Citation Nr: 0814588 Decision Date: 05/02/08 Archive Date: 05/12/08 DOCKET NO. 06-08 981 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a rating in excess of 50 percent for service- connected post-traumatic stress disorder (PTSD). WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD K. M. Schaefer, Associate Counsel INTRODUCTION The veteran served on active duty from February 1968 to February 1970. He is the recipient of the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2005 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The veteran and his spouse testified at a videoconference hearing before the undersigned in February 2008. A transcript of the hearing is associated with the claims file. Subsequent to this hearing, the veteran submitted additional evidence consisting of a VA treatment record dated in November 2005, a personal statement, and documentation from his employer of disciplinary actions against the veteran at work. See 38 C.F.R. § 20.1304 (2007). The Board notes that the veteran waived agency of original jurisdiction (AOJ) consideration of this evidence. Id. Therefore, the Board may properly consider this evidence in rendering its decision. The Board observes that the RO was in the process of developing claims for service connection for emphysema, increased ratings for diabetes mellitus type II, hypertension, and peripheral neuropathy, and a total rating due to individual unemployability. These claims are, therefore, referred to the RO for continued appropriate action. In addition to the instant claim, the veteran had appealed a claim for service connection for a heart disorder. However, the veteran failed to perfect his appeal on this issue, and thus, it is not before the Board at this time. FINDING OF FACT Service-connected post-traumatic stress disorder (PTSD), at its most severe, is productive of occupational and social impairment with reduced reliability and productivity manifested by increased startle response, irritability, hypervigilance, and occasional suicidal thoughts; feelings of sadness, hopelessness, and arousal; low interest, energy and motivation; difficulty sleeping; outbursts of anger with family and coworkers; memory problems; average judgment and insight; appropriate affect; normal speech; focused and coherent thought processes; good grooming and hygiene; and a Global Assessment of Functioning (GAF) score of 44. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for service-connected PTSD have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist With respect to the veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his possession that pertains to the claim. Prior to initial adjudication of the veteran's claim, a letter dated in [month/year] fully satisfied the duty to notify provisions elements 2, 3, and 4. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187; Pelegrini II. In order to satisfy the first Pelegrini II element for an increased-compensation claim, section 5103(a) compliant notice must meet the following four part test: (1) that the Secretary notify the claimant that, to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life; (2) if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant; (3) the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life; (4) the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation, e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). For the following reasons, the Board finds that the elements of the Vazquez-Flores test have either been met or that any error is not prejudicial. Preliminarily, the Board notes that the notice provided in this case was issued prior to the decision in Vazquez-Flores. As such it does not take the form prescribed in that case. Failure to provide pre-adjudicative notice of any of the necessary duty to notify elements is presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). The Secretary has the burden to show that this error was not prejudicial to the veteran. Id., at 889. Lack of prejudicial harm may be shown in three ways: (1) that any defect was cured by actual knowledge on the part of the claimant, (2) that a reasonable person could be expected to understand from the notice what was needed, or (3) that a benefit could not have been awarded as a matter of law. Id., at 887; see also Mayfield v. Nicholson, 19 Vet. App. 103, (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Federal Circuit indicated that this was not an exclusive list of ways that error may be shown to be non prejudicial. See Sanders, at 889. In order for the Court to be persuaded that no prejudice resulted from a notice error, the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair. See id.; see also Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). Prior to the initial adjudication of the claim, the RO sent the veteran letters in March 2005 and March 2006, which requested that the veteran provide evidence describing how his disability had worsened. In addition, the veteran was questioned about the effect that worsening has on his employment and daily life during the course of the VA examinations performed in association with this claim. The veteran provided statements (lay and personal), in which he details the impact of his disability on his family life. The Board finds that the notice given, the questions directly asked and the responses provided by the veteran both on examination, in his own statements, and his personal hearing show that he knew that the evidence needed to show that his disability had worsened and what impact that had on his employment and daily life. As the Board finds veteran had actual knowledge of the requirement, any failure to provide him with adequate notice is not prejudicial. See Sanders, supra. The Board finds that the first criterion is satisfied. See Vazquez-Flores. As to the second element, the Board notes that the veteran is service connected for PTSD. As will be discussed below, PTSD is rated under Diagnostic Code 9411. This is the only Diagnostic Code to rate this disability and it is not cross referenced to any other Codes for the purposes of evaluation. See id. Furthermore, there is no single measurement or test that is required to establish a higher rating. On the contrary, entitlement to a higher disability rating would be satisfied by evidence demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life. See id. The Board finds that no more specific notice is required of VA and that any error in not providing the rating criteria is harmless. See Vazquez-Flores. As to the third element, the Board notes that the veteran was provided such notice in a March 2006 letter. The Board finds that the third element of Vazquez-Flores is satisfied. See id. As to the fourth element, the March 2005 and 2006 letters did provide notice of the types of evidence, both medical and lay, including employment records, that could be submitted in support of his claim. The Board finds that the fourth element of Vazquez-Flores is satisfied. See id. In light of the foregoing, the Board finds that the requirements of Vazquez-Flores are met. The Board, therefore, finds that the requirements of Pelegrini II are met and that the VA has discharged its duty to notify. See Pelegrini II, supra. The RO provided content-compliant VCAA notice in March 2006. While this notice was not timely, the veteran, who is represented, subsequently had the opportunity to submit additional evidence. The RO failed to readjudicate the claim. However, as indicated above, the veteran waived RO consideration of this evidence. The failure by the RO to conduct a subsequent readjudication is therefore not prejudicial because the result of such a readjudication on exactly the same evidence and law previously considered would be no different than the previous adjudication. A remand would be utterly useless; the Board finds that there is no prejudice to the veteran. See Medrano v. Nicholson, 21 Vet. App. 165, (2007). VA has also fulfilled its duty to assist the veteran in making reasonable efforts to identify and obtain relevant records in support of the veteran's claim and providing him with a VA examination. VA treatment records and January 2004, April 2005, and September 2006 VA examination reports were reviewed by both the AOJ and the Board in connection with adjudication of his claim. The veteran has not identified any additional, relevant records that VA needs to obtain for an equitable disposition of his claim. Based on these facts, the Board concludes that the medical evidence of record is sufficient to adjudicate the veteran's claim without further development. Thus, the Board finds that additional efforts to assist or notify the veteran in accordance with VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran); 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). VA has satisfied its duty to inform and assist the veteran at every stage in this case. Therefore, he will not be prejudiced by the Board proceeding to the merits of the claim. II. Analysis Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2007). 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran's service-connected disabilities. 38 C.F.R. § 4.14. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the veteran's service-connected PTSD. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations that would warrant an exposition of remote clinical histories and findings pertaining to this disability beyond that which is set out below. In an increased rating case the present disability level is the primary concern and past medical reports do not take precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in Fenderson v. West, 12 Vet. App. 119 (1999), the Court discussed the concept of the "staging" of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28. While this appeal was pending, the Court also held that staged ratings are appropriate for increased rating claims when factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Therefore, in accordance with Hart, the Board has considered the propriety of staged ratings in evaluating the veteran's service-connected disability. The veteran's service-connected PTSD is assigned a 50 percent rating evaluation pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9411 (2007). The veteran contends that his symptomology is worse than is contemplated under such rating, to include affecting his home life and employment, and that a higher rating should, therefore, be assigned. The regulations establish a General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. Ratings are assigned according to the manifestations of particular symptoms. However, the use of the phrase "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve only as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM- IV). The criteria for a 50 percent rating are: Occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. The criteria for a 70 percent rating are: Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. The criteria for a 100 percent rating are: Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Diagnostic Code 9411. An April 2005 VA examination report shows that the veteran stated that he had been married for 32 [sic] years and had contact with three grown children and an 18 year-old granddaughter. He reported that he had been employed as a sanitation worker for 23 years and that he prided himself on having a good work ethic. The veteran indicated that he had feelings of sadness, hopelessness, and arousal, low interest, low energy and motivation, difficulty sleeping, hypervigilance, outbursts of anger with family and coworkers, and memory problems. He revealed persistent suicidal ideas, but no plans to act on them. The examiner observed good hygiene and cooperative interpersonal style. Judgment and insight were reported as good and affect, appropriate. Speech was normal in rate and flow, and thought processes were focused and coherent. No evidence of delusions, hallucinations, or homicidal ideation was noted. The examiner administered the Clinician- Administered PTSD scale, and found that the veteran's score indicated PTSD in the moderate to severe range. Major depressive disorder was also diagnosed and a GAF score of 44 was assigned. At the September 2006 VA examination, the veteran reported that he had some memory problems, disturbed sleep, irritability, worry about finances, and a tendency to isolate himself. He indicated that he had been married since 1971 to his present wife and that he had close, loving relationships with his three children and grandchild and his mother. He further stated that he saw two of his children and a brother daily and that he had traveled to see his son, as well as another brother and his family, who lived in Texas. He also reported that he saw his sister weekly. However, he revealed that he has reduced social activity and leisure pursuits, although the examiner noted that this was in large part due to the veteran's being on "community control," i.e., house arrest, since 2003 for a cocaine conviction. The veteran revealed that he had not done cocaine since 2005, but that he consumed 18 beers per day. He indicated that he had been terminated from his job because he was seen as a troublemaker at work and bad for the company's image, but that he had been reinstated as a result of union intervention. The examiner observed fair grooming and hygiene, good eye contact, appropriate rapport and affect, and no inappropriate behaviors. The veteran was reported to be alert, calm, and poised with no significant anxiety, fully oriented with good memory and concentration, and average insight, judgment, and comprehension. The examiner noted that his speech was fluent, of normal rate, well articulated, logical, relevant, coherent, and goal-directed. The veteran denied suicidal and homicidal ideation and exhibited no delusions, hallucinations, or disorders of thought. The Board observes that the examiner found it significant that none of the veteran's treatment records or previous VA examinations reflected the veteran's substance abuse or community control. Overall, the examiner assigned a GAF score of 59, noting that it reflects the cumulative impact of the veteran's substance abuse, alcohol dependence, and psychiatric diagnoses. He indicated that a separate GAF score for alcohol dependence would be 62, for antisocial personality traits, 64, and for PTSD, also 64. The examiner found the greatest portion of the veteran's psychosocial dysfunction to be attributable to his alcohol dependence, cocaine dependence, and resulting legal and financial problems. The examiner diagnosed alcohol dependence (primary), cocaine dependence (in self-reported remission), and PTSD by history. The Board observes that VA treatment records dated between September 2003 and April 2006 are also of record. April 2005 and May 2005 records reflect that the veteran was exhibiting circumstantial thoughts and irritability, but that his affect was congruent, and he was alert and oriented to time, place, and person. The April 2006 record reflects that the veteran experienced panic when he ran out of one of his medications, and that he dreaded going to work. Additionally, at his February 2008 hearing, the veteran testified that he had difficulties at work due to the noise and the number of people, requiring him to take breaks. However, the circumstantial speech and panic appear to be isolated symptoms, and the overall symptomology reflected by treatment records and the veteran's testimony is no more severe than the symptomology previously discussed. The Board also notes that the veteran has submitted a report from his employer revealing warnings for absenteeism, misconduct, negligence/carelessness, and safety issues between September 1989 and September 2005, and a termination in August 2003. However, the report does not reflect the circumstances leading to these warnings, and the veteran indicated at his September 2006 VA examination that he is viewed as a troublemaker due to his legal problems. Records reveal that the veteran has been assigned a GAF score ranging from 44 to 62. A GAF score of 41-50 contemplates serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or serious impairment in social, occupational, or social functioning (e.g., no friends, unable to keep a job). A GAF score of 51-60 contemplates moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). See DSM-IV at 44-47. While a GAF score is highly probative as it relates directly to the veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders, the GAF scores assigned in a case are not dispositive of whether overall improvement has been established; rather, they must be considered in light of the actual symptoms of the veteran's disorder. See 38 C.F.R. § 4.126(a). Additionally, the Board observes that the veteran has had a diagnosis not only of PTSD, but also of major depressive disorder and alcohol dependence. The Board finds that there is an inadequate basis in the record upon which to dissociate the veteran's major depressive disorder symptoms from his PTSD symptoms. See Mittleider v. West, 11 Vet. App. 181 (1998) (when it is not possible to separate the effects of the service-connected condition from a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt on any issue be resolved in the veteran's favor, and that such signs and symptoms be attributed to the service- connected condition). As for his alcohol dependence, the Board observes that the September 2006 VA examiner attributed the greatest portion of the veteran's psychosocial dysfunction to his alcohol dependence and legal and financial difficulties, as opposed to his PTSD. Nevertheless, as the symptoms noted at this examination were not more severe than those reported at the previous examinations, and thus, would not warrant a higher rating, the Board finds no compelling reason to attempt differentiate the cause of the veteran's symptomology as reported at the September 2006 examination from the cause as noted in other records in determining the appropriate rating evaluation. Taking all evidence into account, the Board finds that the veteran's PTSD at its most severe, is productive of occupational and social impairment with reduced reliability and productivity manifested by increased startle response, irritability, hypervigilance, and occasional suicidal thoughts; feelings of sadness, hopelessness, and arousal; low interest, energy and motivation; difficulty sleeping; outbursts of anger with family and coworkers; memory problems; average judgment and insight; appropriate affect; normal speech; focused and coherent thought processes; good grooming and hygiene; and a GAF score of 44. 38 C.F.R. § 4.130, Code 9411 (2007). The Board concludes that the veteran's symptomology at its most severe supports a rating no greater than the 50 percent assigned. Although some of the veteran's symptomology may support a 70 percent rating, particularly his claims of suicidal ideation, the overall picture of his disability for the relevant time period does not more nearly approximate the higher rating. Specifically, the evidence does not indicate that the veteran's symptomology resulted in occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. Further, he did not display symptoms such as obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships. To the contrary, he had worked at the same company for over 20 years, been married to the same person for over 30 years, and had maintained close relationships with siblings, children, and grandchildren. Based on these facts, a rating in excess of 50 percent is not supported by the evidence. Consideration has been given to the veteran's own statements regarding the severity of his symptoms. However, such statements alone are not competent evidence since only those with specialized knowledge are competent to render an opinion concerning the severity of a disability. See Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Board has also considered the staging of ratings in this case as required by Hart. However, at no time during the appeal period has the veteran's symptomology reflected a consistent change in severity of his symptoms as to warrant staged ratings. Further, with regard to the benefit of the doubt doctrine, the Board notes that a preponderance of the evidence is against a rating in excess of 50 percent for the veteran's current symptomology of his service-connected PTSD. Consequently, the doctrine is not applicable in the instant appeal. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Board has contemplated whether the case should be referred for extra-schedular consideration. An extra- schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1) (2007). The Board finds no evidence that the veteran's service-connected PTSD presents such an unusual or exceptional disability picture at any time so as to require consideration of an extra-schedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321(b)(1). The objective medical evidence of record shows that manifestations of the veteran's service-connected disability does not result in a marked functional impairment in a way or to a degree other than that addressed by VA's Rating Schedule. The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155 (West 2002). Generally, the degrees of disability specified in the rating schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER A rating in excess of 50 percent for service-connected PTSD is denied. ____________________________________________ MICHAEL A. HERMAN Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs