Citation Nr: 1122018 Decision Date: 06/07/11 Archive Date: 06/20/11 DOCKET NO. 00-19 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an effective date prior to September 26, 2003, for the award of a separate evaluation for radiculopathy of the left upper extremity. 2. Entitlement to an increased initial evaluation in excess of 20 percent for radiculopathy of the left upper extremity. 3. Entitlement to an increased initial evaluation for post diskectomy degenerative joint disease of the cervical spine, evaluated as 10 percent disabling prior to February 15, 2001, and as 30 percent disabling thereafter. 4. Entitlement to an increased evaluation for residuals of a fracture of the left patella with osteoarthritis of the left knee, evaluated as 10 percent disabling prior to July 10, 2003, and as 20 percent disabling based upon instability thereafter. 5. Entitlement to an increased initial evaluation in excess of 10 percent for residuals of a fracture of the left patella with osteoarthritis of the left knee based upon limitation of motion. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Christopher Murray, Associate Counsel INTRODUCTION The Veteran had active military service from July 1970 to February 1972 and from December 1980 to March 1988 with additional periods of inactive duty for training. This case comes before the Board of Veterans' Appeals (Board) on appeal of a March 2000 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. Jurisdiction of the instant case has been transferred to the RO in Columbia, South Carolina. This case was brought before the Board in September 2003, at which time the claim was remanded to allow the Agency of Original Jurisdiction (AOJ) to further assist the Veteran in the development of his claim. The case is once again before the Board for appellate consideration of the issues on appeal. The issues of increased initial evaluations for radiculopathy of the left upper extremity and residuals of a left patella fracture based on limitation of motion are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. Clarification of Issues on Appeal During the pendency of the instant appeal, the Veteran was awarded a temporary total evaluation for his left knee disability for the period February 16, 2000, to April 1, 2000. As he has been awarded a 100 percent evaluation, in discussing an increased evaluation below, the instant decision will not disturb the previously assigned temporary total evaluation. See 38 C.F.R. § 4.30 (2010); see also AB v. Brown, 6 Vet. App. 35 (1993). With respect to the issues certified to the Board, namely entitlement to an earlier effective date for the award of a 20 percent evaluation for the Veteran's service connected left knee disorder based upon instability, the Board observes this issue is part and parcel of the increased rating issue currently on appeal. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In Hart, the United States Court of Appeals for Veterans Claims discussed the concept of the "staging" of ratings in evaluating medical evidence of record since the filing of a claim for an increased rating. See also Fenderson v. West, 12 Vet. App. 119 (1999). Under Hart, the Board will review the adequacy of the evaluations assigned throughout the appeal period, including the effective date assigned to the 20 percent evaluation based upon instability in question. As such, the effective date issue is moot as a separately appealable issue. Id. FINDINGS OF FACT 1. Revised VA regulations concerning intervertebral disc syndrome and allowing the assignment of separate evaluations for neurological manifestations, such as radiculopathy of the left upper extremity, became effective September 23, 2002. 2. Prior to February 15, 2001, the Veteran's cervical spine disability is manifested by no more than moderate limitation of motion of the cervical spine; there is no competent evidence of ankylosis, severe limitation of motion of the cervical spine or associated neurological symptomatology combining to more closely approximate severe intervertebral disc syndrome 3. From February 15, 2001, to July 31, 2002, the Veteran's cervical spine disability is manifested by no more than severe limitation of motion of the cervical spine; there is no competent evidence of ankylosis or associated neurological symptomatology combining to more closely approximate severe intervertebral disc syndrome. 4. From July 31, 2002, to September 23, 2002, the Veteran's cervical spine disability is manifested by no more than severe limitation of motion of the cervical spine with significant pain and moderate weakness due to left cervical radiculopathy, approximating severe intervertebral disc syndrome; there is no competent evidence of ankylosis, upper extremity muscle atrophy, wrist impairment, or other symptomatology more closely approximating pronounced intervertebral disc syndrome. 5. As of September 23, 2002, orthopedic manifestations of the Veteran's cervical spine disability are manifested by no more than severe limitation of motion of the cervical spine; there is no competent evidence of incoordination, weakness of the cervical spine, ankylosis, or associated neurological disabilities for which the Veteran has not already been evaluated that would warrant a separate compensable evaluation, other symptomatology more closely approximating pronounced intervertebral disc syndrome, nor is there evidence of incapacitating episodes having a total duration of at least six weeks in a twelve-month period. 6. Prior to July 10, 2003, the Veteran's left knee disability is manifested by no more than slight lateral instability. There is no evidence of ankylosis; subluxation or more than moderate laxity; or impairment to the tibia or fibula. 7. As of July 10, 2003, the Veteran's left knee disability is manifested by no more than moderate lateral instability. There is no evidence of ankylosis; subluxation or more than moderate laxity; or impairment to the tibia or fibula. CONCLUSIONS OF LAW 1. The criteria for an effective date of September 23, 2002, but no earlier, for the award of a separate evaluation for radiculopathy of the left upper extremity have been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110 (West 2002); 38 C.F.R. §§ 3.114, 3.159, 3.400 (2010). 2. The criteria for an evaluation of 20 percent, but not greater, prior to February 15, 2001, for post diskectomy degenerative joint disease of the cervical spine have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5290 and 5293 (2002). 3. The criteria for an evaluation in excess of 30 percent for the period February 15, 2001, to July 31, 2002, for post diskectomy degenerative joint disease of the cervical spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5290 and 5293 (2002). 4. The criteria for an evaluation of 40 percent, but not greater, for the period July 31, 2002, to September 23, 2002, for post diskectomy degenerative joint disease of the cervical spine based upon intervertebral disc syndrome have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5293 (2002). 5. The criteria for an evaluation in excess of 30 percent as of September 23, 2002, for post diskectomy degenerative joint disease of the cervical spine based upon limitation of motion have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5290 and 5293 (2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243, General Rating Formula for Diseases and Injuries of the Spine (2010). 6. The criteria for an evaluation in excess of 10 percent for residuals of a fracture of the left patella based upon instability prior to July 10, 2003, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2010). 7. The criteria for an evaluation in excess of 20 percent for residuals of a fracture of the left patella based upon instability as of July 10, 2003, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002). See also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In the instant case, the Veteran received sufficient notification through VCAA notice letters dated July 2001, May 2004, December 2005 and March 2006. These notice letters advised the Veteran what information and evidence was needed to substantiate the claims decided herein and what information and evidence must be submitted by him, namely, any additional evidence and argument concerning the claimed conditions and enough information for the RO to request records from the sources identified by the Veteran. He was specifically told that it was his responsibility to support the claims with appropriate evidence. Finally the letters advised him what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103. During the pendency of this appeal, on March 3, 2006, the Court issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006), which held that the VCAA notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The March 2006 VCAA letter provided such notice. The Board notes that the VCAA letters were sent subsequent to the initial unfavorable agency decision in the instant case. However, the Board finds that any timing defect with regard to VCAA notice was harmless error. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). In this regard, the notice provided to the Veteran by these letters fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and, after the notice was provided, the case was readjudicated and supplemental statements of the case were provided to the Veteran in April and October 2006, June 2007 and February 2010. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (noting that a VCAA timing defect may be cured by the issuance of fully compliant notification followed by a re-adjudication of the claim); see also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005); rev'd on other grounds, Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006) (a (supplemental) statement of the case that complies with all applicable due process and notification requirements constitutes a readjudication decision). In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2010). Service treatment records have been associated with the claims file. Post-service VA and private treatment records and reports have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to assist the Veteran in obtaining records has been satisfied. The Veteran has been provided numerous VA examinations throughout the course of the instant appeal with respect to the issues on appeal. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2010); Wells v. Principi, 327 F. 3d 1339, 1341 (Fed. Cir. 2002). The VA examinations in question are adequate for the purposes of rating the disabilities on appeal, as they involved a review of the Veteran's pertinent medical history and physical examination of the Veteran and provide a discussion of pertinent symptomatology. See generally Barr v. Nicholson, 21 Vet App. 303, 311 (2007). As a final note, the Board again observes the instant case was previously remanded in September 2003 for additional development. Specifically, the Board determined that the Veteran should be provided sufficient notice regarding his claims on appeal, his claims readjudicated and, if his claims continued to be denied, provided a supplemental statement of the case. As discussed above, the Veteran was provided sufficient VCAA notice through May 2004, December 2005 and March 2006 letters, his claims were readjudicated and he was provided a number of supplemental statements of the case. As such, there has been substantial compliance with the Board's September 2003 remand, and adjudication of the claims on appeal may proceed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. Analysis I. Earlier Effective Date The Veteran seeks an effective date earlier than September 26, 2003, for the award of a separate evaluation for radiculopathy of the left upper extremity as related to his service-connected cervical spine disability. Essentially, the Veteran contends that he should be awarded a separate evaluation for radiculopathy of the left upper extremity as of the date he initially filed a claim for service connection for his cervical spine disability. Under governing law, the effective date for a grant of compensation will be the day following separation from active service, or the date entitlement arose if a claim is received within one year after separation from service. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(b)(2)(i) (2010). Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. Id. A claim or application is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p) (2010). Unless specifically provided, the effective date will be assigned on the basis of the facts as found. 38 C.F.R. § 3.400(a) (2010). Where compensation is awarded or increased pursuant to a liberalizing law, or a liberalizing VA issue approved by the Secretary or at the Secretary's discretion, the effective date of such award or increase shall be fixed in accordance with the facts found, but shall not be earlier than the effective date of the act or administrative issue. 38 C.F.R. § 3.114(a) (2010). These provisions are applicable to both original claims as well as claims for increase. Id. Application of new rating criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C.A. § 5110(g) (West 2002). The Veteran initially filed a claim for service connection for a cervical spine disability in July 1999, which was subsequently granted, and was also diagnosed with cervical radiculopathy of the left upper extremity. However, there was no legal entitlement to a separate evaluation for neurological manifestations of spine disabilities at this time. See generally 38 C.F.R. § 4.71a, Diagnostic Codes 5290, 5293 (2002). Rather, as will be discussed in more detail below, orthopedic and neurological manifestations were considered together as a single evaluation pursuant to the criteria applicable to intervertebral disc syndrome. Id. Substantial revisions were made to the diagnostic criteria for evaluating intervertebral disc syndrome, effective September 23, 2002. See 67 Fed. Reg. 54345-54349 (August 22, 2002). The revised regulations, now contained at 38 C.F.R. § 4.71a, Diagnostic Code 5243, allow for evaluation of intervertebral disc syndrome either on its chronic neurologic and orthopedic manifestations or on the total annual duration of incapacitating episodes, whichever would result in a higher evaluation. In the accompanying Note (2) to the revisions (initially codified at Diagnostic Code 5293 but later renumbered as Diagnostic Code 5243), VA specified that associated neurological disabilities were to be evaluated separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. No such provision existed in the rating criteria in effect prior to September 23, 2002. Therefore, an effective date of September 23, 2002, is warranted for a separate evaluation for radiculopathy of the left upper extremity. However, given that the revised provisions did not go into effect until September 23, 2002, there is no legal basis for an effective date prior to September 23, 2002, for the award of a separate evaluation for this disability. II. Increased Evaluations Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also 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; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (extending the concept of "staged ratings" to increased evaluation claims). With respect to the Veteran's left knee disability, as entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Post Diskectomy Degenerative Joint Disease of the Cervical Spine The Veteran's cervical spine disability has been assigned an initial evaluation based upon limitation of motion of the cervical spine of 10 percent prior to February 15, 2001, and 30 percent thereafter, pursuant to 38 C.F.R. § 4.71, Diagnostic Code 5010-5241. See 38 C.F.R. § 4.27 (2010) (hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen). Diagnostic Code 5241 pertains to spinal fusion. However, the Board observes the Veteran has also been diagnosed with degenerative disc disease of the cervical spine with radiculopathy of the left upper extremity. See, e.g., October 2009 VA examination addendum. As such, the criteria pertaining to intervertebral disc syndrome also apply. Initially, the Board observes that the schedular criteria for evaluating disabilities of the spine have undergone revision twice during the pendency of the Veteran's appeal. The first amendment, affecting Diagnostic Code 5293 pertaining to intervertebral disc syndrome, was effective September 23, 2002. 67 Fed. Reg. 54,345 (Aug. 22, 2002). The next amendment affected general diseases of the spine and became effective September 26, 2003. 68 Fed. Reg. 51,454 (Aug. 27, 2003). Because these changes took effect during the pendency of the Veteran's appeal, both the former and revised criteria will be considered in evaluating the Veteran's service-connected cervical spine disability. However, application of the new criteria prior to the effective date of the amended regulation is not allowed. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); Green v. Brown, 10 Vet. App. 111, 116-119 (1997); see also 38 U.S.C.A. § 5110(g) (West 2002). Prior to September 23, 2002, Diagnostic Code 5293 provided a 10 percent evaluation for mild intervertebral disc syndrome and a 20 percent evaluation for moderate intervertebral disc syndrome with recurring attacks. A 40 percent evaluation contemplated severe intervertebral disc syndrome manifested by recurring attacks, with intermittent relief. A maximum 60 percent rating was warranted for pronounced impairment, with persistent symptoms compatible with sciatic neuropathy, with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, with little intermittent relief. A precedent opinion of VA's Office of General Counsel, VAOPGCPREC 36-97 (1997), held that Diagnostic Code 5293 involves loss of range of motion, because the nerve defects and resulting pain associated with injury to the sciatic nerve may cause limitation of motion of the cervical, thoracic, or lumbar vertebrae. As of September 23, 2002, intervertebral disc syndrome (either preoperatively or postoperatively), rated under Diagnostic Code 5293, is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. The criteria contained in Diagnostic Code 5293 provides for a 20 percent evaluation where there are incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent evaluation contemplates incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is assigned when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003); see also 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2010). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. "Chronic orthopedic and neurologic manifestations" means orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1) (2003). When evaluating on the basis of chronic manifestations, evaluate orthopedic disabilities using evaluation criteria for the most appropriate orthopedic diagnostic code or codes. Evaluate neurologic disabilities separately using evaluation criteria for the most appropriate neurologic diagnostic code or codes. Id. Note (2). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id. Note (3). In addition, prior to September 26, 2003, disabilities manifested by limitation of motion in the cervical spine were evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2003). Evaluations of 10 percent, 20 percent and 30 percent were assigned for slight, moderate and severe limitation of motion of the cervical spine, respectively. Also prior to September 26, 2003, ankylosis of the cervical spine was evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.17a, Diagnostic Code 5287 (2003). A 30 percent rating was warranted with favorable ankylosis of the cervical spine and a maximum 40 percent evaluation was warranted with unfavorable ankylosis of the cervical spine. Id. Effective from September 26, 2003, disabilities of the cervical and thoracolumbar spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2010). The Formula provides the following ratings, in relevant part as they apply to the cervical spine: A 10 percent evaluation is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent evaluation is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis or abnormal kyphosis. Id. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent evaluation is warranted where there is unfavorable ankylosis of the entire cervical spine, and a maximum 100 percent evaluation is warranted where there is unfavorable ankylosis of the entire spine. Id. "Unfavorable ankylosis" is defined, in pertinent part, as "a condition in which the entire cervical spine ... or the entire spine is fixed in flexion or extension". See id., Note (5). These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, id., and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine". 68 Fed. Reg. at 51,455 (Supplementary Information). Notes appended to the new General Rating Formula for Diseases and Injuries of the Spine specify that associated objective neurologic abnormalities are to be evaluated separately under the appropriate diagnostic code. Id., Note (1). For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Id., Note (2). Ranges of motion are to be rounded to the nearest five degrees. Id., Note (4). Separate disability ratings are to be given for the thoracolumbar and cervical spine segments. Id., Note (6). Although the criteria under the prior Diagnostic Code 5290 are less defined and numerical ranges of motion were not provided in the prior rating criteria, guidance can be obtained from the amended regulations. In adopting specific ranges of motion to define what is normal, VA stated that the ranges of motion were based on the American Medical Association Guides to the Evaluation of Permanent Impairment, 2nd ed., (1984), which is the last edition of the Guides that measured range of motion of the spine using a goniometer. See supplementary information, 67 Fed. Reg. 56,509 (Sept. 4, 2002). Therefore, even though pre-2003 regulations did not define normal range of motion for the spine, the current definition is based on medical guidelines in existence since 1984. Therefore, there is no inconsistency in applying the current ranges of motion to rating spine disabilities under the old criteria. Prior to February 15, 2001 Prior to February 15, 2001, the Veteran's cervical spine disability has been assigned an initial evaluation of 10 percent based upon slight limitation of motion of the cervical spine. See 38 C.F.R. § 4.71a, Diagnostic Code 5290 (2002). Having considered the evidence of record under the former rating criteria in effect during this period, the Board finds that the Veteran is entitled to an initial evaluation of 20 percent, but not greater, for his cervical spine disability for the period prior to February 15, 2001. In this regard, the Board notes that the Veteran's cervical spine disorder was manifested during this period by subjective complaints of pain, fatigability and decreased range of motion. In addition, there is objective evidence of painful motion, tenderness and moderate limitation of motion of the cervical spine. There is no evidence, however, of severe limitation of motion or ankylosis of the cervical spine, nor is there evidence of more than moderate intervertebral disc syndrome during this period. With regards to range of motion testing, a December 1999 VA examination revealed range of motion, rounded to the nearest five degrees, as follows: forward flexion to 30 degrees, extension to 40 degrees, right lateral flexion to 20 degrees and left lateral flexion to 25 degrees. There is no other evidence of record depicting range of motion testing of the cervical spine during the period prior to February 15, 2001. The Board observes that the limitation of motion reflected in the December 1999 VA examination, particularly on forward flexion, more closely approximates moderate limitation of motion of the cervical spine, warranting a 20 percent evaluation under Diagnostic Code 5290. However, a higher evaluation is not warranted, as the Veteran demonstrated forward flexion of 30 degrees, which is consistent with a moderate loss of range of motion, whereas a 30 percent evaluation contemplates severe loss of range of motion. The Board has also considered whether an evaluation in excess of 20 percent is warranted prior to February 15, 2001, based upon intervertebral disc syndrome. However, based upon the evidence of record, an evaluation greater than 20 percent is not warranted on this basis. In this regard, the Board acknowledges the Veteran was diagnosed with radiculopathy of the left upper extremity throughout the course of the instant appeal. See, e.g., April 1999 SportsMED treatment record. However, the Board observes that, in order to warrant an evaluation in excess of 20 percent, the evidence must demonstrate severe intervertebral disc syndrome manifested by recurring attacks with intermittent relief. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). While the evidence of record reveals the Veteran complains of intermittent pain radiating down the left arm, motor sensory and reflex examinations were equal and active bilaterally. See April 1999 SportsMED treatment record. In addition, a June 2000 nerve conduction study was essentially within normal limits. Finally, an October 2000 statement by Dr. L.A. reports the Veteran has continued to have intermittent episodes of neck pain and upper extremity discomfort. While such symptoms reveal the Veteran suffers from neurological manifestations associated with his cervical spine disability, when combined with moderate limitation of motion of the cervical spine, they do not more closely approximate severe intervertebral disc syndrome. Furthermore, there is no evidence of either favorable or unfavorable ankylosis of the cervical spine. As such, a higher evaluation pursuant to Diagnostic Code 5287 is not warranted prior to February 15, 2001. As such, for the period prior to February 15, 2001, the Board finds that a 20 percent evaluation, but not greater, is warranted for the Veteran's cervical spine disability based upon limitation of motion of the cervical spine. However, the preponderance of the evidence weighs against an evaluation in excess of 20 percent during this period of the Veteran's appeal. See 38 C.F.R. § 4.71a, Diagnostic Codes 5290 and 5293 (2002). February 15, 2001, to July 31, 2002 As of February 15, 2001, the Veteran's cervical spine disability has been assigned an initial 30 percent evaluation based upon limitation of motion under Diagnostic Code 5290. Having considered the evidence of record under both the former rating criteria in effect during this period, the Board finds that the Veteran is not entitled to an evaluation in excess of 30 percent for his cervical spine disability for the period February 15, 2001, to July 21, 2002. In this regard, the Board notes that the Veteran's cervical spine disability was manifested during this period by subjective complaints of pain, fatigability and decreased range of motion. In addition, there is objective evidence of painful motion, tenderness and severe limitation of motion of the cervical spine. There is no evidence, however, of ankylosis of the cervical spine, nor is there evidence of more than moderate intervertebral disc syndrome. With regards to limitation of motion, the Board observes that, at 30 percent disabling, the Veteran is in receipt of the maximum evaluation allowable under Diagnostic Code 5290. As such, a further discussion of limitation of motion is not necessary. The Board has considered whether the evidence of record demonstrates entitlement to an evaluation in excess of 30 percent under 38 C.F.R. § 4.71 Diagnostic Code 5293, pertaining to intervertebral disc syndrome. However, while the evidence shows a diagnosis of cervical radiculopathy of the left upper extremity during this period, the record does not support a finding that the Veteran's symptoms more closely approximate severe intervertebral disc syndrome with recurring attacks and intermittent relief. In this regard, the Board notes that a February 2001 VA examination report notes the Veteran's reflexes were 2+ (normal), active and equal. An August 2001 VA examination report notes the Veteran's deep tendon reflexes of the upper extremities were 3+ (brisker than average), hyperactive and equal. While such symptoms reveal the Veteran suffers from neurological manifestations associated with his cervical spine disability, when combined with the limitation of motion of the cervical spine exhibited during this period of the Veteran's appeal, they do not more closely approximate severe intervertebral disc syndrome. Furthermore, there is no evidence of unfavorable ankylosis of the cervical spine. As such, a higher evaluation pursuant to Diagnostic Code 5287 is not warranted prior to February 15, 2001. As such, the Board finds that the preponderance of the evidence weighs against an initial evaluation in excess of 30 percent during the period February 15, 2001, to July 31, 2002, and the benefit of the doubt rule does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). July 31, 2002, to September 23, 2002 However, the Board finds that an initial evaluation of 40 percent, but not greater, is warranted for severe intervertebral disc syndrome of the cervical spine for the period July 31, 2002, to September 23, 2002, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). In this regard, the Board observes a VA peripheral nerves examination conducted on this date reflects left hand grip of 4/5, with deltoid, biceps and triceps movement impaired due to pain. In addition, sensory examination revealed decreased senses in the glove stocking manner for pin prick, vibration, pressure and light touch below the elbow in the left upper extremity. The examination report reflects the Veteran has "significant pain" and "moderate weakness" due to left cervical radiculopathy. In light of the findings of the July 2002 VA peripheral nerves examination, which found significant pain and moderate weakness due to cervical radiculopathy, considered in light of the severe limitation of motion of the cervical spine for which the Veteran has already been evaluated, the Board finds that the evidence supports a finding that the Veteran's cervical spine disability warrants a 40 percent evaluation for severe intervertebral disc syndrome for the period July 31, 2002, to September 23, 2002. The Board has considered whether a higher evaluation is warranted based upon intervertebral disc syndrome. However, the evidence of record does not support a finding that the Veteran's disability more closely approximates pronounced intervertebral disc syndrome, which would warrant a 60 percent evaluation pursuant to Diagnostic Code 5293. In this regard, there is no evidence of persistent symptoms of neuropathy with demonstrable muscle spasm, upper extremity muscle atrophy, or wrist impairment with little intermittent relief. As such, for the period July 31, 2002, to September 23, 2002, the Board finds that an initial 40 percent evaluation, but not greater, is warranted for the Veteran's cervical spine disability based upon severe intervertebral disc syndrome. However, the preponderance of the evidence weighs against an evaluation in excess of 40 percent during this period of the Veteran's appeal. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). As of September 23, 2002 As of September 23, 2002, the Veteran's cervical spine disorder has been evaluated as 30 percent disabling based upon severe limitation of motion. Further, as discussed above, the Board has awarded an effective date of September 23, 2002, for a separate evaluation of 20 percent based on cervical radiculopathy. In considering whether an increased initial evaluation is warranted as of September 23, 2002, the Board notes that, based on the rating criteria effective on this date, intervertebral disc syndrome is to be evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of chronic orthopedic and neurologic manifestations, whichever method results in the higher evaluation. See 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). The Board again notes that the Veteran has been assigned an initial evaluation of 30 percent orthopedic manifestations of intervertebral disc syndrome, the maximum evaluation based on limitation of motion. Further, the Veteran has been assigned a 20 percent evaluation based on neurological manifestations of cervical radiculitis. Combining the orthopedic and neurological evaluations results in a 40 percent disability evaluation. See 38 C.F.R. § 4.25 (2010). The Board has considered whether an evaluation in excess of 40 percent is warranted at any point as of September 23, 2002, pursuant to other potentially applicable Diagnostic Codes under both the former and current rating criteria. However, the Board finds that it does not. In this regard, the Board observes that there is no competent medical evidence of ankylosis of the cervical spine or of the entire spine. Thus, a higher evaluation is not warranted under the General Rating Formula or under former Diagnostic Code 5287. Furthermore, there is no competent evidence of pronounced intervertebral disc syndrome as of September 23, 2002. In this regard, there is no evidence of persistent symptoms of neuropathy with demonstrable muscle spasm, muscle atrophy, or wrist wrist impairment with little intermittent relief. As such, an evaluation of greater than 40 percent is not warranted based upon the former diagnostic criteria for intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). Furthermore, there is no evidence of incapacitating episodes having a total duration of at least six weeks during a twelve month period. As such, an evaluation greater than 40 percent is not warranted under the current rating criteria for intervertebral disc syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2010). Finally, there is no competent evidence of record to indicate a separate evaluation is warranted for any neurological manifestation of the Veteran's cervical spine disability other than cervical radiculopathy of the left upper extremity for the period as of September 23, 2002. Thus, the Board finds that a separate evaluation for additional neurological disability is not warranted. Therefore, as a preponderance of the evidence is against a higher evaluation, the benefit of the doubt rule does not apply, and the claim for an increased initial evaluation as of September 23, 2002, for post diskectomy degenerative joint disease of the cervical spine must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Final Considerations The Board acknowledges the Veteran's assertion that his service-connected cervical spine disability warranted evaluations greater than those assigned herein. In evaluating whether greater evaluations are warranted at any point during the appeal period, the Board has considered statements submitted by the Veteran as well as those submitted by others on his behalf. The Board notes that the Veteran is competent to report symptomatology observable to a layperson, e.g., pain. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the Veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected cervical spine disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1) and (2) (2010). Residuals of a Fracture of the Left Patella The Veteran's residuals of a fracture of the left patella has been evaluated as 10 percent disabling prior to July 10, 2003, and 20 percent thereafter, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2010), pertaining to instability of the left knee. The Veteran contends that his left knee disability is currently characterized by pain and associated instability. As such, he contends that he is entitled to a higher disability rating throughout the appeal period for his service-connected left knee disability. With respect to instability of the knee, Diagnostic Code 5257 provides for a 10 percent evaluation where there is slight recurrent subluxation or lateral instability. A 20 percent evaluation is assigned where there is moderate recurrent subluxation or lateral instability, and a 30 percent evaluation where there is severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2010). The Veteran's claim for increase for his left knee disability in this case was received on July 21, 1999. As such, the rating period for consideration on appeal stems from July 21, 1998. 38 C.F.R. § 3.400 (o)(2) (2010). Prior to July 10, 2003 As noted above, the Veteran's residuals of a fracture of the left patella is currently evaluated as 10 percent disabling prior to July 10, 2003, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257. Having considered the evidence of record, the Board finds an evaluation in excess of 10 percent based upon instability is not warranted at any point prior to July 10, 2003, as the Veteran's complaints of increased instability of the left knee are not supported by the objective clinical findings. In this regard, a February 1999 SportsMED treatment record indicates that, while the Veteran experienced tenderness of the patellar tendon in the right knee, this was not present on the left. Further, while he was advised to wear a sleeve on the right knee, he was not advised to do so on the left knee. In addition, a December 1999 VA examination report reflects that the Veteran did not use crutches, a brace or cane. The December 1999 VA examination report specifically notes that, while there is guarding of movement and the Veteran walked with a slow, steady gait, there was no instability of the left knee. An August 2001 VA examination report noted the Veteran's complaints of instability and "giving way." However, the examination report reflects that, while instability was present, the Veteran's left knee did not require the use of a cane or brace on the left knee. In addition, no subluxation was present at the August 2001 VA examination. A July 2002 VA examination report indicates both McMurray and Lachman tests were negative. Based on the evidence outlined above, the Board finds that the Veteran's left knee disability does not more closely approximate moderate instability of the left knee at any point during the period prior to July 10, 2003. Since the clinical evidence does not support a finding that instability of the left knee more closely approximates moderate instability, but supports a finding of none or only some instability and no subluxation. Thus, the Board finds that the preponderance of the evidence is against an evaluation in excess of 10 percent under Diagnostic Code 5257 due to recurrent subluxation or lateral instability prior to July 10, 2003. As of July 10, 2003 As of July 10, 2003, the Veteran's service-connected residuals of a fracture of the left patella has been evaluated as 20 percent disabling based upon moderate instability of the left knee. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. Having considered the evidence of record, the Board finds an evaluation in excess of 20 percent based upon instability is not warranted at any during the appeal period as of July 10, 2003, as the Veteran's complaints of severe instability of the left knee are not supported by the objective clinical findings. In this regard, a July 2003 VA examination report reflects the Veteran continued to complain of pain and instability of the left knee, but did not use crutches, cane or corrective shoes. He presented with an elastic brace on the left knee. The VA examination report reflects instability of the left knee, rated as "fair," while the Veteran walked with a "very clumsy" gait. There was no unusual shoe wear pattern. A December 2005 VA examination report reflects the Veteran presented with subjective complaints of instability, reporting he falls on average once a day. He was wearing a brace on the left knee to help increase his stability. However, the VA examiner found the Veteran's left knee to be stable upon clinical examination. In addition, a May 2008 private evaluation found the Veteran's left knee to be ACL/PCL and MCL/LCL stable with a positive McMurray's test. See May 2008 Orthopaedics treatment report. Finally, a February 2009 VA examination report reflects the Veteran reported subjective complaints of constant moderate pain without locking or instability. He reported use of a knee brace with poor response and orthopedic pillows. Examination revealed the left knee to be stable on Lachman's, drawer and varus/valgus stressing with negative McMurray's testing. Based on the evidence outlined above, the Board finds that the Veteran's left knee disability is manifested by no more than moderate instability throughout the period as of July 10, 2003. Since the clinical evidence does not support a finding that instability of the left knee more closely approximates severe instability, the Board finds that the preponderance of the evidence is against an evaluation in excess of 20 percent under Diagnostic Code 5257 due to recurrent subluxation or lateral instability for the period as of July 10, 2003. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an evaluation in excess of 10 percent prior to July 10, 2003, and 20 percent thereafter, based upon instability of the left knee due to residuals of a fracture of the left patella, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). Final Considerations The Board acknowledges the Veteran's assertion that his service-connected left knee disability warrants evaluations greater than those assigned herein. In evaluating whether greater evaluations are warranted at any point during the appeal period, the Board has considered statements submitted by the Veteran as well as those submitted by others on his behalf. The Board notes that the Veteran is competent to report symptomatology observable to a layperson, e.g., pain and his knee "giving out." See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). However, in determining the actual degree of disability, an objective examination is more probative of the degree of the Veteran's impairment. Furthermore, the opinions and observations of the veteran alone cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.71a with respect to determining the severity of his service-connected left knee disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992); 38 C.F.R. § 3.159(a)(1) and (2) (2010). The Board has considered the applicability of additional diagnostic codes potentially applicable to the Veteran's service-connected left knee disability. However, no higher or separate evaluations are warranted under any of these diagnostic codes at any point during the appeal period. In this regard, the Board observes that Diagnostic Codes 5258 and 5259 do not apply to the Veteran's current disability because there is no evidence of semilunar dislocated cartilage or removal of the semilunar cartilage. In addition, as the evidence of record fails to demonstrate ankylosis or impairment of the tibia or fibula, the Veteran is not entitled to a separate or higher rating under Diagnostic Codes 5256 or 5262 for the left knee. Extra-Schedular Evaluation The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that 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 would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2010). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. While the Veteran's disabilities on appeal create some functional limitations with respect to his employment and activities of daily life, a comparison between the level of severity and symptomatology of the Veteran's disabilities on appeal with the established criteria found in the rating schedule for these disabilities show that the rating criteria reasonably describes the Veteran's disability level and symptomatology. As the first prong of Thun has not been satisfied, the Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an effective date of September 23, 2002, but no earlier, for the award of a separate evaluation for radiculopathy of the left upper extremity is granted. An initial 20 percent evaluation, but not greater, is granted prior to February 15, 2001, for post diskectomy degenerative joint disease of the cervical spine, subject to the laws and regulations governing the payment of monetary benefits. An initial evaluation in excess of 30 percent for the period February 15, 2001, to July 31, 2002, for post diskectomy degenerative joint disease of the cervical spine is denied. An initial evaluation of 40 percent, but not greater, is granted for the period July 31, 2002, to September 23, 2002, for post diskectomy degenerative joint disease of the cervical spine, subject to the laws and regulations governing the payment of monetary benefits. An initial evaluation in excess of 30 percent as of September 23, 2002, for post diskectomy degenerative joint disease of the cervical spine based upon limitation of motion is denied. An evaluation in excess of 10 percent prior to July 10, 2003, and 20 percent thereafter, for residuals of a left patella fracture based upon instability is denied. REMAND Following a September 2003 Board remand, the Veteran was awarded a separate 10 percent evaluation based on limitation of motion of the left knee, effective July 10, 2003. See February 2010 rating decision. Similarly, during the pendency of the Veteran's appeal, he was awarded a separate 20 percent evaluation for radiculopathy of the left upper extremity. See October 2005 rating decision. The Board observes that, while the Veteran has not specifically appealed the evaluations assigned, they remain part and parcel of the underlying claims for increased evaluations for disabilities of the left knee and cervical spine. As such, these issues are currently on appeal. However, upon review of the claims file, the Board observes the Veteran has not been provided a supplemental statement of the case with respect to increased initial evaluations for residuals of a left patella fracture based on limitation of motion or radiculopathy of the left upper extremity. Therefore, in order to comply with applicable due process procedures, a remand is necessary to provide the Veteran with a supplemental statement of the case, including applicable regulations and diagnostic criteria, addressing these issues. See generally 38 C.F.R. § 19.31 (2010). Accordingly, the case is REMANDED for the following action: Review the record and readjudicate the issues of entitlement to increased initial evaluations for residuals of a left patella fracture based on limitation of motion and radiculopathy of the left upper extremity. Unless the benefits sought on appeal are granted in full, the Veteran and his representative, if any, should be furnished an appropriate supplemental statement of the case, to include applicable regulations and diagnostic criteria, and be afforded an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010). ______________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs