Citation Nr: 0811539 Decision Date: 04/08/08 Archive Date: 04/23/08 DOCKET NO. 06-13 773 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina THE ISSUES 1. Whether new and material evidence has been received to reopen the claim of service connection for post-traumatic stress disorder (PTSD). 2. Entitlement to service connection for claimed PTSD. ATTORNEY FOR THE BOARD G. Jackson, Associate Counsel INTRODUCTION The veteran had honorable active duty service from September 1963 to February 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2005 rating decision issued by the RO. The veteran's claim was the subject of previous decisions. The Board has a legal duty to address the "new and material evidence" requirement under 38 C.F.R. § 3.156(a) regardless of the actions of the RO. If the Board finds that new and material evidence has been submitted, it is bound by a statutory mandate to consider the merits of the case. Barnett v. Brown, 8 Vet.App. 1, 4 (1995), aff'd 83 F.3d 1380 (Fed. Cir. 1996); see also McGinnis v. Brown, 4 Vet.App. 239, 244 (1993). FINDINGS OF FACT 1. The RO denied the veteran's original claim of service connection for PTSD in October 1995; he did not file a timely appeal. 2. The veteran's application to reopen the claim of service connection for PTSD disorder was received by the RO on January 13, 2005. 3. The evidence received since the October 1995 decision relates to an unestablished fact and also raises a reasonable possibility of substantiating the claim. 4. The veteran is not shown to have a diagnosis of PTSD that can be linked to a confirmed inservice stressor. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claim of service connection for PTSD. 38 U.S.C.A. § 5108 (West 2002 & Supp. 2007); 38 C.F.R. § 3.156(a) (2007). 2. Service connection for PTSD is not warranted. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 4.125 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VCAA On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107) became law. Regulations implementing the VCAA provisions have since been published. 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). In this case, the Board finds that all relevant facts have been properly developed in regard to the veteran's claim, and no further assistance is required in order to comply with VA's statutory duty to assist him with the development of facts pertinent to his claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Specifically, the RO has obtained records of treatment reported by the veteran and has afforded him a comprehensive VA examination addressing his claimed disorder. There is no indication from the record of additional medical treatment for which the RO has not obtained, or made sufficient efforts to obtain, corresponding records. The Board is also satisfied that the RO met VA's duty to notify the veteran of the evidence necessary to substantiate his claim in a February 2005 letter. By this letter, the RO also notified the veteran of exactly which portion of that evidence was to be provided by him and which portion VA would attempt to obtain on his behalf. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this letter, the veteran was also advised to submit additional evidence to the RO, and the Board finds that this instruction is consistent with the requirement of 38 C.F.R. § 3.159(b)(1) that VA request that a claimant provide any evidence in his or her possession that pertains to a claim. In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and United States Court of Appeals for Veterans Claims (Court) cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., Statements or Supplemental Statements of the Case), is required to meet VA's notification requirements. At the same time, VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A Supplemental Statement of the Case, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. Here, the noted VCAA letter was issued prior to the appealed May 2005 rating decision. Moreover, as indicated above, the RO has taken all necessary steps to both notify the veteran of the evidence needed to substantiate his claim and assist him in developing relevant evidence. The Board is also aware of the considerations of the Court in Kent v. Nicholson, 20 Vet. App. 1 (2006), regarding the need for notification of the evidence and information that is necessary to reopen a claim and what is necessary to establish entitlement to the underlying claim for the benefit sought. However, there is no violation in this case. In the February 2005 letter, the veteran was advised of both the type of evidence needed to reopen his claim and what was necessary to establish entitlement to the claimed benefit. In addition, the Board is also aware of the considerations of the Court in Dingess v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. By a March 2006 letter the RO notified the veteran of the evidence necessary to establish both disability ratings and effective dates in compliance with these requirements. Id. Accordingly, the Board finds that no prejudice to the veteran will result from an adjudication of his claim in this Board decision. Rather, remanding this case back to the RO for further VCAA development would be an essentially redundant exercise and would result only in additional delay with no benefit to the veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). II. New and Material Evidence Generally, a final rating decision may not be reopened and allowed, and a claim based on the same factual basis may not be considered. 38 U.S.C.A. §§ 7104, 7105. Under 38 U.S.C.A. § 5108, however, "if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim." Under 38 C.F.R. § 3.156(a), the revised provisions of which are effective in this case because the veteran's claim was received subsequent to August 29, 2001, "new and material evidence" means evidence not previously submitted to agency decision makers which, by itself or in connection with evidence previously included in the record, "relates to an unestablished fact necessary to substantiate the claim." Such evidence must also "raise a reasonable possibility of substantiating the claim." In this case, the veteran's claim of service connection for PTSD was denied in a decision by the RO in October 1995. The veteran did not timely appeal this decision. Thus, the decision is final under 38 U.S.C.A. § 7105. Thus, the Board must ascertain whether new and material evidence has been received to reopen the claim. Since the October 1995 decision, the veteran has submitted private facility and VA treatment records replete with reference to complaints of and treatment for a psychiatric disorder. The Board notes that in a March 2005 private facility treatment record, the veteran was diagnosed with PTSD. This diagnosis was confirmed in private evaluation reports dated March 2006, December 2006, and April 2007. A VA examination was conducted in June 2006 and the examiner opined that psychometrics, interview, observations, and history do not support a diagnosis of PTSD. This new evidence of record relates to an unestablished fact and also raises a reasonable possibility of substantiating the claim. Accordingly, new and material evidence has been submitted to reopen the claim of service connection for PTSD. III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a), a link established by medical evidence between current symptoms and an in-service stressor, and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2005). The evidence necessary to establish the occurrence of a stressor during service to support a claim for PTSD will vary depending on whether the veteran was "engaged in combat with the enemy." See Hayes v. Brown, 5 Vet. App. 60, 66 (1993). If the evidence establishes that the veteran was engaged in combat with the enemy or was a prisoner of war (POW), and the claimed stressor is related to combat or POW experiences (in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service), the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. Where, however, the VA determines that the veteran did not engage in combat with the enemy and was not a POW, or the claimed stressor is not related to combat or POW experiences, the veteran's lay statements, by themselves, will not be enough to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other credible evidence corroborating the stressor. 38 U.S.C.A. § 1154(b); 38 C.F.R. § 3.304(d), (f); Gaines v. West, 11 Vet. App. 353, 357-58 (1998). Such corroborating evidence cannot consist solely of after- the-fact medical evidence containing an opinion as to a causal relationship between PTSD and service. See Moreau v. Brown, 9 Vet. App. 389, 396 (1996). As noted, however, the diagnosis of PTSD is required before a grant of service connection can be made. Here, the veteran's active duty service from September 1963 to February 1968, included service in the Dominican Republic and the Republic of Vietnam. His awards include the National Defense Service Medal, Armed Forces Expeditionary Medal, Vietnam Service Medal, Vietnam Campaign Medal, and the Combat Infantryman's Badge. His military occupational specialty was general supply specialist. The service treatment records are negative for any complaints or findings referable to PTSD or any other innocently acquired psychiatric disorder. Subsequent to service, a private facility record dated June 1982 documents treatment for a major emotional disorder. During a November 1985 VA mental hygiene clinic consultation, the examiner noted the veteran was obsessed with the idea of being happy; however, the veteran was unaware of his responsibility for his state of happiness or unhappiness. The examiner noted that there was no evidence of PTSD. The veteran was diagnosed with hypochondriacal tendencies and rule out asocial personality or schizoid personality disorder. The examiner suggested a treatment plan for the veteran's "characterological adjustment." During a March 2005 private psychological evaluation, the licensed psychological associate recorded the veteran's military stressors. The veteran reported that while stationed at Fort Bragg he was robbed at knife point. Further, the veteran reported being deployed to a combat zone in the Dominican Republic. He described one instance where he was in a building, pinned down by enemy firing spraying the walls. The veteran stated that he expected to die; but, managed to avoid being shot by flattening himself on the ground. In 1965 he was deployed to Vietnam, where he drove a supply truck. He described having stress from not knowing who or where the enemy was as he navigated his truck through small villages. He reported that at night he performed guard duty of the perimeter of the base in complete darkness. He was always fearful that he would die at any time. He reported that he was so fearful that he contemplated blowing himself up just to end his tension. His reported PTSD symptoms included intrusive flashbacks, traumatic nightmares, night sweats and sleep impairments. He avoided talking about his wartime experiences. He reported that when he returned from the military he was afraid that others would consider him to be crazy. He reported considerable problems with anger. His temper had jeopardized his job on a number of occasions. He reported that he had been arrested for fighting, driving while intoxicated, and non-payment of child support. He had served jail time. Before his military service, he described himself as sociable. He enjoyed playing sports. Since his service in Vietnam he preferred to be by himself and was uncomfortable in crowds. When in a room with strangers, he positioned himself with his back to the wall and constantly scanned the room for signs of danger. He startled easily and had trouble concentrating. He no longer was interested in playing sports. He reported that he was going to kill himself with his rifle, but God spoke to him and he changed his mind. On objective examination, he was soft spoken, his affect was blunted, and he had limited range of emotion. His thought process was linear. His judgment and insight were fair. He had no current suicidal or homicidal ideation. The veteran was diagnosed with PTSD and assigned a Global Assessment of Functioning (GAF) score of 39. The licensed psychological associate stated that due to his traumatic experiences in Vietnam, the veteran experienced severe PTSD symptomatology. The licensed psychological associate further opined that because of his PTSD, the veteran was severely compromised in his ability to sustain work and social relationships. In this regard, the licensed psychological associate explained that the veteran's affective instability and problems with concentration negatively impacted his ability to be productive. The licensed psychological associate concluded the veteran was permanently and totally disabled and unemployable. The licensed psychological associate's findings, opinions and diagnoses of PTSD were confirmed in March 2006, December 2006 and April 2007 evaluation reports. During a June 2006 VA examination, the examiner indicated that the claims file had been reviewed. The examiner reported the Minnesota Multiphasic Personality Inventory-II (MMPI-II), and Mississippi Scale for Combat-Related PTSD tests were administered in conjunction with the examination. The veteran essentially reported an unremarkable childhood, family, and social history. He entered the service and did his training at Fort Jordan, Georgia. His military occupation was supply clerk and driver. He reported that he was deployed in 1965 to the Dominican Republic for 72 days during the "rebellion." He reported that his worst experience occurred when he was in a building, pinned down by rebel fire. He described having to "hit the ground" to save his life. He also reported multiple incidents of seeing dead bodies, which was reportedly difficult. He returned from the Dominican Republic to Fort Bragg and was then deployed to Vietnam in October 1965. In Vietnam his military specialty was transportation. He reported that he did two combat jumps and was one shy of getting his wings. He reported his experience in Vietnam was traumatic, particularly being on guard duty. He reported one night when he was on guard duty with a fellow soldier named Fortner they became so nervous that he contemplated killing himself rather than staying on guard duty. He reported that they were not fired on that night. He reported heavy alcohol and drug use while stationed in Vietnam and the Dominican Republic. After service, he worked multiple odds and ends jobs before he became employed at the Department of Transportation (DOT) in 1992. He had been employed at DOT since that time. He had been married since 1969 and had three children with his wife and five other children outside his marriage. He reportedly had a good relationship with his kids and a poor relationship with his wife. The examiner noted his history of treatment by a private care provider. The examiner observed there was no evidence of testing in the private evaluation reports. The examiner contrasted the private facility reports, indicating the veteran was severely compromised in his ability to sustain work relationships, with the current VA examination which showed the veteran had been employed at the DOT since 1992. The examiner also contrasted the private facility reports, indicating the veteran's difficulty with sustaining relationships, with the current VA examination showing the veteran had been married since 1969 (despite reports of his marriage being poor) and had good relationships with his kids. The examiner also noted VA treatment records showing the veteran had received treatment in 2003 at the VA for depression. An October 2003 VA record indicated the veteran was concerned that he had PTSD. However, the veteran denied nightmares, direct combat exposure, and startle reaction. The examiner also noted the 1985 VA treatment record that did not find evidence of PTSD; but rather, found the veteran had a likely characterological disorder. The veteran reported his most salient psychological problem was having bad memories about the war. His noted traumatic event was being shot at and pinned down during his service in the Dominican Republic. The examiner noted this event would classify as a traumatic event according to the DSM criteria. The veteran also noted his Vietnam guard duty and the examiner noted again this would classify as a traumatic event. The examiner observed that although the veteran reported recurrent thoughts of these events, he was not able to specifically identify the thoughts; but rather, just generally stated he thought about how he could have gotten killed. Additionally he reported recurrent dreams about getting shot at while on guard duty; however, the examiner noted the veteran specifically denied being shot at while on guard duty. The veteran reported that in his mind he hit the ground when he heard loud noises; but, he did not report this actually happened in reality. The examiner noted that when describing reaction to events that remind him of Vietnam, there was no evidence of psychological distress or physiological reactivity. The veteran reported that he tried to avoid memories of Vietnam by drinking and thinking of Jesus. He reported that he avoids being in the dark. The veteran did not report any other things he avoided. There was no evidence that he had difficulty remembering his trauma. The examiner observed that the veteran reported decreased interest in activities; but noted that this was due to his back injury and other physical ailments rather than a result of his service in Vietnam. The veteran reported attachment to his children and exhibited a full range of affect. He did not exhibit a foreshortened future or difficulty falling asleep as a result of hyper arousal. He did report irritability and anger; but, stated he had control of these feelings now. There was no evidence of decreased concentration. He did report symptoms of hypervigilance. The veteran was well groomed and displayed no gross motor disturbance. His speech was clear, coherent, modulated, and relevant to context. He was fully oriented and his memory appeared intact. His mood was good and affect was appropriate to conversation. Form of thought was logical and goal directed. He denied current suicidal or homicidal ideation; however, he reported that he occasionally thought about both without plan. He reported that he occasionally saw things out of the corner of his eye; but, he did not report auditory or visual hallucinations. There was no evidence of psychosis, paranoia or intellectual insufficiency. The examiner stated the veteran's response to psychometric testing was markedly invalid, notable for marked symptom exaggeration characterized as a call for help. His score on the Mississippi was within the range seen by persons experiencing PTSD symptoms. His score on the Combat Exposure Scale was moderate to heavy and appeared somewhat heavier than noted on interview. The examiner concluded that while the veteran did have bad memories associated with his service in Vietnam and the Dominican Republic, his observable symptoms simply did not meet the diagnostic criteria for PTSD. Rather, the veteran's test results seemed to be consistent with a characterological disorder or personality disorder. In this case, as indicated, there exists competent medical evidence both supporting and contradicting the veteran's contentions. It is therefore the responsibility of the Board to weigh this evidence so as to reach a determination on the veteran's claim. See Hayes v. Brown, 5 Vet. App. 60, 69 (1993); Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence). Several considerations must be addressed in cases where there are competent but conflicting medical opinions. First, the Board may only consider independent medical evidence to support its findings and may not provide its own medical judgment in the guise of a Board opinion. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1990). The Board may, however, favor the opinion of one competent medical professional over that of another so long as an adequate statement of reasons and bases is provided. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) Second, the probative value of a medical opinion largely depends upon the extent to which such an opinion was based on a thorough review of a veteran's medical history, as contained in his claims file. In cases where an examiner who has rendered a medical opinion has not had an opportunity to review the veteran's medical records, the medical opinion's probative value is substantially limited. See Miller v. West, 11 Vet. App. 345, 348 (1998) (bare conclusions without a factual predicate in the record are not considered probative); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994). Third, the fact that an opinion is relatively speculative in nature also limits its probative value. For example, an examiner's opinion that a current disorder "could be" related to, or that there "may be" some relationship with, symptomatology in service makes the opinion of the examiner too speculative in nature. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish a causal relationship). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor's statement framed in terms such as "could have been" is not probative). Fourth, the fact that a veteran has received regular treatment from a physician or other doctor is certainly a consideration in determining the credibility of that doctor's opinions and conclusions. That notwithstanding, the United States Court of Appeals for Veterans Claims (Court) has declined to adapt a "treating physician rule" under which a treating physician's opinion would presumptively be given greater weight than that of a VA examiner or another doctor. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); Guerrieri v. Brown, 4 Vet. App. 467-471-3 (1993). Finally, evidence of a prolonged period without medical complaint after service can be considered along with other factors in the analysis of a service connection claim. See Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000). Given its review of the record, the Board finds the June 2006 VA examination report to have greater probative value than the diagnosis opinions offered in the March 2005 private psychological evaluation report and confirmed in March 2006, December 2006 and April 2007. See Owens v. Brown, 7 Vet. App. at 433. The psychological evaluation from March 2005 and confirming reports are of limited probative value in deciding this matter because they gives no indication that they were based on a review of the claims file or other appropriate medical records. See Miller v. West, 11 Vet. App. at 348; Gabrielson v. Brown, 7 Vet. App. at 40. The basis for the medical statement in this regard is not adequately explained. To that end, the Board notes that the RO, in March 2007 and May 2007, specifically requested complete records, including all psychometric testing such as the MMPI and Combat Exposure Scale, used in diagnosing the veteran with PTSD. The Board notes that to date, no response has been received. By contrast, the record shows that the June 2006 VA examination included a thorough review of the entire claims file, including review of the March 2005 and confirming March 2006 private psychological evaluation reports, in conjunction with the opinion offered. In this regard, in the June 2006 VA examination, the examiner explained that there was no evidence of testing in the private evaluation reports to support the diagnosis of PTSD. In addition as noted, the examiner contrasted the private facility reports, indicating the veteran was severely compromised in his ability to sustain work relationships, with the current VA examination which showed the veteran had been employed at the DOT since 1992. The examiner also contrasted the private facility reports, indicating the veteran's difficulty with sustaining relationships, with the current VA examination showing the veteran had been married since 1969 and had good relationships with his kids. The VA examiner concluded that while the veteran did have bad memories associated with his service in Vietnam and the Dominican Republic, his observable symptoms simply did not meet the diagnostic criteria for PTSD. Rather, the veteran's response to psychometric testing was characterized by marked symptom exaggeration. The other evidence of record is the veteran's own lay statements. The Board is aware that the veteran received a Combat Infantryman's Badge from his service in Vietnam, and thus is a combat veteran and entitled to the application of 38 U.S.C.A. § 1154(b) (West 2007). The provisions of this regulation provide that in the case of any veteran who engaged in combat with the enemy in active military service during a period of war, the Secretary shall accept as sufficient proof of service connection of any disease or injury alleged to have been incurred or aggravated by such service, satisfactory lay or other evidence of service incurrence or aggravation if consistent with the circumstances, conditions, or hardships of such service, notwithstanding the fact that there is no official record of such incurrence or aggravation. However, as detailed above, the veteran's service connection claim was not denied on the basis of what he contended occurred during active service. Rather, his claim was denied because the medical evidence is against a finding that the veteran has a current diagnosis of PTSD. Thus, the provisions of 38 U.S.C.A. § 1154(b) (West 2002) would provide no additional benefit to the veteran in the instant case. See Brock v. Brown, 10 Vet. App. 155, 162 ("reduced evidentiary burden provided for combat veterans by 38 U.S.C. § 1154(b) relate[s] only to the question of service incurrence, 'that is, what happened then - not the questions of either current disability or nexus to service, as to both of which competent medical evidence is generally required'" (quoting Caluza, 7 Vet. App. at 507)); Cohen (Douglas) v. Brown, 10 Vet. App. 128, 138 (1997) ("[s]ection 1154(b) provides a factual basis upon which a determination can be made that a particular disease or injury was incurred or aggravated in service but not a basis to link etiologically the condition in service to the current condition"). Thus, even with the provisions of 38 U.S.C.A. § 1154(b) (West 2002), there must be competent medical evidence of both a current diagnosis of PTSD and a link between the current symptoms and an in-service stressor for service connection to be warranted. As the veteran has not been shown to have a diagnosis of PTSD in accordance with 38 C.F.R. § 4.125(a), further discussion of the verification of any alleged in-service stressors is not necessary. Thus, the Board finds the preponderance of the evidence is against the veteran's claim of service connection for PTSD. In reaching this determination, the Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is not applicable in this case because the preponderance of the evidence is against the veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). ORDER As new and material evidence has been received to reopen the claim of service connection for PTSD, the appeal to this extent is allowed. Service connection for PTSD is denied. ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs