Citation Nr: 1309599 Decision Date: 03/21/13 Archive Date: 04/01/13 DOCKET NO. 07-13 328 ) DATE ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating higher than 10 percent for hallux valgus with bunionectomy and osteotomy of the left foot. 2. Entitlement to an initial rating higher than 10 percent for hallux valgus with bunionectomy and osteotomy of the right foot. 3. Entitlement to an initial rating higher than 20 percent for hammer toe deformity of the left second, third, fourth, and fifth toes. 4. Entitlement to an initial compensable rating for hammer toe deformity of the right second, third, fourth, and fifth toes, before February 1, 2008. 5. Entitlement to an initial rating higher than 20 percent for hammer toe deformity of the right second, third, fourth, and fifth toes, from February 1, 2008. 6. Entitlement to an initial rating higher than 70 percent for posttraumatic stress disorder. REPRESENTATION Vetera represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD M. Taylor, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from January 1981 to December 1984, from December 1995 to September 1996, and from December 2003 to March 2005. This matter is before the Board of Veterans' Appeals (Board) on appeal of rating decisions in April 2006, in March 2007, and in January 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). In a statement in September 2008, the Veteran raised the claims of service connection for knee and leg disabilities secondary to the service-connected foot disabilities, which are referred to the RO for appropriate development. In May 2009, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is in the record. In August 2010, the Board vacated, in part, its decision of August 2009, denying an initial rating higher than 50 percent for posttraumatic stress disorder, and remanded the claim for additional development. While on appeal in a rating decision in April 2012 the RO increased the rating to 70 percent and in rating decision in June 2012 the RO assigned an effective date of March 18, 2005, covering the entire period of the appeal. In the rating decision in June 2012, while on appeal, the RO increased the rating for hammer toes of the left foot to 20 percent, effective February 1, 2007, following the termination of a temporary total rating for convalescence after left foot surgery in December 2006. The temporary total rating for convalescence from the date of claim in December 2006 and the current 20 percent rating, effective February 1, 2007, cover the entire period of the appeal, which does not constitute a staged rating during the period of the appeal, which is reflected in Issue 3 on the first page of this decision. In the rating decision in June 2012, while on appeal, the RO increased the rating for hammer toes of the right foot to 20 percent, effective February 1, 2008, following the termination of a temporary total rating for convalescence after right foot surgery in November 2007. Before the right foot surgery, the hammer toe deformity of the right foot was rated noncompensable from the date of claim in December 2006 until November 2007, constituting a staged rating during the period of the appeal, which is reflected in Issues 4 and 5 on the first page of this decision. FINDINGS OF FACT 1. Before foot surgery in November 2009 and from February 2010, after the termination of a temporary total rating for convalescence, the 10 percent rating for left hallux valgus with bunionectomy and osteotomy is the maximum schedular rating for unilateral hallux valgus and the manifestations of hallux vagus do not more nearly approximate or equate to a moderate severe left foot injury. 2. Before foot surgery in November 2009 and from February 2010, after the termination of a temporary total rating for convalescence, the 10 percent rating for right hallux valgus with bunionectomy and osteotomy is the maximum schedular rating for unilateral hallux valgus and the manifestations of hallux vagus do not more nearly approximate or equate to a moderate severe right foot injury. 3. From February 2007, after the termination of a temporary total rating for convalescence, the hammer toe deformity of the left second, third, fourth, and fifth toes does not more nearly approximate or equate to a severe left foot injury. 4. Before February 2008, and before a temporary total rating for convalescence, the hammer toe deformity of the right second, third, fourth, and fifth toes more nearly approximated a moderately severe right foot injury. 5. Throughout the appeal period, the hammer toe deformity of the right second, third, fourth, and fifth toes does not more nearly approximate or equate to a severe right foot injury. 6. Throughout the appeal period, total occupational and social impairment due to posttraumatic stress disorder has not been demonstrated. CONCLUSIONS OF LAW 1. During the appeal period and except for the period covered by a temporary total rating for convalescence, the criteria for an initial rating higher than 10 percent for left foot hallux valgus have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5280 and 5284 (2012). 2. During the appeal period and except for the period covered by a temporary total rating for convalescence, the criteria for an initial rating higher than 10 percent for right foot hallux valgus have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5280 and 5284 (2012). 3. From February 2007, after the termination of a temporary total rating for convalescence, the criteria for an initial rating higher than 20 percent for a hammer toe deformity of the left second, third, fourth, and fifth toes have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5282 and 5284 (2012). 4. Throughout the appeal period, the criteria for an initial rating of 20 percent for a hammer toe deformity of the right second, third, fourth, and fifth toes have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5282 and 5284 (2012). 5. Throughout the appeal period, the criteria for an initial rating higher than 20 percent for a hammer toe deformity of the right second, third, fourth, and fifth toes have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5282 and 5284 (2012). 6. Throughout the appeal period, the criteria for a rating higher than 70 percent for posttraumatic stress disorder have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9411 (2012). The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, codified in part at 38 U.S.C.A. §§ 5103 and 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. Duty to Notify Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. The VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO provided the Veteran with content-complying VCAA notice on the underlying claims of service connection, by letters dated in January 2005 and in March 2006. Where, as here, service connection has been granted and an initial disability rating has been assigned, the claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claims for initial higher ratings for the disabilities of the left and right foot and for posttraumatic stress disorder. Dingess, 19 Vet. App. 473. Duty to Assist VA has made reasonable efforts to identify and obtain relevant records in support of the claim. 38 U.S.C.A. § 5103A. The RO has obtained service records, VA records, and private medical records. The Veteran was afforded VA examinations in May 2005, September 2006, January 2008, December 2009, January 2011, and May 2012. As the reports of the VA examinations are based on the Veteran's medical history and described the disabilities in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). As there is no indication of the existence of additional evidence to substantiate the claims, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claims is required to comply with the duty to assist. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS General Rating Policy Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589, 592-93 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 519 (2007). Rating Factors for a Disability of the Feet and Toes Rating factors for a disability of the musculoskeletal system include functional loss. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Functional loss may also be due to weakness or atrophy. 38 C.F.R. § 4.40; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). As for joints, the factors of disability reside in reductions of the joints normal excursion of movements in different planes. Factors for considerations include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, atrophy of disuse, instability of station, disturbance of locomotion, interference with sitting and standing, and weight-bearing. 38 C.F.R. § 4.45; DeLuca, 8 Vet. App. at 206-07. Also with periarticular pathology, painful motion is factor to be considered. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Rating Criteria for Hallux Valgus and Hammer Toe Deformity Left and right hallux valgus with bunionectomy and osteotomy are each rated 10 percent under Diagnostic Code 5280. Under Diagnostic Code 5280, a 10 percent rating is the maximum schedular rating for hallux valgus with a postoperative resection, including bunionectomy and osteotomy. Left and right hammer toe deformity are each rated 10 percent under Diagnostic Code 5282. Under Diagnostic Code 5282, a 10 percent rating is the maximum schedular rating for a hammer toe deformity of all toes. As schedular ratings higher than 10 percent are not permissible under either Diagnostic Code 5280 or Diagnostic Code 5282, it is permissible to rate a disability under another potentially applicable Diagnostic Code. The other potentially applicable Diagnostic Code is Diagnostic Code 5284. Diagnostic Code 5284 applies to other foot injuries not specifically ratable under another Diagnostic Code. Under Diagnostic Code 5284, the criterion for a 20 percent rating is a moderately severe injury. The criterion for a 30 percent rating, the maximum schedular rating is a severe foot injury. Facts On VA examination May 2005, following surgery that same month, the Veteran complained of the inability to stand for more than a few minutes and to walk more than a few yards. There was no abnormal motion, crepitus, edema, effusion fatigability, or instability. There was moderate tenderness at the base of the 1st metatarsals, but no painful motion, muscle atrophy, or weakness. There was no deformity or structural abnormality of either foot. Range of motion of the ankles was normal with no additional loss of motion on repetitive motion. There was no evidence of malunion or nonunion of the tarsal or metatarsal joints by X-ray. Private medical records show that in January 2006 normal footwear was recommended. The objective findings included good range of motion of the toes with nonpainful pressure. In March 2006 X-rays showed good anatomic alignment and healing of bones. In September 2006, VA record show that the 1st metatarsal phalangeal joint motion was smooth and asymptomatic, and light touch was intact bilaterally and vibratory sensation was intact at the first metatarsal phalangeal joints. On VA examination in September 2006, it was noted that the condition of the feet did not usually interfere with the Veteran's occupation as it was an office job. On VA examination May 2012, the Veteran did not have a claw foot. The VA examiner stated that the remaining functions of the feet were not so diminished that amputation with prosthesis would equally serve the Veteran. Hallux Valgus Left and right hallux valgus with bunionectomy and osteotomy are each rated 10 percent under Diagnostic Code 5280 throughout the appeal period except for a period of convalescence following surgery in November 2009 and ending February 2010. The separate 10 percent ratings for left and right hallux valgus with bunionectomy and osteotomy are the maximum schedular rating under Diagnostic Code 5280. A rating higher than 10 percent is potentially assignable under Diagnostic Code 5284. Throughout the appeal, the manifestations of the left and right hallux valgus with bunionectomy and osteotomy were encompassed in the criteria for a 10 percent rating, the maximum schedular rating under Diagnostic Code 5280. And the overall functions of the feet do not more nearly approximate or equate to a moderately severe foot impairment, the criterion for the next higher rating, under Diagnostic Code 5284. Hammertoes The left hammer toe deformity of the second, third, fourth, and fifth toes is rated 20 percent throughout the appeal period, except for a period of convalescence following surgery in December 2006 and ending February 2010. Under Diagnostic Code 5282, a 10 percent rating is the maximum schedular rating for a hammer toe deformity of all toes. A rating higher than 10 percent, that is, the current 20 percent rating was assigned for a moderately severe foot injury, applying the criterion of Diagnostic Code 5284. Under Diagnostic Code 5284, the criterion for the next higher rating, 30 percent, is a severe foot injury. The right hammer toe deformity of the second, third, fourth, and fifth toes was rated noncompensable before surgery in November 2007 and 20 percent from February 2008, following the termination of the temporary total rating for convalescence. Under Diagnostic Code 5282, the criterion for a 10 percent rating is hammer toes of all toes without clawfoot, which is the maximum schedular rating for a hammer toe deformity of all toes. A rating higher than 10 percent, that is, the current 20 percent rating was assigned for a moderately severe foot injury, applying the criterion of Diagnostic Code 5284. Under Diagnostic Code 5284, the criterion for the next higher rating, 30 percent, is a severe foot injury. Before February 1, 2008, the right hammer toe deformity of the second, third, fourth, and fifth toes was rated noncompensable. Under Diagnostic Code 5282, the criterion for a 10 percent rating is hammer toes of all toes without clawfoot. Private medical records show that in May 2005 there were arthroplasties to the 2nd through 5th toes of the right foot with K wire fixation. In May 2012, the VA examiner noted that residuals of the hammer toe corrections involved all toes of the right foot. Therefore before February 1, 2008, the right foot hammer toe deformity met at least the criterion for a 10 percent rating, the maximum schedular rating under Diagnostic Code 5282. As for the next higher rating 20 percent under Diagnostic Code 5284, in a rating decision in June 2012, the RO increased the rating for the right foot hammer toe deformity to 20 percent from February 2008. The rating increase was based on the findings of a VA examination in May 2012, and the findings were not a material change from the findings on VA examination in September 2006. For example, in May 2012, the Veteran complained of pain and loss of function and there was less than 5 degrees of flexion or extension of the proximal interphalangeal joints of the toes 2 to 5, as well as pressure and pain on manipulation of the toes and calluses over the metatarsal heads. Similarly, in September 2006 on VA examination the Veteran was unable to actively extend the toes 2 to 4, there was painful motion of the metatarsal phalangeal joints, marked tenderness to palpation of the metatarsal heads on the plantar surfaces, significant calluses representing transfer lesions and calluses on the dorsal aspect of the toes. And the Board concludes that the findings in September 2006 more nearly approximate the criterion of a moderately severe foot injury for a 20 percent under Diagnostic Code 5284, which establishes a 20 percent rating for the right foot hammer toe deformity throughout the appeal, except fot period of convalescence. As the left and right foot hammer toe deformities are currently rated 20 percent each under Diagnostic Code 5284 throughout the appeal, the remaining question is whether the criterion for the next higher rating under Diagnostic Code 5284 is demonstrated. On VA examination in December 2009, the VA examiner expressed the opinion that the bilateral foot disability was at least moderately severe, considering hallux valgus and hammer toe deformity, but a more definitive statement about severe functional impairment could not be made because the examination was incomplete as the Veteran's toes were still bandage following recent surgery. On VA examination in May 2012, the VA examiner expressed the opinion that the bilateral foot disability resulted in severe functional impairment, considering hallux valgus and hammer toe deformity. The combined rating for hallux valgus (10 percent) and hammer toe deformity (20 percent) for each foot is 30 percent. The combined rating of 30 percent is equivalent to the 30 percent rating for a severe foot injury. To now rate each foot 30 percent for a severe foot injury would be pyramiding, which is not permissible under 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided). In other words the overall functional impairment of the foot is the result of both hallux valgus and a hammer toe deformity, which equates to a severe foot injury, ratable at 30 percent. And a rating higher that 20 percent for each foot under Diagnostic Code 5284 is not warranted. And the remaining function of each foot does not more nearly approximate loss of use of a foot, ratable as 40 percent under Note to Diagnostic Code 5284, as the VA examiner in May 2012 found that the Veteran would not equally be well served by amputation. 38 C.F.R. §4.63 (loss of use of a foot exists when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below knee with use of a suitable prosthetic appliance). Throughout the appeal, the manifestations of the left and right hammer toe deformity are encompassed in the criteria for a 20 percent rating under Diagnostic Code 5284. And the overall function of the feet does not more nearly approximate or equate to severe foot impairment the criterion for the next higher rating under Diagnostic Code 5284 or loss of use of the foot under 38 C.F.R. § 4.63. Posttraumatic Stress Disorder Rating Criteria Posttraumatic stress disorder (PTSD) is rated 70 percent under Diagnostic Code 9411 under the General Rating Formula for Mental Disorders. The criteria for a 100 percent rating are total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The evidence considered in determining the level of impairment from PTSD under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in Diagnostic Code 9411. VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, symptoms pertaining to the diagnosis of PTSD in the DSM-IV (American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994).) The Global Assessment of Functioning (GAF) score is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. GAF scores ranging from 41 to 50 reflect serious symptoms (e.g. suicidal ideation or severe obsessional rituals), or any other serious impairment in social or occupational functioning. GAF scores from 51 to 60 represent moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). While the GAF score is relevant evidence, the GAF score alone is neither statutorily nor regulatory controlling in rating a psychiatric disorder; rather the rating is determined by the application of the Rating Schedule, 38 C.F.R. Part 4, as explained above. Neither the number of symptoms, nor the type of symptoms, nor the GAF score controls in determining whether the criteria for the next higher rating have been met. It is the effect of the symptoms, rather than the presence of symptoms, pertaining to the criteria for the next higher rating, that is determinative. Facts and Analysis The Veteran asserts that a higher rating is warranted for PTSD. Significantly, the record reflects the Veteran was employed until February 2010. Thus, the maximum 100 percent evaluation is not warranted at any time during the appeal period, prior to February 2010. Total occupational impairment is not established as evidenced by her employment. The January 2011 VA examiner noted the Veteran was oriented, neatly groomed, and able to perform activities of daily living. No gross impairment of thought processes or communication was reported. The examiner concluded it is least at least as likely as not that PTSD rendered the Veteran unable to maintain substantially gainful employment, but it did not result in total occupational and social impairment. After February 2010, there is no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, memory loss for names of close relatives, own occupation, or own name or symptom of PTSD that more nearly approximate of equated to total occupational and social impairment. While the Veteran is receiving disability benefits from the Social Security Administration, the records are not relevant to the issue of whether a rating higher than 70 percent is warranted after February 2010. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). The GAF scores since February 2010 were 45 and 53 indicative of only moderate symptoms. For these reasons, the preponderance of the evidence is against the claim and there is no doubt to be resolved. Consequently, a rating higher than 70 percent for PTSD is not warranted. Extraschedular Consideration Although the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for a rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for a service-connected disability are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the rating criteria. If the criteria reasonably describe a disability level and symptomatology, then the disability picture is encompassed by the Rating Schedule, and the assigned schedular rating is, therefore, adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Comparing the Veteran's current disability levels and symptomatology to the Rating Schedule, the degree of disability for hallux valgus and hammer toe deformity of each foot and the degree of disability for PTSD are encompassed in the Rating Schedule under Diagnostic Codes 5280, 5282, 5284, and 9411. In other words, the Veteran does not have any symptomatology not already encompassed by the Rating Schedule. And the Board finds that the rating criteria reasonably describe the Veteran's disabilities and symptomatology under the applicable rating criteria of the Rating Schedule, and the assigned schedule ratings are, therefore, adequate and no referral to an extraschedular rating is required under 38 C.F.R. § 3.321(b)(1). Total Disability Rating for Compensation based on Individual Unemployability The RO has granted the Veteran a total disability rating for compensation based on individual unemployability from February 19, 2010, the date the Veteran last worked. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase). A TDIU is not warranted prior to February 19, 2010. The Order follows on the next page.). ORDER An initial rating higher than 10 percent for hallux valgus with bunionectomy and osteotomy of the left foot is denied. An initial rating higher than 10 percent for hallux valgus with bunionectomy and osteotomy of the right foot is denied. An initial rating higher than 20 percent for hammer toe deformity of the left second, third, fourth, and fifth toes is denied. Before February 1, 2008, an initial rating of 20 percent for hammer toe deformity of the right second, third, fourth, and fifth toes is granted. From the effective date of service connection an initial rating higher than 20 percent for hammer toe deformity of the right second, third, fourth, and fifth toes is denied. An initial rating higher than 70 percent for posttraumatic stress disorder is denied. ______________________________________________ George E. Guido Jr. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs