Citation Nr: 1322036 Decision Date: 07/10/13 Archive Date: 07/18/13 DOCKET NO. 08-36 373 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to a higher initial rating (evaluation) for osteoarthritis of the left ankle, in excess of 10 percent prior to October 23, 2008, and in excess of 20 percent thereafter, for accrued benefits purposes. 2. Entitlement to a higher initial rating (evaluation) for osteoarthritis of the right ankle, in excess of 10 percent prior to October 23, 2008, and in excess of 20 percent thereafter, for accrued benefits purposes. 3. Entitlement to service connection for a left knee disability, for accrued benefits purposes. 4. Entitlement to an earlier effective date prior to January 24, 2008 for service connection bilateral ankle disabilities, for accrued benefits purposes. 5. Whether new and material evidence has been received to reopen service connection for diabetes mellitus, for accrued benefits purposes. 6. Entitlement to an increased rating (evaluation) for service-connected gastritis, in excess of 10 percent prior to September 12, 2008, and in excess of 30 percent from September 12, 2008, for accrued benefits purposes. 7. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU), for accrued benefits purposes. 8. Entitlement to a higher combined rating than 70 percent as of January 24, 2008, for accrued benefits purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran had active duty service from September 1967 to September 1969. The Veteran died in February 2011. The appellant is the surviving spouse of the Veteran and has substituted for the Veteran and is pursuing his claims as an accrued benefits claimant. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. On December 5, 2011, the appellant filed a motion to substitute for the deceased Veteran's claim, which motion was within one year of his death. The RO completed a substitution review in July 2012. In a January 2013 rating decision, the RO found that the appellant was a substitute claimant for the Veteran's appeal. A January 2013 letter advised the appellant that the RO would continue to process the Veteran's appeal with her as the substitute claimant. The Board finds that the appellant's motion to substitute and the RO's handling of the claim were proper and that the appellant is an accrued benefits claimant pursuing those benefits that the Veteran had been seeking at the time of his death in February 2011. The issue of entitlement to service connection for a left knee disability and entitlement to a higher combined rating 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. FINDINGS OF FACT 1. For the entire rating period, osteoarthritis of the left ankle more nearly approximated marked limitation of motion of the ankle. 2. For the entire rating period, osteoarthritis of the right ankle more nearly approximated marked limitation of motion of the ankle. 3. A claim for service connection for a bilateral ankle disability was received on January 24, 2008. 4. In a February 2007 decision, the Board denied an appeal for service connection for diabetes mellitus. 5. The evidence received since the February 2007 Board decision denying service connection for diabetes mellitus is cumulative, does not relate to an unestablished fact necessary to substantiate the claim, and does not raise a reasonable possibility of substantiating the claim. 6. Prior to September 12, 2008, gastritis was manifested by symptoms of nausea, vomiting, and stomach pain and did not manifest multiple small eroded or ulcerated areas. 7. From September 12, 2008, gastritis was manifested by symptoms of nausea, vomiting, and stomach pain and by multiple small eroded or ulcerated areas and without severe hemorrhages or large ulcerated or eroded areas. 8. The Veteran was rendered unable to maintain substantially gainful employment as a result of his service-connected disabilities for the entire rating period as of January 24, 2008. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the appellant's favor, the criteria for a 20 percent (maximum) disability rating for osteoarthritis of the left ankle have been met for the period prior to October 23, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). 2. Resolving reasonable doubt in the appellant's favor, the criteria for a 20 percent (maximum) disability rating for osteoarthritis of the right ankle have been met f or the period prior to October 23, 2008. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2012). 3. An effective date prior to January 24, 2008 for the grant of service connection for a left and right ankle disability is not warranted. 38 U.S.C.A. §§ 5107, 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.400 (2012). 4. The February 2007 Board decision that denied service connection for diabetes mellitus is final. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. § 20.1100 (2012). 5. New and material evidence has not been received to reopen service connection for diabetes mellitus. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2012). 6. Prior to September 12, 2008, the criteria for a rating in excess of 10 percent for gastritis were not met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7307 (2012). 7. From September 12, 2008, the criteria for a rating in excess of 30 percent for gastritis are not met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7307 (2012). 8. Resolving reasonable doubt in the appellant's favor, the criteria for a TDIU have been met from January 24, 2008. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102 , 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102 , 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102 , 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1) . See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The Court has held that the VCAA requires additional notice when a claimant seeks to reopen a previously denied claim. In Kent v. Nicholson, 20 Vet. App. 1, 9-10 (2006), the Court held that VA must examine the basis for a denial of a previously disallowed claim and provide the appellant with notice of the evidence of service connection found lacking in the previous denial. In this case, in an August 2007 letter, the RO provided notice to the Veteran of the bases (no evidence of Vietnam service and no treatment within one year of discharge from service) for the prior denial of his claim for service connection for diabetes mellitus; regarding what information and evidence was needed to reopen the claim as well as what evidence was needed to substantiate a claim for service connection; what information and evidence must be submitted by the Veteran; and what evidence VA would obtain. This letter included provisions for disability ratings and for the effective date of the claim. In a claim for an increased rating, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). The information required by Vazquez was provided in the May 2008 letter. The appeals for higher initial ratings for right and left ankle disabilities stem from the disagreement with the initial ratings assigned in the June 2008 rating decision which granted service connection for osteoarthritis of the right and left ankles. Because the appeal of those issues stems from the Veteran's disagreement with the initial ratings following the grant of service connection for the right and left ankle, no additional notice is required. The United States Court of Appeals for the Federal Circuit (Federal Circuit) and the Court have held that, once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App.112 (2007); VAOPGCPREC 8-2003 (in which the VA General Counsel interpreted that separate notification is not required for "downstream" issues following a service connection grant, such as initial rating and effective date claims); 38 C.F.R. § 3.159(b)(3)(i) (2012) (no duty to provide VCAA notice arises upon receipt of a Notice of Disagreement). A claim for a TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420 (1999). A TDIU claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. See e.g., Parker v. Brown, 7 Vet. App. 116, 118 (1994). A September 2009 letter provided notice of the evidence required to substantiate the claim for a TDIU. This letter notified the Veteran of what information and evidence must be submitted by the Veteran, and what evidence VA would obtain. The September 2009 letter included provisions for disability ratings and effective dates. A March 2011 letter advised the appellant of the information and evidence required to substantiate a claim for service connection for accrued benefits purposes, and advised her what information and evidence must be submitted by the appellant, and what evidence VA would obtain. Because this is a case in which the appellant substituted for the Veteran, the valid VCAA notice was only required to be provided to the Veteran for the issues that are on appeal. The Veterans Benefits Administration (VBA) has indicated that a new VCAA notice letter will not be provided to an individual requesting substitution if an adequate VCAA notice letter was previously sent to the original claimant. See VBA Fast Letter 10-30 (Aug. 10, 2010). The notice included provisions for disability ratings and for the effective date of the claims. With regard to the duty to assist, the Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence, and has provided VA examinations. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA treatment records and private treatment records, Social Security records, and the Veteran's statements, and the appellant's statements, and VA examination reports. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran was afforded a VA examination of his ankles in October 2008. He was afforded VA examinations for gastritis in August 2008 and September 2008. In December 2010, he was afforded a VA examination which addressed the impact of his service-connected disabilities on employability. The VA examinations considered all the pertinent evidence of record, the Veteran's statements and history, review of the claims file and provided clinical examinations which addressed the Veteran's disabilities. The October 2008 VA examination addressed the range of motion of the Veteran's ankles and the factors enumerated by the Court in Deluca v. Brown, 8 Vet. App. 202 (1995), including pain, weakness, stiffness, and incoordination. The August 2008 and September 2008 VA examinations addressed the Veteran's gastritis symptoms and manifestations. The December 2010 VA examination provided a medical opinion regarding the Veteran's employability, which was based upon a review of the Veteran's reported symptoms and impairment related to each of his service-connected disabilities. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination regarding the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist. Disability Ratings - Law and Regulations Disability evaluations (ratings) are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155 ; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating was filed until the final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). At the time of an initial rating, separate ratings can 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 (1999). It should also be noted that, when evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca, 8 Vet. App. 202. 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. 38 C.F.R. § 4.40; DeLuca at 205. 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 or evidenced by visible behavior of the claimant undertaking the motion. Id. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Id. 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. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention 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. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. The Board has reviewed all the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Initial Rating for Left and Right Ankle Osteoarthritis A June 2008 rating decision granted service connection for limitation of motion of the left and right ankles. A 10 percent rating was assigned for each ankle from January 2008. A 20 percent rating was assigned for each ankle from October 23, 2008. The Veteran appealed the initial ratings for the ankle disabilities. The Veteran asserted that his ankle disabilities caused functional impairments, including decreased endurance with walking or standing. Limitation of motion of the ankles is rated according to Diagnostic Code 5271. A 10 percent rating is assignable for moderate limitation of motion. A 20 percent (maximum schedular) rating is assignable for marked limitation of motion. The rating criteria provide that normal dorsiflexion of the ankle is to 20 degrees. Normal plantar flexion is to 45 degrees. See 38 C.F.R. § 4.71, Plate II. Upon VA examination in October 2008, the Veteran complained of limitation of motion of the ankles. The Veteran reported weakness, stiffness, swelling, heat, giving way and lack of endurance. The Veteran denied redness, locking, fatigability, and dislocation. He reported constant pain in both ankles. On physical examination of the right ankle in October 2008, there was tenderness and guarding of movement. The right ankle showed no signs of edema, effusion, weakness, redness, heat, or subluxation. On physical examination of the left ankle, there was tenderness and guarding of movement. The left ankle showed no edema, effusion, redness, or subluxation. The VA examiner indicated that examination of the ankles revealed right and left dorsiflexion deformity, right and left plantar flexion deformity, right and left inversion deformity and right and left eversion deformity. Range of motion tests of the ankle showed dorsiflexion of the right ankle to 10 degrees, with pain at 10 degrees and plantar flexion of the right ankle to 15 degrees with pain at 15 degrees. The Veteran had dorsiflexion of the left ankle to 10 degrees, with pain at 10 degrees. He had plantar flexion of the left ankle to 15 degrees with pain at 15 degrees. The VA examiner indicated that the function of the right ankle was additionally limited by pain, and pain had the major functional impact. The VA examiner indicated that joint function on the right was not additionally limited by fatigue, weakness, lack of endurance, or incoordination. The VA examiner indicated that the above limited the joint function by 10 degrees. The VA examiner indicated that the function of the left ankle was additionally limited by pain, and pain had the major functional impact. The joint function was not additionally limited by fatigue, weakness, lack of endurance, or incoordination. The VA examiner estimated that the above limited the joint function by 10 degrees. X-rays of the ankles upon VA examination in October 2008 showed The right and left ankle showed degenerative changes of both ankles. The right ankle showed marked periarticular osteopenia and osteoarthritic changes of the talonavicular joint. The left ankle showed an internal fixation plate and screws in the distal fibula and medial malleolus with evidence of healed fracture and post-traumatic osteoarthritic changes of the ankle joint. The VA examiner indicated that there was no indication of a malunion to the os calcis or astralgus of either ankle. Based upon all of the evidence, lay and medical, including the Veteran's complaints, and considering functional limitation of the ankles due to weakness, stiffness, and lack of endurance, the Board finds that the left and right ankle disabilities more nearly approximate marked limitation of motion for the entire rating period. The October 2008 VA examination reflects that the Veteran had dorsiflexion of both ankles to 10 degrees. For these reasons, and resolving reasonable doubt in the appellant's favor, a 20 percent rating is warranted throughout the appeal period for the right and left ankle disabilities. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. As 20 percent is the maximum schedular evaluation available under DC 5271, a higher schedular rating is not possible. The criteria for a rating in excess of 20 percent are not met for any period, as the record does not reflect ankylosis of either ankle in plantar flexion between 30 and 40 degrees or in dorsiflexion between 0 and 10 degrees. For a rating in excess of 20 percent, ankylosis of the ankle joint would have to be demonstrated. 38 C.F.R. § 4.71a, Diagnostic Code 5270. As the October 2008 examination report of record states that no ankylosis is present and has range of motion findings that specifically show motion of the right ankle to, at worse 8 degrees and 10 degrees dorsiflexion, and there is no additional limitation after repeated use of the ankle, there is no basis for a schedular evaluation in excess of 20 percent. For these reasons and resolving reasonable doubt in the appellant's favor, an initial disability rating of 20 percent is warranted for a each ankle under DC 5271, based upon marked limitation of motion of the left and right ankle. 38 C.F.R. §§ 4.3, 4.7. Effective Date for Service Connection for Osteoarthritis of the Ankles The law and regulations governing effective dates establish that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefore. 38 U.S.C.A. § 5110(a). The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefore is received within one year from such date of discharge or release. 38 U.S.C.A. § 5110(b)(1). This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a) (West 2002); 38 C.F.R. § 3.151(a) (2012). A claim 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) (2012). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a) (2012). In a June 2008 statement, the Veteran asserted that an effective date back to 1995 was warranted for a grant of service connection for bilateral ankle disabilities. The Veteran asserted that there was medical documentation of his bilateral ankle disabilities dating back to 1995. A review of the claims file reflects that a claim for service connection for bilateral ankle disabilities was initially received in January 2008. There is no communication in the record that could be interpreted as an earlier claim, formal or informal, for service connection for a bilateral ankle disabilities prior to January 2008. Private treatment records dated in 1995 reflect treatment for a left ankle disability; however, no claim for an ankle disability was received prior to January 2008. See Brannon v. West, 12 Vet. App. 32, 35 (1998) (the mere presence of medical evidence of a condition does not establish an intent on the part of the veteran to seek service connection for the disability). In sum, the Board finds that no claim for service connection for ankle disabilities was received prior to January 24, 2008. As such, an effective prior to the date of receipt of the Veteran's claim for service connection is legally precluded. The controlling statute and regulation provide that the effective date for a grant of service connection is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(b)(2)(i). Based on these findings, and applying the regulation that provides the proper effective date for disability compensation based on direct service connection, the Board finds the effective date of January 24, 2008 is correct, and an earlier effective date is precluded by law and regulation. See 38 U.S.C.A. §§ 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2)(i) (2012). Claim to Reopen Service Connection for Diabetes Mellitus The Board previously denied the appeal for service connection for diabetes mellitus in a February 2007 decision. The Board found that there was no credible evidence that the Veteran had duty or visitation in Vietnam during service, no evidence that diabetes mellitus manifested within a presumptive period after service, and no evidence that diabetes mellitus was related to a disease or injury in service. The Board decision was final when issued. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. In June 2007, the Veteran filed a claim to reopen service connection for diabetes mellitus. The January 2008 rating decision on appeal denied reopening of service connection for diabetes mellitus, finding that new and material evidence had not been received. A claim that has been disallowed by the Board may not be reopened except upon the submission of new and material evidence. 38 U.S.C.A. § 7104(b). In general, if new and material evidence is presented or secured with respect to a finally adjudicated claim, VA shall reopen and review the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the VA Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Evidence is presumed to be credible for the purpose of determining whether the case should be reopened; once the case is reopened, the presumption as to the credibility no longer applies. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence must be both new and material; if the evidence is new, but not material, the inquiry ends and the claim cannot be reopened. Smith v. West, 12 Vet. App. 312 (1999). If the Board determines that the evidence submitted is new and material, it must reopen the case and evaluate the appellant's claim in light of all the evidence. Justus, 3 Vet. App. at 512. The evidence of record at the time of the prior Board decision included service treatment records and personnel records, private treatment records dated from May 1995 to July 2002, statements from Dr. H.S., M.D., dated in March 2003 and March 2004, and statements from the Veteran. Service treatment records do not show complaints or diagnoses of diabetes mellitus. A statement from Dr. H.S., dated in March 2004, indicated that the Veteran was treated for diabetes mellitus in the early 1970s. He indicated that treatment records were not available. The Veteran's statements reflect his contention that the starches and sugars in his diet during service contributed to diabetes mellitus. The evidence received since the 2007 Board decision includes additional statements submitted by the Veteran and copies of the March 2004 statement from Dr. H.S, which was previously considered, statements submitted by the appellant, and a statement from Dr. H.S., dated in February 2008. The Board finds that the evidence received since the prior Board decision is not new, as the statements and evidence submitted since the last final denial are duplicative of the evidence previously of record. The written statements submitted since the prior denial reflect the Veteran's contention that diabetes mellitus was related to the diet that he had during service, as well as the contention that diabetes mellitus manifested within one year of service. Such contentions were previously considered and rejected in the Board's prior denial of service connection for diabetes mellitus. The Board previously considered statements from Dr. H.S. regarding the onset of diabetes mellitus in the prior decision. The February 2008 statement from Dr. H.S. is, therefore, not new and material, as it is redundant of the evidence that was previously of record. The statements submitted by the appellant reflect her contention that the Veteran was diagnosed with diabetes mellitus in January 1970. As the appellant's contentions are duplicative of the contentions previously presented by the Veteran, they are not new evidence. The Board finds that in this case the evidence that is new is not material evidence upon which the claim may be reopened. Cox v. Brown, 5 Vet. App. 95 (1993). In sum, none of the evidence received since the February 2007 Board decision constitutes competent evidence that the Veteran's diabetes mellitus manifested in service, or within a presumptive period, or was otherwise related to service. Because the new evidence, in the context of all the evidence of record, has not fulfilled the threshold burden of being new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable and the claim remains denied. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Increased Rating for Gastritis Service connection for gastritis has been in effect since January 2003. A 10 percent rating was assigned from January 2003. A claim for an increased rating was received in July 2007. A January 2008 rating decision denied an increased rating. As explained in the February 2009 Supplemental Statement of the Case, a 30 percent rating was granted for gastritis from September 12, 2008. The Veteran contended that he had multiple ulcers, which warranted a higher rating. Gastritis has been evaluated according to Diagnostic Code 7307, which pertains to hypertrophic gastritis. A 10 percent rating is assignable for chronic hypertrophic gastritis with small nodular lesions and symptoms. A 30 percent rating is assignable for chronic hypertrophic gastritis with multiple small or eroded or ulcerated areas and symptoms. A 60 percent rating is assignable for chronic hypertrophic gastritis with severe hemorrhages or large ulcerated or eroded areas. 38 C.F.R. § 4.114, DC 7307. The Veteran had a VA examination in August 2007. The Veteran reported nausea, bloating, vomiting, and stomach pain. He reported that the condition did not affect his body weight. He reported that stomach pain occurred frequently with stress and some foods. He reported distention. The Veteran reported that ulcer treatment helped only partially. The Veteran reported that nausea and vomiting occurred two times per week. He reported that he had never vomited blood. He reported that he did not have tarry black stools. The Veteran reported that he had not been hospitalized or had surgery for his stomach condition. The Veteran denied symptoms of constipation, hypoglycemic reaction, and diarrhea. The Veteran reported that his stomach condition did not cause incapacitation. The Veteran reported no limitation due to this condition. On physical examination of the abdomen in August 2007, there was tenderness to palpation. The VA examiner indicated that there were no findings of liver enlargement, superficial distention of the veins, striae on the abdominal wall, an ostomy, ascites, splenomegaly, or aortic aneurysm. The August 2007 VA examiner indicated that, for the claimed condition of gastritis, the diagnosis was gastritis, ulcers. The subjective factors were nausea, vomiting, bloating, sharp stomach pain, and stomach distention that occurred frequently after eating some foods and with stress. The objective factors were epigastric and periumbilical tenderness. The August 2007 VA examiner indicated that there was no anemia and no finding of malnutrition. The Veteran had a VA examination in August 2008. The Veteran reported constant stomach pain. He reported that the condition did not affect body weight. He reported stomach pain in the upper abdomen that occurred constantly, especially with meals. The Veteran reported that his stomach pain was relieved by medication. He reported nausea and vomiting as often as 2 times per week. He reported that he had not been hospitalized or had surgery for this condition. He reported that his stomach condition did not cause incapacitation. The August 2008 VA examiner diagnosed gastritis with ulcers. The VA examiner noted subjective findings of cramping, abdominal pain, nausea, vomiting and epigastric tenderness. The VA examiner indicated that there were no findings of anemia or malnutrition. Upon VA examination in September 2008, the Veteran reported constant stomach pain. The Veteran reported that the condition did not affect his body weight. He reported abdominal pain, which was located in the upper abdomen. The pain occurred constantly. The Veteran reported that the pain was precipitated by meals and was relieved by medications such as Mylanta and Zantac. The Veteran reported nausea and vomiting as often as two times per week. He reported that he never vomited blood. He reported that he did not have tarry stools. The Veteran reported that he was never hospitalized for this condition. The Veteran reported symptoms of constipation. He indicated that he did not experience diarrhea and abdominal distention. He reported that his stomach condition did not cause incapacitation. The VA examiner indicated that the stomach condition did not cause significant anemia. The VA examiner indicated that there were no findings of malnutrition. The VA examination report indicated that EGD results were pending. An EGD was performed in October 2008. The report reflects that examination of the stomach including a retroflexed view of the cardia was unremarkable, except that in the antrum there were five less than 0.1 centimeter ulcers that were biopsied an sent for analysis. In this case, a 30 percent staged rating was assigned for gastritis from September 12, 2008, based upon the findings of the VA examination in September 2008. The staged rating was announced in the Supplemental Statement of the Case dated in February 2009. A VA outpatient treatment record dated in March 2009 reflects that the Veteran reported nausea and emesis for one to two weeks. The Veteran denied hematemesis, diarrhea, constipation, abdominal pain, and bloating. He reported that he did not notice hematochezia or melena. The Board has considered the lay and medical evidence and finds that the evidence does not support a rating in excess of 10 percent for gastritis for the period prior to September 12, 2008. Prior to September 12, 2008, the evidence showed that gastritis was manifested by nausea, bloating, and stomach pain. The evidence during this time period did not demonstrate that gastritis was manifested by multiple small eroded or ulcerated areas. Accordingly, the criteria for the assignment of a 30 percent rating under DC 7307 were not met or more nearly approximated for this period. 38 C.F.R. § 4.114. The Board finds that the evidence does not support a rating in excess of 30 percent for the period from September 12, 2008. Under Diagnostic Code 7307, a 30 percent rating is assignable for chronic hypertrophic gastritis, with severe hemorrhages, or large ulcerated or eroded areas. In this case, the record does not show findings of severe hemorrhages or large ulcerated or eroded areas. Accordingly, the criteria for a 60 percent are not met or more nearly approximated. 38 C.F.R. § 4.114. For these reasons, the Board finds that a preponderance of the evidence is against the appeal for a rating for gastritis higher than 10 percent prior to September 12, 2008, and in excess of 30 percent on and after September 12, 2008. As there is a preponderance of the evidence against the claim for an increased rating, reasonable doubt may not be resolved in the appellant's favor. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. TDIU A TDIU may be awarded upon a showing that a veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from service-connected disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of one 60 percent disability or one 40 percent disability in combination, disabilities on one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. § 4.16(a). As the Veteran's degenerative arthritis, pes planus, hallux valgus and plantar fasciitis, left foot, degenerative arthritis, pes planus, hallux valgus and plantar fasciitis, right foot, ostearthritis of the right ankle, osteoarthritis of the left ankle, and osteoarthritis of the right knee all pertained to the orthopedic system, they are considered to be one disability for the purposes of meeting the combined rating criteria for one disability rated at lest 40 percent disabling with other disabilities combining to at least 70 percent. 38 C.F.R. § 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Where a veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation and Pension Service. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91. The issue is whether the veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the veteran's service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether a veteran is entitled to a TDIU, neither the non-service-connected disabilities nor age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. In Van Hoose, 4 Vet. App. at 363, the Court noted, "For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which takes the claimant's case outside the norm of such veteran...The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." During the Veteran's lifetime, service connection was in effect for degenerative arthritis, pes planus, hallux valgus and plantar fasciitis, left foot, degenerative arthritis, pes planus, hallux valgus and plantar fasciitis, right foot, gastritis, ostearthritis of the right ankle, osteoarthritis of the left ankle, and osteoarthritis of the right knee. In this case, the percentage requirements set forth in § 4.16(a) were met from January 24, 2008. The Veteran had service-connected disabilities of both lower extremities which combined to 40 percent disabling and had a combined rating of 70 percent from January 24, 2008. In order to prevail in a TDIU claim, the record must also show that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. After a review of all the evidence, the Board concludes that the Veteran was unable to obtain or maintain substantially gainful employment from January 24, 2008. In this case, although the formal claim for a TDIU was not received until June 2009, he had rating claims pending as of January 24, 2008. During the pendency of the claims for higher rating or initial rating, the Veteran reported that he last worked full-time in 1994. The Court has held that entitlement to a TDIU may be an element of claims for higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU claim is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim when the Roberson requirements are met). During his lifetime and in support of his claim for TDIU, the Veteran reported that his occupation was board and care proprietor, and contended that he was prevented from working due to diabetes (which was not service-connected), ankle, and knee disabilities. The Board notes that the Veteran was service connected for a right knee disability but not for the left knee. In a written statement dated in December 2009, the Veteran indicated that he was unemployable due to both feet, both ankles, both knees, ulcers, diabetes, high blood pressure, and stress. The Veteran was not service connected for high blood pressure or for stress. Social Security records reflect that the Veteran was in receipt of Social Security benefits from December 2008 based having turned age 65 (he had been eligible for reduced Social Security benefits based on age of 62 since 2004). The Social Security records do not indicate that the Veteran was receiving disability compensation or that Social Security had found him to be unemployable. VA examinations for gastritis in August 2007 and August 2008 and a report of a VA examination dated in March 2008 did not explicitly address the impact of the Veteran's service-connected disabilities on his employability. An October 2008 VA examination concluded that the effect of the Veteran's ankle disabilities on his usual occupation was negligible because the Veteran was retired; however, the same examination reports also reflect evidence of the Veteran's complaints, impairments, and specific findings regarding the service-connected disabilities that do pertain to unemployability, including occupational impairment. The evidence in favor of the claim includes the Veteran's written statement, dated in November 2009, in which he indicated that he was unable to work due to health problems, including both feet, ankles, and his knees. Other evidence in favor of the claim includes a September 2009 VA examination of the knees. The VA examiner opined that the effect of the Veteran's knee disabilities on his usual occupation was moderate to severe, as he experienced difficulty with prolonged ambulation, standing, bending, kneeling, crouching, and performing arduous physical activities. A written statement from a VA physician, B.C., dated in May 2009, weighs both for and against the claim. In that statement, the VA physician indicated that the Veteran was diagnosed with diabetes, hypertension, peptic ulcer disease, cardiomyopathy, arthritis, and renal failure. The VA physician indicated that the Veteran was treated for a right knee effusion in service. The VA physician opined that, given the Veteran's age and co-morbidities, the Veteran was unemployable. A statement from a VA physician, dated in August 2010, indicated that the Veteran was unemployable due to service-connected injuries of his feet, ankles, right knee, and peptic ulcer disease. The August 2010 opinion favors the claim, as it indicated that the Veteran was unemployable solely due to his service-connected disabilities. The evidence against the claim includes a report of a December 2010 VA examination. The December 2010 VA examination reflects that a physician diagnosed osteoarthritis of the right knee, osteoarthritis of the ankles, degenerative arthritis, pes planus, and hallux valgus of the left and right foot, and gastritis. The December 2010 VA examiner opined that the Veteran was unable to perform any physically strenuous activity due to the condition of his feet, ankles, and knees. The VA examiner opined that the Veteran could perform sedentary activities. The evidence of record is at least in equipoise on the question of whether the Veteran's service-connected disabilities of the feet, ankles, and right knee rendered him unable to perform anything but sedentary work. In this case, some of the medical opinions that are of record considered the impact of the Veteran's non-service-related disorders or factors of diabetes mellitus, hypertension, age, cardiomyopathy, and renal failure on his ability to perform a substantially gainful occupation. The May 2009 opinion by the VA physician cited both service-connected disabilities and non-service-connected disabilities as factors in the Veteran's unemployability. The Board notes that the Veteran was not service connected for diabetes mellitus, hypertension, cardiomyopathy, or renal failure, and service connection for those disabilities is not being granted in this decision. The opinion indicated that the Veteran's unemployability was, in part, related to his age. In determining whether a TDIU is warranted, the Veteran's age and nonservice-connected disabilities may not be considered. The Board must consider the Veteran's training and experience. In his claim for a TDIU, the Veteran reported that his last employment was in 1994 as a board and care proprietor. The Veteran did not report any other type of employment. The Veteran reported that he had a college education. The Veteran did not report any other specific education or training. He reported that he had not had any training since he became too disabled to work. The evidence in this case shows that the Veteran's service-connected disabilities preclude the type of employment for which he was trained and for which he had experience. The Board emphasizes that the test is not whether the Veteran would have been precluded from all types of employment, such as sedentary employment, but whether such employment was realistically within the physical and mental capabilities of the claimant. The Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment. The evidence is in equipoise as to whether the Veteran was unable to perform physically demanding work due to his service-connected disabilities. Accordingly, resolving all reasonable doubt in the appellant's favor, the Board finds that TDIU is warranted under 38 C.F.R. § 4.16(a) for the period from January 24, 2008. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Extraschedular Considerations In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2012). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. In this case, the Board finds that the schedular rating criteria contemplate the Veteran's bilateral ankle disabilities and gastritis. The schedular rating criteria for ankle disabilities specifically provide for and contemplate ratings based on limitation of motion (Diagnostic Code 5271), including motion limited due to orthopedic factors such as pain, guarding of movement, and fatigability (38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca). In this case, comparing the Veteran's disability level and symptomatology of the ankles to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned rating is, therefore, adequate. The schedular rating criteria pertaining to gastritis are adequate to rate gastritis. The schedular criteria contemplate symptoms and manifestations such as nodular lesions, multiple small eroded or ulcerated areas, and severe hemorrhages or large ulcerated or eroded areas. In the absence of exceptional factors associated with the bilateral ankle disabilities and gastritis, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A higher initial rating of 20 percent rating for osteoarthritis of the left ankle, for the period prior to October 23, 2008, for accrued benefits purposes, is granted; a rating in excess of 20 percent for any period, for accrued benefits purposes, is denied. A higher initial rating of 20 percent rating for osteoarthritis of the right ankle, for the period prior to October 23, 2008, for accrued benefits purposes, is granted; a rating in excess of 20 percent for any period, for accrued benefits purposes, is denied. An earlier effective date prior to January 24, 2008 for service connection of bilateral ankle disabilities, for accrued benefits purposes, is denied. New and material evidence not having been received, the appeal to reopen service connection for diabetes mellitus, for accrued benefits purposes, is denied. A higher initial disability rating for service-connected gastritis, in excess of 10 percent prior to September 12, 2008, and in excess of 30 percent from September 12, 2008, for accrued benefits purposes, is denied. A TDIU, for accrued benefits purposes, is granted. REMAND During his life, the Veteran claimed service connection for a left knee disability, to include as secondary to service-connected ankle and foot disabilities. The medical evidence of record does not address the issue of a relationship, if any, between a left knee disability and the service-connected ankle and foot disabilities. The Board finds that a medical opinion is warranted in order to determine whether a left knee disability was causally related to the service-connected bilateral ankle disabilities and bilateral foot disabilities. The claim for service connection for a left knee disability affects the overall combined disability rating and is, therefore, intertwined with the issue of a higher combined rating. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (claims are inextricably intertwined if one claim could have a significant impact on the other). Accordingly, the claims for service connection for a left knee disability and for a higher combined evaluation are REMANDED for the following action: Accordingly, the case is REMANDED for the following action: 1. Forward the claims file to an appropriate examiner with expertise to provide a medical opinion regarding the etiology of a left knee disability. The physician should review the claims file and provide the following opinions: a) Is it as likely as not that the Veteran's left knee disability was caused by service-connected bilateral foot and ankle disabilities? b) Is it as likely as not that the Veteran's left knee disability was aggravated (permanently worsened in severity beyond a normal progression) by service-connected bilateral foot and ankle disabilities? The examiner should provide a rationale for the opinions provided. If an opinion cannot be provided without resort to speculation, the examiner should state why an opinion cannot be provided. 4. Readjudicate the remanded claims for service connection for a left knee disability, for accrued benefits purposes, and entitlement to a combined evaluation higher than 70 percent prior to January 24, 2008, for accrued benefits purposes. If any benefit sought on appeal is not granted, the appellant and her representative should be provided a supplemental statement of the case and an appropriate time period for response. The case should then be returned to the Board for further consideration, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claims 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. 2012). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs