Citation Nr: 1303172 Decision Date: 01/30/13 Archive Date: 02/05/13 DOCKET NO. 10-11 211 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUES 1. Entitlement to service connection for vertigo, to include as secondary to service-connected tinnitus. 2. Entitlement to service connection for a skin disorder, to include as secondary to agent orange exposure. REPRESENTATION Veteran represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD L. Durham, Counsel INTRODUCTION The Veteran had active military service in the United States Marine Corps (USMC) from June 1967 to April 1970. During this period of active military service, he served in the Republic of Vietnam (RVN) from December 1967 to March 1968. He also served in the United States Army from January to September 2003. The Veteran was awarded, in part, the Combat Action Ribbon and Purple Heart Medal. In-between his two periods of active military service, the Veteran served in the United States Army Reserve. These matters comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of VA RO in Houston, Texas. By that rating action, the RO, in part, confirmed and continued its previous denials for service connection for vertigo and skin disabilities. The Veteran appealed the RO's April 2007 rating action to the Board. In March 2011, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at the RO in Houston, Texas. A copy of the hearing transcript has been associated with the claims file. The Board notes that, in Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the VLJ/Decision Review Officer (DRO) who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ fully explained the issues on appeal during the hearing. Additionally, it is clear from the Veteran's testimony that he had actual knowledge of the elements that were lacking to substantiate his claims. Significantly, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has either identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). These issues were remanded by the Board for further development in June 2011. The Board notes that the issue of entitlement to service connection for a bilateral knee disorder was remanded in June 2011 as well. However, during the course of this appeal, this claim was granted in an October 2012 rating decision. This decision was a complete grant of benefits with respect to this issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, this issue is not currently on appeal before the Board. Additionally, the Board notes that the Veteran's representative did not submit argument in the form of a Statement of Accredited Representative in Appealed Case after the June 2011 remand was issued. However, in a December 17, 2012, letter, the representative was advised that he had 8 days from the date of this letter to submit such a form. As more than 8 days have since passed, the Board will proceed to the merits of the claims. Further, the Board notes that the Veteran submitted a statement dated in June 2012, in which he indicated that his posttraumatic stress disorder (PTSD) is getting worse as he gets older. As such, the Board finds that the issue of entitlement to an increased evaluation for service-connected PTSD been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of entitlement to service connection for a skin disorder, to include as secondary to agent orange exposure is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Vertigo is not etiologically related to a disease, injury, or event in service, or to a service-connected disability. CONCLUSION OF LAW Vertigo was not incurred in or aggravated by active military service, and is not proximately due to or the result of any service-connected disability. See 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, and 3.310 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) 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 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the 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; and (3) that the claimant is expected to provide. VCAA letters dated in October 2006 and July 2009 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim. These letters informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, these letters notified the Veteran as to how appropriate disability ratings and effective dates are assigned. The Board notes that these letters did not address the requirements for substantiating service connection on a secondary basis. However, the Veteran was clearly notified of this criteria in the June 2011 Board remand. Consequently, the Board finds no useful purpose would be served in remanding this matter for yet more development. Such a remand would result in unnecessarily imposing additional burdens on VA, with no additional benefit flowing to the Veteran. The Court has held that such remands are to be avoided. See Winters v. West, 12 Vet. App. 203 (1999) (en banc), vacated on other grounds sub nom. Winters v. Gober, 219 F.3d 1375 (Fed. Cir. 2000); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). See also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc). The Board also concludes VA's duty to assist has been satisfied. The Veteran's available service treatment records and relevant VA and private medical records are in the file. The Board finds that all available records identified by the Veteran as relating to this claim have been obtained, to the extent possible. The record contains sufficient evidence to make a decision on the claim. VA has fulfilled its duty to assist. With regard to claims for service connection, the duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2012). The Veteran was provided VA examinations for his vertigo claim in June 2011 and December 2012. The examiners reviewed the claims files, conducted the appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds these examination reports and accompanying opinions to be thorough, complete, and sufficient upon which to base a decision with regard to this claim. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Analysis The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service connection may be established for disability resulting from personal injury suffered or disease contracted in line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b) (2012). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d) (2012). To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Board notes that the term "active military, naval, or air service" includes active duty, any period of active duty for training (ACDUTRA) during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty for training (INACDUTRA) during which the individual concerned was disabled or died (i) from an injury incurred or aggravated in line of duty; or (ii) from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident occurring during such training. 38 U.S.C.A. § 101(24) (West 2002 & Supp. 2009); 38 C.F.R. § 3.6(a) (2012). The term "active duty for training" is, inter alia, full- time duty in the Armed Forces performed by Reserves for training purposes or by members of the National Guard of any State. 38 U.S.C.A. § 101(22) (West 2002 & Supp. 2009); 38 C.F.R. § 3.6(c) (2012). The term "inactive duty for training" means, inter alia, duty other than full-time duty prescribed for Reserves or the National Guard of any State. 38 U.S.C.A. § 101(23) (West 2002 & Supp. 2009); 38 C.F.R. § 3.6(d) (2012). It follows from this that service connection may be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or from injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101, 106, 1110, 1131 (West 2002 & Supp. 2009). For any disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. However, VA will not concede that a nonservice-connected disease or injury was aggravated by a service-connected disease or injury unless the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice- connected disease or injury. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). The Veteran contends that his vertigo had its onset during his initial period of active military service, or in the alternative, that it is secondary to his service-connected tinnitus. A review of the service treatment records reveals no complaints, treatment, or diagnoses of vertigo or symptoms related to vertigo. The Veteran was noted in a September 1975 VA otolaryngology examination as not having vertigo. The Veteran complained in an October 1978 VA treatment record of dizziness and tinnitus going back 10 years to when he sustained an injury while in service. The Veteran was noted in a July 1979 VA neurological examination as having episodic dizziness associated with tinnitus. It was noted that the etiology is not clear at this time, as one would not suspect that this vestibular portion of the 8th nerve would be involved in the damage, secondary to noise. However, by history, the Veteran stated that the dizziness was clearly related to an increase in the loudness and intensity of the tinnitus. At this examination, the Veteran reported that, while in service, he was exposed to loud noises on a chronic basis while in Vietnam, and that he had a gradual onset of bilateral ringing in the ears and an episode of dizziness about twice a month that had been occurring since the noise exposure. More recently, the Veteran underwent a VA examination in June 2011. The Veteran reported an onset of vertigo in 1970. The Veteran denied actual vertiginous type symptoms of spinning. The Veteran reported that, when it first occurred, his head felt like it was going to explode when his tinnitus would increase in intensity. He reported that he now experiences occasional imbalance/lightheadedness with increased tinnitus, which occurs every couple of weeks and last 5 to 6 seconds. The examiner stated that, in addition to his personal knowledge from working in Otolaryngology/ENT, he has conducted an extensive review of the medical literature on the topic of the possible complications of tinnitus. The examiner found no competent, evidence-based medical documentation indicating that tinnitus could either cause or aggravate vertigo, or symptoms of light headedness or imbalance. Therefore, it is less likely as not that the Veteran's tinnitus either caused or aggravated his reported episodic "vertigo", or symptoms of lightheadedness or imbalance. Additionally, the examiner noted that the Veteran claims that this started while he was in the service and that he had discussed it with a military doctor prior to his discharge in 1970. The examiner indicated that he carefully reviewed the Veteran's service treatment records, and it is negative for any treatment or complaints regarding vertigo. There are numerous Report of Medical History forms, typically completed for routine/annual physical evaluations. On these forms, the Veteran consistently answered "NO" to the questions asking if the Veteran has or has ever had "dizziness or fainting spells." There is a copy of an employment history/physical from 1970 for the Gulf Corporation in the claims file. On the history portion of that form, the Veteran answered "NO" to a question regarding a history of dizziness. Letters to/from the VA regarding the Veteran's claim for hearing loss and tinnitus dated in 1975 do not make any remarks regarding dizziness, lightheadedness, or imbalance problems. The examiner noted that the earliest available documentation of these symptoms is when the Veteran complained of vertigo/dizziness during a neurology examination by the VA in 1979. Per this careful review, the Veteran is unable to make any connection between the Veteran's complaint of vertigo/lightheadedness/imbalance and his initial period of service (1967 to 1970) in which the Veteran claims these symptoms first occurred. In December 2012, another VA medical opinion was provided. The examiner reviewed the claims file and concluded that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner opined that vertigo is not caused by nor a result of military service for the time period of active duty from 1967 to 2003 (taking into consideration Reserve status from 1980 to January 2003). The rationale provided was that the documentation that follows shows a consistency that cannot be refuted, namely that the Veteran always marked NO when asked if he had complaints referable to dizziness (a hallmark of vertigo) from 1980 to 2007. The examiner noted that lack of medical treatment records further refute the Veteran's claims that he even had vertigo. He started coming to the VA Medical Center (VAMC) on November 13, 2003, and through successive clinic visits ending in April 2006, the Veteran never mentioned dizziness nor vertigo complaints again. The examiner noted that the reality is that the Veteran must prove something (vertigo) in order for it to exist. Not only has he not done that, he has not bothered to answer in the affirmative when asked he has the complaint and has not bothered to do anything about it, if he ever had vertigo to begin with. The examiner then cited to various pertinent medical records, to include the July 1979 neurological examination and several service treatment records over the years where the Veteran denied dizziness. With regard to granting service connection on a direct basis, regulations provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. 3.303(d) (2012). Currently, there is no medical evidence of record relating a current diagnosis of vertigo to any period of his military service. Specifically, the December 2012 VA medical opinion stated that the Veteran's vertigo is not caused by nor a result of military service for the time period of active duty from 1967 to 2003 (taking into consideration Reserve status from 1980 to January 2003). The Board finds there is no medical evidence to the contrary. Therefore, the Veteran's claim for service connection for vertigo must fail on a direct basis. See Shedden, supra. With regard to granting service connection on a secondary basis, the claims file contains no medical evidence linking the Veteran's vertigo to his service-connected tinnitus. Specifically, the June 2011 VA examiner indicated that it is less likely as not that the Veteran's tinnitus either caused or aggravated his reported episodic "vertigo", or symptoms of lightheadedness or imbalance. The claims file contains no medical evidence to the contrary. As such, service connection cannot be granted on a secondary basis for vertigo either. Additionally, the Board notes that the Veteran indicated at the March 2011 hearing that he missed a few scheduled VA examinations because he was in Saudi Arabia. As such, the Board has considered whether this claim should be contemplated as a claim for a manifestation of an undiagnosed illness resulting from service in the Persian Gulf region during the Persian Gulf War under 38 C.F.R. § 3.317. However, the Board notes that, while the claims file reflects that the Veteran served in Afghanistan and Uzbekistan in recent years, these records do not reflect that he served in Saudi Arabia. Moreover, the Veteran did not specifically assert at the March 2011 hearing that he went to Saudi Arabia as part of his active duty service. Further, the Veteran has consistently reported that he has suffered from vertigo related to tinnitus dating back at least the 1970's or to his first period of active duty. Therefore, as these symptoms were alleged to have manifested several decades before the Persian Gulf War, the Board finds that service connection cannot be granted on a presumptive basis under 38 C.F.R. § 3.317. The Board acknowledges the Veteran's contention that he developed vertigo as a result of his active duty service or his service-connected tinnitus. The Veteran can attest to factual matters of which he had first-hand knowledge. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Board finds that a lay person is not competent to offer an opinion on a matter clearly requiring medical expertise, such as providing an etiology for claimed vertigo. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, in this case, the Board finds the Veteran's lay assertions not to be probative. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule does not apply, and the claim for service connection for vertigo must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to service connection for vertigo, to include as secondary to service-connected tinnitus is denied. REMAND The Veteran contends that he has a skin disorder as the result of having been exposed to agent orange during active military service in the RVN. After a thorough review of the claims file, the Board finds additional development is needed prior to the adjudication of this claim The evidence of record reflects that the Veteran served in the RVN from December 1967 to March 1968. As such, in-service exposure to herbicides or agent orange is conceded. A review of the service treatment records from June 1967 to April 1970 reveals no complaints, treatment, or diagnoses of a skin condition. Post-service medical evidence reflects that the Veteran has been diagnosed with a current skin disability--an evanescent rash. (See September 2006 report, prepared by S. M., M. D.). That same report contains Dr. S. M.'s assessment that the Veteran's evanescent rash was not typical of an agent orange skin rash which he would have expected to have been in acneform and "loc.on post neck." (See September 2006 report, prepared by S. M., M. D.) However, in formulating his assessment, Dr. S. M. did not review the Veteran's complete medical history, to specifically include a February 2003 service treatment record, reflecting that he had complained of a skin condition due to agent orange. At that time, the examining physician's assistant reported that he might have had contact dermatitis on his forearm. Therefore, the Board remanded this issue in June 2011 in order to afford the Veteran a VA skin examination to determine whether any current skin disability is related to, or had its onset during, his initial period of active military service, to include his presumed exposure to agent orange in the RVN. The Veteran underwent a VA examination in July 2011. The examiner reviewed the claims file. The Veteran reported that his rash began a couple of years after he was out of the service. He indicated that it was most severe when it first started. The rash last appeared a few months ago. It usually lasts for 7-10 days and occurs on lateral fingers, upper back, thighs, and lower legs. The examiner noted that the history sounds most consistent with eczema. The recurrent blisters on the lateral fingers is classis for dyshidrotic eczema. Patients with dyshidrotic eczema can also have eczema without blisters on other areas of the body. The differential diagnosis does also include contact dermatitis. Based on the history and timing of the recurrent rash, it is less likely as not (less than 50/50 probability) caused by or a result of his military service. The examiner noted that eczema is a common dermatologic problems. In the June 2011 remand, the Board specifically directed that the examiner provide an opinion as to whether the Veteran's skin disability had its onset during, or is it etiologically related to, his initial period of active military service, to include his presumed exposure to agent orange during his service in the RVN. The remand further directed that, in formulating the foregoing opinion, the examiner must comment on the Veteran's service treatment records from both periods of his active military service and post-service medical records, to specifically include the following: (i) a February 2003 service treatment, reflecting that the Veteran had complained of a skin condition due to agent orange. The examining physician's assistant reported that he might have had contact dermatitis on his forearm; and (ii) a September 2006 report, prepared by S. M., M. D., who concluded that the Veteran's evanescent rash, which was not present on physical evaluation, was not typical of an agent orange skin rash, which would have been expected to be "acneform and located on post neck." The Board is obligated by law to ensure that the RO complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Stegall v. West, 11 Vet. App. 268 (1998). Therefore, in light of the fact that it was expressly requested that the examiner considered the Veteran's agent orange exposure in rendering any opinions, and the July 2011 VA examiner did not provide any commentary on this exposure, the Board finds that VA has not substantially complied with the remand directives. Consequently, a new remand is required to comply with the holding of Stegall. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to be conducted by a qualified examiner to determine the etiology of any currently present skin disability. a. The claims file must be made available to and thoroughly reviewed by the examiner in connection with the examination, and the examiner must acknowledge such receipt and review in any report generated as a result of the examination. b. The examiner must review the Veteran's statements and testimony, as well as service treatment records in conjunction with the examination. Any special diagnostic studies deemed necessary should be performed. c. After reviewing the records, examining the Veteran, and identifying all appropriate symptoms and diagnoses, the examiner must provide medical findings or opinions responsive to the following question: Did the Veteran's skin disability have its onset during, or is it etiologically related to, his active military service, to include his presumed exposure to agent orange during his service in the RVN from December 1967 to March 1968? In formulating the foregoing opinion, the examiner must comment on the Veteran's service treatment records from both periods of his active military service and post-service medical records, to specifically include the following: (i) a February 2003 service treatment record, reflecting that the Veteran had complained of a skin condition due to agent orange. The examining physician's assistant reported that he might have had contact dermatitis on his forearm; and, (ii) a September 2006 report, prepared by S. M., M. D., who concluded that the Veteran's evanescent rash, which was not present on physical evaluation, was not typical of an agent orange skin rash, which would have been expected to be "acneform and located on post neck." All opinions expressed must be accompanied by supporting rationale, with reference to the documented clinical history. 2. Then, readjudicate the claim. In the event that the claim is not resolved to the satisfaction of the Veteran, he should be provided a supplemental statement of the case (SSOC), which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. After the Veteran has been given the applicable time to submit additional argument, the claim should be returned to the Board for further review. The Veteran 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). No further action is required of the Veteran until further notice. However, the Board takes this opportunity to advise the Veteran that the conduct of the efforts as directed in this remand, as well as any other development deemed necessary, is needed for comprehensive and correct adjudication of his claim. His cooperation in VA's efforts to develop his claim, including reporting for any scheduled VA examination, is both critical and appreciated. The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. See 38 C.F.R. § 3.655 (2012). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2011). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs