, April and May 2004, and November and December 2006. Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claims that has not been obtained. The veteran has in fact specified that the records of additional treating doctors are no longer available. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Right and Left Foot Neuropathy Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Compensation for service-connected injury is limited to those claims which show present disability. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Here, the veteran's bilateral foot neuropathy is evaluated under Diagnostic Code 8521, which provides ratings for paralysis of the external popliteal nerve. Diagnostic Code 8521 provides that mild incomplete paralysis is rated as 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; and severe incomplete paralysis is rated 30 percent disabling. Complete paralysis of the external popliteal nerve, foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes, is rated 40 percent disabling. The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. Bilateral peripheral neuropathy of the feet was service connected as due to an in-service cold injury, which is rated separately based on other manifestations. The veteran saw Dr. LF for a neurology consultation in February 2001 for complaints of right leg pain and a bilateral numbness and burning sensation. Pain on the hip reportedly began in 1998, when the veteran was struck. There was decreased sensation of both legs in a sock distribution. Gait was normal. There was pain along the paraspinal muscles of the lumbar area. Lumbar radiculopathy and peripheral neuropathy were diagnosed. An MRI showed L5-S1 disc bulging and disc degeneration. An EMG/nerve conduction study showed distal sensory neuropathy of the leg. VAMC New York treatment records for the period of June 2001 to February 2007 reveal complaints of and treatment for peripheral neuropathy of both feet. The veteran complained of bilateral toe numbness in June 2001; vibratory and touch sensations were intact. Decreased sensation with normal pulses were reported in September 2002. He was placed on medication. In February 2004, the veteran complained of pain in the arches of his feet, but the treating podiatrists did not relate this to service connected frostbite. Chronic numbness and tingling of the feet was reported in May 2004. In February 2005, arthritis of the feet was diagnosed, and verified by x-ray. The veteran complained of increasing foot pain and a decreased range of motion was noted. Orthotics, which were provided by VA in June 2005, were noted to be helpful in treating the pain in October 2005. In September 2006, the veteran complained of continued chronic numbness and pain in the feet. Pulses were 2+ bilaterally and sensation was intact. There was pain with movement of the first metatarsal. During a November 2002 VA examination, the veteran complained of bilateral foot pain which had worsened over the years. He described symptoms as burning, pain, and redness. Walking and climbing up and down ladders at work aggravated his complaints. Physical examination showed the feet were cool to the touch, with numbness from the toes to the mid-dorsum. Peripheral neuropathy related to cold injury was diagnosed. The veteran also saw Dr. ABP, a neurologist and partner of Dr. LF, in November 2002 for complaints of low back pain with radiation to the right leg. No complaints of neuropathy or foot pain was noted. Nerve conduction studies and an EMG showed a right L4-L5-S1 radiculopathy with denervation in the paraspinal muscles. Dr. GG, a private podiatrist, examined the veteran in July 2003 for problems with the toenail beds. The veteran complained of foot pain, and testing showed decreased light touch sensation bilaterally. Vibratory sensation was within normal limits. Deep tendon reflexes were reduced. VA neurological and general examinations were conducted in April 2004. The veteran complained of bilateral worsening foot pain. Medications were not helpful in relieving the pain. There was also tingling and numbness of the feet reported, which interfered with proper walking. The veteran specified that the pain was focused in his toes, but was spreading to the arches. He had stopped working as a truck driver because he could not stand for more than 20 minutes due to foot pain, and could not climb the ladder to his truck. He attributed these limitations to peripheral neuropathy. On general examination by a nurse practitioner, deep tendon reflexes were adequate and equal. Sensation to pin and light touch were both intact. A neurologist noted diminished pinprick, light touch, and temperature sensation from the toes to midcalf, bilaterally. Gait was antalgic. The veteran could heel walk, but toe walking caused pain. In December 2004, a VA doctor reviewed these examinations and opined that while there was a documented lumbosacral radiculopathy, the veteran's cold injury was as likely as not a factor in the peripheral neuropathy. VA again examined the veteran in November and December 2006, when he complained of numbness of both feet for 10 or 11 years, mostly on the lateral side, with intermittent burning and aching pain. Symptoms have grown worse over the years, and he reported balance problems, though no falls. Deep tendon reflexes were slightly reduced, with decrease vibratory and pinprick sensation, as well as impaired positional sense. Dr. GJB supplied a statement in January 2007, indicating that the veteran's peripheral neuropathy prevents him for standing for long periods and presents difficulty walking due to pain and numbness of the feet. Dr. OAL, a Disabled American Veterans (DAV) consultant, reviewed the file and state din April 2007 that the veteran had experienced increasing pain while standing. Dr. CM, a podiatrist, responded to a DAV inquiry by completing a questionnaire. He commented that the veteran has significant hallux limitus with degenerative joint disease, necessitating injections, nonsteroid anti- inflammatory medications, regular treatment, and limited weight bearing. The Board finds that currently, peripheral neuropathy does not warrant assignment of greater than a 10 percent evaluation for either foot. Evaluation of this disability is limited to neurological manifestations of disability. Many of the examiners cite arthritis, painful motion, nail abnormalities, reduced circulation, and other symptoms which are not properly considered as part of the peripheral neuropathy. In this case, those symptoms and manifestations have been used to support assignment of the highest possible schedular evaluation for cold injury residuals of each foot. When solely the manifestations reflected in the criteria for Code 8521 are considered, it is clear that no increased evaluation is warranted at this time. Both feet show decreased sensation to light touch, pin prick, and vibration over the foot and lower leg/calf in a stocking or sock distribution. Sensation is not absent, it is merely reduced, and results in only mild impairment. Further, the degree of decrease appears to fluctuate slightly, with some examiners, not even making note of such. The Board specifically does not consider any impact of lumbosacral radiculopathy on the neurological impairment of the lower extremities, as the back condition is not, nor is it alleged to be, service connected. The veteran's complaints show that pain is the major limiting factor, and this is associated with the degenerative changes and hallux limitus by doctors, not with neuropathy. No evaluation greater than 10 percent for mild impairment is warranted for either right or left foot peripheral neuropathy. Bilateral Sensorineural Hearing Loss Relevant laws and regulations stipulate that evaluations of defective hearing range from noncompensable to 100 percent based on the organic impairment of hearing acuity. Hearing impairment is measured by the results of controlled speech discrimination tests together with the average hearing threshold levels (which, in turn, are measured by puretone audiometry tests in the frequencies of 1,000, 2,000, 3,000, and 4,000 cycles per second). See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992) (defective hearing is rated on the basis of a mere mechanical application of the rating criteria). The provisions of 38 C.F.R. § 4.85 establish eleven auditory acuity levels from I to XI. Tables VI and VII as set forth in § 4.85(h) are used to calculate the rating to be assigned. In instances where, because of language difficulties, the Chief of the Audiology Clinic certifies that the use of both puretone averages and speech discrimination scores is inappropriate, Table VIa is to be used to assign a rating based on puretone averages. 38 C.F.R. § 4.85(h). In guidance for cases involving exceptional patterns of hearing impairment, the schedular criteria stipulates that, when the puretone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(a). Additionally, when the puretone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. Each ear will be evaluated separately. 38 C.F.R. § 4.86(b). There is no exceptional patter of hearing impairment in this case. Private audiological testing dated in March 1999 falls outside the appellate period under consideration here, and is not relied upon for evaluation purposes. Further, the raw data supplied has not been analyzed and interpreted by a medical professional for rating purposes. However, this testing is sufficient to establish the presence of a hearing loss disability and to require additional development. The veteran underwent a VA audiology examination in January 2003. At that time, pure tone thresholds, in decibels, were as follows: HERTZ 1000 2000 3000 4000 RIGHT 15 25 65 90 LEFT 20 40 70 85 The average pure tone threshold was 49 in the right ear and 54 in the left ear. Speech audiometry revealed speech recognition ability of 92 percent in the right and left ears. Testing in April 2004 revealed: HERTZ 1000 2000 3000 4000 RIGHT 10 25 65 90 LEFT 20 40 80 75 The average pure tone threshold was 48 in the right ear and 54 in the left ear. Speech audiometry revealed speech recognition ability of 84 percent in the right ear and 92 percent in the left ear. The most recent VA audiometry is dated in December 2006, and shows: HERTZ 1000 2000 3000 4000 RIGHT 20 30 75 85 LEFT 20 40 80 75 The average pure tone threshold was 53 in the right ear and 54 in the left ear. Speech recognition scores were 88 percent in the right ear and 80 percent in the left ear. The most recent testing reveals the worst hearing acuity. The right ear hearing acuity is Level II, as per Table VI. The left ear is assigned a Level IV. Table VIa is not applicable here, as there is no finding that the speech discrimination test is not appropriate or otherwise unreliable. Using Table VII, the respective hearing acuity levels of the left and right ears result in assignment of a noncompensable evaluation. Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). No higher evaluation is available based on the objective testing of record. The claim must be denied. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In this case, the veteran contends that he is unable to maintain substantially gainful employment due to his service- connected disabilities. The veteran is service-connected for residuals of a cold injury of the left foot rated 30 percent, residuals of a cold injury of the right foot rated 30 percent, peripheral neuropathy of the right foot rated 10 percent, peripheral neuropathy of the left foot rated 10 percent, tinnitus rated 10 percent, and noncompensable bilateral sensorineural hearing loss The veteran's overall combined disability rating is 70 percent. Moreover, because the cold injury residuals and peripheral neuropathies arise from a common etiology and all act on the lower extremities, they are treated as a single disability for purposes of fulfilling the schedular criteria. 38 C.F.R. § 4.16(a). He is not service connected for a back disability with radiculopathy, heart disease, hypertension, chronic obstructive pulmonary disease, bladder cancer, or renal cancer. Where, as here, a veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. In determining unemployability status, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the required percentages for service-connected disabilities are met and the service-connected disabilities are found to render the veteran unemployable. 38 C.F.R. § 4.16(a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training and previous work experience, but not to his age or to any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The veteran has repeatedly stated that his service connected disabilities prevent him from working. He states that he cannot stand for extended periods, and he cannot climb ladders, as is required to get into his truck, due to bilateral foot pain. He retired in December 1998, according to his last employer, who did not indicate if disability played any role in his retirement. The veteran was awarded Social Security disability payments in December 2001 based on his restricted ability to perform only light work. Due to lumbosacral radiculopathy, peripheral neuropathy, hypertension, hyperlipidemia, and coronary artery disease with chest pain, the veteran could not lift or carry more than 20 pounds occasionally or 10 pounds frequently, and could not sit, stand, or walk for more than 6 hours. The Social Security Administration finding is not binding on VA. The April 2004 VA audiology examiner opined that the impaired hearing would not prevent employment. In December 2004, upon review of the claims file, to include all the April and May 2004 VA examinations, a VA doctor opined that the veteran's service connected disabilities, related to the cold injury, were not as likely as nonservice connected lumbosacral radiculopathy and bladder cancer to interfere with his employment. During a December 2006 VA general examination, the doctor noted the presence of COPD, hypertension, bladder and renal cell cancer, and neuropathy. He opined that nonservice connected disabilities were responsible for the veteran's unemployability. Dr. HJB indicated on a January 2007 DAV questionnaire that the veteran's unemployability was due to the service connected disabilities. He cited the inability to stand for extended periods and difficulty ambulating due to peripheral neuropathy. The basis of the opinion is unclear, as the doctor stated that he was the primary care physician, but also that he had not treated the veteran for the service connected disabilities. He did review private medical records. In March 2007, on a DAV questionnaire apparently intended to assess psychiatric disabilities, Dr. CM indicated that he had treated the veteran for 5 years, was not the primary provider for psychiatric care, and had not reviewed psychiatric records. He does check "Yes" indicating that the veteran is unemployable due to his service connected conditions. He does not indicate what disabilities he considered as service connected, but in a handwritten note states that the veteran has significant hallux limitus with degenerative joint disease. He had limited weight bearing. Dr. OAL opined in April 2007 that the veteran was unable to pursue gainful employment due to service connected disabilities, based on his review of the claims file. He noted that the veteran had reported pain when standing and was therefore unable to work, and that "his physician" had attributed this to service connected disabilities. After considering all of the evidence of record, the Board finds that the veteran's service connected disabilities do not prevent him from obtaining or retaining substantially gainful employment; he is not unemployable. The service connected disabilities, particularly of the feet, have resulted in significant impairment of his ability to perform certain tasks, such as climbing ladders or standing for extended periods. The veteran has repeatedly stated that these duties were central to his job as a truck driver; the medical evidence supports his contentions that he cannot perform these duties. However, as the Social Security Administration found, there remains a class of work which the veteran can perform. He would be capable of performing a more sedentary job which allowed him to sit and not have to climb into a truck, considering solely his service connected disabilities. While the veteran is impaired from performing his usual job by service connected disabilities, those disabilities leave unaffected the ability to do other occupational tasks, many of which would not be beyond his education, training, and prior work experience. For example, he could work as a dispatcher in an office setting. The claim must be denied. ORDER An evaluation in excess of 10 percent for right foot peripheral neuropathy is denied. An evaluation in excess of 10 percent for left foot peripheral neuropathy is denied. A compensable evaluation for bilateral sensorineural hearing loss is denied. Entitlement to a total disability rating based on individual unemployability is denied. ____________________________________________ DENNIS F. CHIAPPETTA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs