Citation Nr: 1305340 Decision Date: 02/13/13 Archive Date: 02/21/13 DOCKET NO. 06-33 980 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for asthma, with allergic rhinitis and sinusitis. 2. Entitlement to an initial, compensable evaluation for right eye chorioretinal scar, residual of toxoplamosis. REPRESENTATION Appellant represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD L. M. Barnard, Senior Counsel INTRODUCTION The Veteran served on active duty from October 1997 to August 2005. This appeal arose before the Board of Veterans' Appeals (Board) from a January 2006 rating decision of the Waco, Texas, Department of Veterans Affairs (VA), Regional Office (RO), which had granted service connection for asthma (assigned a 10 percent evaluation), service connection for allergic rhinitis and sinusitis (assigned a noncompensable evaluation), and service connection for chorioretinal scar of the right eye (assigned a noncompensable evaluation). This case was subsequently transferred to the jurisdiction of the RO and Insurance Center in Philadelphia, Pennsylvania. In an August 2006 rating action, the Waco RO had combined the separately rated disabilities of asthma and allergic rhinitis and sinusitis. The combined disability was assigned a 10 percent evaluation and was re-characterized as asthma, with allergic rhinitis and sinusitis. In May 2012, the Board remanded the Veteran's case so that certain evidentiary development could be undertaken. Subsequent to efforts to comply with the remand instructions, the case was returned to the Board for further appellate consideration. The Veteran had requested to appear before the Board via a Video Conference hearing that was scheduled in June 2010. The Veteran failed to report to the hearing and has not provided a good cause justification for this failure, nor has she requested that the hearing be rescheduled. Therefore, the hearing request is deemed to have been withdrawn. See 38 C.F.R. § 20.704(e) (2012). FINDINGS OF FACT 1. During the pendency of this appeal, the Veteran's service-connected asthma, with rhinitis and sinusitis, has been manifested by complaints of frequent productive cough, with flare-ups occurring about one to two times per year, with clear lungs and pulmonary function tests showing FEV1/FVC 83 percent of predicted. 2. During the pendency of this appeal, the Veteran's service-connected right eye toxoplasmosis residuals have been manifested by retinal scarring, without atrophy or irregularity of the retina resulting in irregular, duplicated, enlarged, or diminished image. CONCLUSIONS OF LAW 1. During the pendency of this appeal, the criteria for an initial evaluation in excess of 10 percent for the service-connected asthma, with rhinitis and sinusitis, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.2, 4.3, 4.7, Diagnostic Codes (DCs) 6514, 6522, 6602 (2012). 2. During the pendency of this appeal, the criteria for an initial compensable evaluation for the service-connected toxoplamosis residuals, with chorioretinal scarring, have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.2, 4.3, 4.7, 4.31, DCs 6011 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all the evidence submitted by or on behalf of the Veteran. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Veterans Claims Assistance Act (VCAA) With respect to the Veteran's claim, VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran 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); 38 C.F.R. § 3.159(b); 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 Veteran 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 Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. Various VCAA letters dated in October 2005, March 2006, May 2008, and August 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2011); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised that it was ultimately her responsibility to give VA any evidence pertaining to the claim. The letters informed her that additional information or evidence was needed to support her claim, and asked her to send the information or evidence to VA. See Pelegrini II, at 120-121. The March 2006 letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). 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." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has submitted argument in support of her claims that has referenced the applicable law and regulations necessary for a grant of increased ratings. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for her to prevail on her claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records and VA treatment records are in the file. The Veteran has at no time referenced outstanding records that she wanted VA to obtain or that she felt were relevant to the claim. The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the appellant. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). The RO provided the Veteran VA examinations in November 2005, January 2009 and November 2010. For a variety of reasons, these examinations were found to be inadequate for rating purposes; based on this determination, the case was remanded to the RO so that another VA examination could be conducted. However, the Veteran failed to report to the examinations scheduled in June 2012. The Board finds that the RO made all reasonable efforts to schedule these examinations, to include contacting the Veteran and providing her with an opportunity to reschedule the missed examinations. She failed to respond to this correspondence as well. The Board notes, parenthetically, that these notices were all sent to the Veteran's last known address of record and were not returned as undeliverable. Therefore, the Board finds that there has been substantial compliance with its May 2012 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 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). Laws and Regulations: Increased Initial Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. Where the issue involves the assignment of an initial rating for a disability following the initial award of service connection for that disability, as is the case here, the entire history of the disability must be considered and, if appropriate, staged ratings may be applied. Fenderson v. West, 12 Vet. App. 119 (1999). If there is a question as to which evaluation to apply to the Veteran's disability, 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 (2012). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It would also include statements contained in authoritative writings such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1) (2012). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2) (2012). It should be noted that during the pendency of this appeal, the criteria for rating eye disabilities were amended effective December 10, 2008. The December 2008 amendments included a rearrangement of some substantive criteria for rating eye disabilities, which ultimately eliminated 38 C.F.R. § 4.84a (2008). The current version of the schedule for rating the eye is located in 38 C.F.R. § 4.79 (2012). However, these amended criteria govern cases only when the claim is filed on or after December 10, 2008. 73 Fed. Reg. 66543 (November 10, 2008). Here, because the Veteran filed her claim prior to December 10, 2008, the appeal will be considered under the prior criteria. Id. The Board further notes that when a Veteran fails to report for a VA examination scheduled in connection with an initial rating claim following the grant of service connection, which is classified as an original compensation claim under 38 C.F.R. § 3.655 (b) (2012), the case shall be rated on the evidence of record. See Fenderson, supra.; Turk v. Peake, 21 Vet. App. 565, 568-70 (2008). As that is the case here, the initial rating claims will be addressed based on the evidence of record. Factual Background and analysis Asthma, with allergic rhinitis and sinusitis The pertinent evidence of record includes the report of a VA examination performed in November 2005. The Veteran indicated that her rhinitis/sinusitis had had its onset in about 1998, while her asthma had first manifested in 1999. She reported one episode of sinusitis over the previous year that had not been incapacitating. She also had nasal congestion with post-nasal drip that was seasonal in nature. She reported experiencing shortness of breath and wheezing on running. Her asthma was aggravated by cold weather and dust. She noted that this condition had had a good response to an Albuterol inhaler. The objective examination found that the Veteran had pain over the left maxillary sinus. Her pulmonary symptoms included a cough, wheezing, chest pain, and sputum. The pulmonary examination was essentially normal, with a negative chest X-ray and pulmonary function tests (PFTs) that demonstrated minimal obstructive airway disease. The PFT showed post-bronchodilator results indicating FEV1 of 98 percent and FEV1/FVC of 85 percent. An X-ray of her sinuses noted a 1 by 2 centimeter polyp on the floor of the left antrum. The diagnoses were left maxillary sinusitis; seasonal rhinitis; and asthma. VA treatment records developed between 2006 and 2007 noted the Veteran's left maxillary antrum polyp, as well as a retention cyst. She regularly used an Albuterol inhaler for the treatment of her asthma. On January 9, 2007, she reported asthma attacks occurring two to three times per week, with daily inhaler use. The Veteran was afforded another VA examination in January 2009. She reported using her Albuterol inhaler once a day. She described significant allergies to dust, pollen, and animal dander. She denied having a productive cough. The examiner noted that she was able to walk into the examination room, a distance of about 100 feet, without shortness of breath. Her lungs were clear, even with forced expiration. Her asthma appeared to be controlled with inhaled steroids. In regard to the sinusitis, the Veteran complained of nasal congestion, itchy and watery eyes, sneezing, and post-nasal drip. The objective examination was positive for allergic rhinitis, although there were no nasal polyps. The nasal passage had 70 to 80 percent bilateral obstruction. She had minimal deviation of the septum, as well as purulent discharge and crusting in the nasal cavity. VA outpatient treatment records from January and February 2009 reflect that the Veteran was treated for complaints of nasal congestion, cough, and a thick green sputum, that on January 29 had been present for approximately one week. The turbinates were noted to be boggy and with a mucous discharge. She had no shortness of breath or dyspnea on exertion. An upper respiratory infection was diagnosed. On February 6, she reported that she was doing better since her last visit, although there was still some congestion with sputum. VA re-examined the Veteran in November 2010. She stated that she had been diagnosed with asthma in either 1999 or 2000. She indicated that she had a frequent cough with yellowish mucous. She denied shortness of breath on exertion except with intermittent aggravation of her asthma. She had never required oxygen and had had no incapacitating episodes. She denied a history of cor pulmonale or pulmonary hypertension. The physical examination noted that she was in no acute distress. Her lungs were clear without rales or wheezes. There was no clubbing of the fingers. A PFT showed FEV1/FVC of 83 percent of predicted values. There was no significant bronchodilator response. The spirometry was normal. She also had normal lung volumes and diffusion. The diagnosis was mild intermittent exercise-induced asthma. The Veteran's Virtual VA records include a VA treatment note from October 3, 2011 that noted her history of mild intermittent asthma. She displayed no respiratory symptoms. She was able to exercise daily, running five miles without difficulty. She had allergies, but these were well-controlled with Loratadine. She indicated that she was still planning to re-enlist in the Reserves. Her lungs were clear to auscultation, and she had no shortness of breath or dyspnea on exertion. The applicable rating criteria for asthma, note that a 10 percent disability evaluation is warranted when PFTs demonstrate FEV-1 of 71 to 80 percent of that predicted, or FEV-1/FVC of 71 to 80 percent of that predicted; or intermittent inhalational or oral bronchodilator therapy. A 30 percent evaluation requires FEV-1 of 56 to 70 percent of that predicted or FEV-1/FC of 56 to 70 percent of that predicted; or inhalational anti-inflammatory medication. 38 C.F.R. § 4.96, DC 6602 (2012). The Board does note that the Veteran had failed, without good cause, to report for a VA examination scheduled in June 2012. This examination was deemed necessary in order to obtain a clear picture of her current respiratory disorder, as well as to determine whether she had any symptoms or disorders that could be compensated separately from the service-connected asthma. However, because she failed to report to this examination, the Board must evaluate the claim based on the evidence currently of record. See 38 C.F.R. § 3.655 (2012). After a careful review of the evidence of record, it is found that a disability evaluation in excess of 10 percent is not warranted at any time during the appellate period. While the Veteran does use an inhaler to control her asthma, PFTs conducted in November 2005 and November 2010 showed FEV-1 and FEV-1/FVC in excess of 80 percent of predicted. Clearly, FEV-1 of 56 to 70 percent of that predicted or FEV-1/FC of 56 to 70 percent of that predicted have not been demonstrated at any time during the appellate period. Moreover, her asthma has not caused shortness of breath or dyspnea on exertion; in fact, she had reported that she was able to exercise daily, running five miles without difficulty. Therefore, it cannot be found that her asthma is more than minimally disabling, thereby warranting no more than the 10 percent evaluation currently assigned. The Board has considered whether the Veteran's respiratory condition could be assigned a greater disability evaluation under any other potentially applicable diagnostic codes. Diagnostic Code 6514, chronic sinusitis, requires three or more incapacitating episodes of sinusitis per year requiring prolonged (lasting four to six weeks) antibiotic treatment, or more than six nonincapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting in order to warrant a 30 percent disability evaluation. While sinusitis has been noted in the past, there is no indication that she has experienced any incapacitating episodes, let alone three or more per year, which have required antibiotic treatment. There is also no indication in the available treatment records that she has had more than six non-incapaciting episodes per year of sinusitis. While in the past there have been infrequent reports of some pain, headaches, and discharge or crusting (see the November 2005 VA examination report), there is no indication that these episodes occurred more than six times per year. During the November 2005 VA examination, she indicated that she had had only one episode of sinusitis over the previous 12 month period. Therefore, there is no competent evidence of record that suggests that a 30 percent disability evaluation is warranted for her respiratory disorder under DC 6514. The Board has also considered the applicability of DC 6522, the rating criteria for allergic or vasomotor rhinitis. A 30 percent evaluation under this code requires the presence of polyps. While an X-ray conducted at the time of the November 2005 VA examination noted the presence of a left maxillary antrum polyp, this was not confirmed at the time of the January 2009 VA examination, which specifically found that no polyps were present. VA outpatient treatment records referenced the presence of a polyp; however, such was not noted after 2006. The Board had requested another VA examination in order to ascertain whether or not polyps were present but, as noted above, the Veteran failed to report to the scheduled examination. Therefore, the Board must rely on the evidence of record and the preponderance of that evidence does not show the presence of nasal polyps; as a consequence, a 30 percent disability evaluation is not warranted under DC 6522. Right eye chorioretinal scar, residual of toxoplamosis The relevant evidence of record included a VA examination performed in November 2005. Right eye chorioretinal scars had been noted during a May 2003 dilated eye examination. Since that time, the Veteran's condition had been stable. She had 20/20 bilateral visual acuity, and there were no noted visual field defects. There was no nystagmus. A fundoscopic examination noted two chorioretinal scars in the right eye; a slit lamp examination was normal. A general medical examination conducted at this time also noted that her visual fields were grossly normal, and that her pupils were equal and reactive to light. The Veteran was re-examined by VA in November 2010. The diagnosis of right chorioretinal scars following toxoplasmosis was noted. The macula was clear and she was noted to have myopia with astigmatism. She was supposed to return to Optometry for the performance of a Goldman Visual Field test; however, this test was never accomplished. The Veteran's Virtual VA records were reviewed. These noted that in February 2011 she was fitted for new glasses. While the chorioretinal scars were noted, she had no visual complaints. The applicable rating criteria note that retinal scars, whether unilateral or bilateral, may be assigned a single 10 percent evaluation for localized scars, atrophy, or irregularities of, centrally located , with irregular, duplicated enlarged or diminished image. See DC 6011 (2008). As noted above, these DCs were revised in 2008; however, the revised rating criteria only apply to those claims filed on or after December 10, 2008. Because the Veteran's claim was filed prior to this date, the older version of the applicable rating criteria applies. The evidence of record simply does not support the assignment of a 10 percent disability evaluation. While there is no doubt that the Veteran has residual chorioretinal scars due to toxoplasmosis, there is no indication that these have affected her vision, or have caused irregular, duplicated enlarged or diminished image. In fact, the VA examination conducted in November 2005, noted that her visual field was grossly normal. Other than the scarring, there were no other residuals related to her history of toxoplasmosis. The eye examination, save for the scars, was essentially within normal limits. A November 2010 examination again noted the scarring. The macula was clear. The only visual findings were of myopia with astigmatism. The examiner had wanted the Veteran to return for a Goldman's visual field test; however, she failed to report for this test. Another VA examination was then requested in order to determine whether there was any visual field defects related to the scarring, but the Veteran failed to report to that examination. Therefore, any useful information that could have resulted from this examination cannot be included and the Board must rate her chorioretinal scarring on the evidence currently of record. That evidence, as noted above, does not support a finding that a 10 percent disability evaluation is justified at any time during the pendency of this appeal. While the Board acknowledges the Veteran's complaints concerning her respiratory and eye disabilities, the evidence simply does not demonstrate the degree of disability required for increased compensation for either condition. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extrascheduar considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular 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) (2012). 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 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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 evaluations for the service-connected asthma with rhinitis/sinusitis and chorioretinal scarring are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. The Veteran has not alleged, and the evidence of record does not suggest, that the Veteran's disabilities have resulted in unemployability. Therefore, the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), which states that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total disability rating based on individual unemployabiliy as a result of that is disability is warranted, is not for application. ORDER Entitlement to an initial disability rating in excess of 10 percent for asthma, with allergic rhinitis and sinusitis is denied. Entitlement to an initial, compensable evaluation for right eye chorioretinal scar, residual of toxoplamosis is denied. ____________________________________________ G. A. Wasik Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs