Citation Nr: 1322537 Decision Date: 07/15/13 Archive Date: 07/24/13 DOCKET NO. 05-39 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to compensation under the provisions of 38 U.S.C.A. § 1151, as an accrued benefit, for injuries sustained as a result of a door malfunction on June 11, 2003, at the Department of Veterans Affairs Medical Center in Mountain Home, Tennessee. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty in the military from June 1962 to August 1965. He died in May 2009. The appellant is his surviving spouse and the substituted party in light of his death for purposes of prosecuting his claim to completion. During his lifetime, he had filed a claim of entitlement to § 1151 compensation for musculoskeletal injuries he alleged were from a door malfunctioning at the Department of Veterans Affairs Medical Center (VAMC) in Mountain Home, Tennessee. The local Regional Office (RO) denied his claim in November 2004, and he appealed to the Board of Veterans' Appeals (Board/BVA). In March 2008, as support for his claim, he testified at a hearing at the Board's offices in Washington, DC, before the undersigned Veterans Law Judge (Central Office (CO) hearing). The Board subsequently issued a decision in September 2008 in effect denying the claim as a matter of law, since even though he was hospitalized at a VA medical facility at the time of the June 11, 2003 incident in question, the claimed injuries did not result from VA treatment, itself, but rather from an incident that was merely coincident with that treatment. After his death in May 2009 and the appellant resultantly being instated in his place for the purpose of prosecuting his claim to completion, she appealed the Board's decision to the U. S. Court of Appeals for Veterans Claims (Court/CAVC). In a December 2011 Memorandum decision, the Court set aside the Board's decision and remanded the claim to the Board for further development and readjudication. The Board, in turn, remanded the claim to the RO via the Appeals Management Center (AMC) in July 2012 for the necessary additional development. The additional development since has been completed, and the claim is again before the Board. FINDINGS OF FACT 1. At the time of the June 11, 2003 incident in question, the Veteran was receiving inpatient psychiatric care at a VA hospital. 2. He was bound to an electric wheelchair. 3. He was traversing the hospital for personal reasons, and not for the purpose of treatment. 4. The door to his psychiatric unit was locked, but he was free to leave the unit unescorted and traverse the hospital without supervision. 5. The harm of a door-related injury was not a foreseeable risk in the inpatient psychiatric unit. CONCLUSION OF LAW The requirements are not met for § 1151 compensation for the claimed injuries. 38 U.S.C.A. § 1151 (West 2002 and Supp. 2012); 38 C.F.R. § 3.361 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of (1) the information and evidence not of record that is necessary to substantiate the claim, including apprising the claimant of (2) the information and evidence that VA will obtain and assist in obtaining versus (3) of the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). See also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Ideally, this notice also should inform the claimant that a "downstream" disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the underlying claim for service connection. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). This particular claim at hand is not for service connection, but if it is determined the Veteran's alleged disabilities entitle him to VA compensation under the provisions of 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.361, then for all intents and purposes his disabilities are treated as though they are service-connected disabilities. So in this respect a claim for § 1151 compensation is akin to a claim of entitlement to service connection. As well, ideally, the notice should be provided prior to initially adjudicating the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). However, both the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) and the U. S. Court of Appeals for Veterans Claims (Court) have clarified that, even if VCAA notice is not provided before initially adjudicating a claim or, if provided, was inadequate or incomplete, this timing error in the provision of this notice can be rectified ("cured") by providing the required notice and then readjudicating the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated, rather preserved, and the Veteran is given ample opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). The U. S. Supreme Court has made clear that VCAA notice errors, even when shown to have occurred, are not presumptively prejudicial, instead, must be judged on a case-by-case basis, and, as the pleading party attacking the agency's decision, the Veteran has this burden of proof of not only establishing this occurrence of this error but also, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of his claim. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Here, in August 2006, so after the initial adjudication of the Veteran's claim, a letter dated in September 2006 was sent to him in accordance with the duty-to-notify provisions of the VCAA. 38 U.S.C.A. § 5103; 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). He was notified of the evidence that was needed to substantiate his claim, of the information and evidence that VA would obtain, of the information and evidence he was expected to provide, and that VA would assist him in obtaining evidence, but that it was his ultimate responsibility to provide VA with any evidence pertaining to his claim. See Pelegrini, 18 Vet. App. at 120-21. Although the notice provided did not also address the "downstream" disability rating and effective date elements of his claim, that error was harmless given that his claim of entitlement to § 1151 compensation is being denied. Hence, no "downstream" disability rating or effective date will be assigned for his claimed conditions. Moreover, although the notice was provided in August 2006 after the initial adjudication of his claim in November 2004, the RO since has provided him an SOC in August 2007, so the claim was readjudicated after the notice was provided. That readjudication in the SOC rectified ("cured") the timing error in the provision of the notice. See Mayfield and Prickett, supra. B. Duty to Assist VA also has an obligation to assist the claimant in fully developing the claim, including by obtaining all potentially relevant records and scheduling a VA examination or obtaining a medical opinion when needed to decide the claim. To this end, the Veteran's service treatment records (STRs), VA treatment records, private treatment records, Social Security Administration (SSA) records, lay statements, and hearing transcript have been associated with the claims file. A VA medical opinion was obtained, as well. 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The claim was remanded in July 2012 to obtain a VA medical opinion and information regarding the operational procedures of the VA facility where the Veteran was treated, and the circumstances surrounding his alleged injuries at this facility. The VA medical opinion obtained is adequate as it is predicated on a review of the claims file, contains a description of the history of the disabilities at issue, documents and considers the relevant medical facts and principles, and addresses the factual and medical questions pertinent to this claim for § 1151 compensation. VA's duty to assist with respect to obtaining a VA examination or opinion for this claim therefore has been met. 38 C.F.R. § 3.159(c)(4). Moreover, the directives of the Board's remand have been satisfied. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Court or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). But see, too, D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (another remand not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). The Veteran also as mentioned testified before the undersigned at a hearing in March 2008. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that may be potentially advantageous to the claimant's position. Here, during the hearing, the presiding VLJ elicited testimony to support the Veteran's claim and sought to identify any potentially pertinent evidence not then currently of record that might tend to substantiate the claim. Moreover, neither the Veteran nor the appellant has asserted or shown that VA failed to comply with 3.103(c)(2) or identified any prejudice in the conducting of the hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant demonstrating an awareness of what is necessary to substantiate a claim). As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) such that the Board may proceed to adjudicating this claim. VA has provided the appellant-widow opportunity to submit evidence and argument in support of the claim. She has not made the Board aware of any additional evidence still needing to be obtained prior to appellate review of this claim, and no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Compensation Under 38 U.S.C.A. § 1151 A. Applicable Law Under 38 U.S.C.A. § 1151, compensation shall be awarded for a qualifying additional disability or a qualifying death of a Veteran in the same manner as if such additional disability or death were service-connected. For purposes of this section, a disability or death is a qualifying additional disability or qualifying death if the disability or death was not the result of the Veteran's willful misconduct and the disability or death was caused by hospital care, medical or surgical treatment, or examination furnished the Veteran under any law administered by the Secretary, either by a Department employee or in a Department facility. In addition, the proximate cause of the disability or death must be either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the Department in furnishing the hospital care, medical or surgical treatment, or examination, or an event not reasonably foreseeable. 38 U.S.C.A. § 1151. In other words, to obtain benefits under 38 U.S.C.A. § 1151(a), a claimant must show (1) a "qualifying additional disability," (2) actually caused by the hospital care, treatment, or examination furnished by VA, and (3) a proximate or direct cause that is either a fault on the part of VA or an event not reasonably foreseeable. Id. Further, effective September 2, 2004, 38 C.F.R. § 3.361 was promulgated for claims filed as of October 1, 1997. Prior to that time, 38 C.F.R. § 3.358 is to be applied. In this case, however, the Veteran's claim was received after October 1, 1997. Thus, 38 C.F.R. § 3.361 is for application (rather than § 3.358). 38 C.F.R. § 3.361(b) states that, to determine whether a Veteran has additional disability, VA compares the Veteran's condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy (CWT) program upon which the claim is based to the Veteran's condition after such care, treatment, examination, services, or program has stopped. VA considers each involved body part or system separately. 38 C.F.R. § 3.361(c) states that claims based on additional disability or death due to hospital care, medical or surgical treatment, or examination must meet the causation requirements of this paragraph and paragraph (d)(1) or (d)(2) of this section. Claims based on additional disability or death due to training and rehabilitation services or compensated work therapy program must meet the causation requirements of paragraph (d)(3) of this section. Actual causation is required. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in a Veteran's additional disability or death. Merely showing that a Veteran received care, treatment, or examination and that the Veteran has an additional disability or died does not establish cause. Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. The provision of training and rehabilitation services or CWT program cannot cause the continuance or natural progress of a disease or injury for which the services were provided. Additional disability or death caused by a Veteran's failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(d) states that the proximate cause of disability or death is the action or event that directly caused the disability or death, as distinguished from a remote contributing cause. To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a Veteran's additional disability or death, it must be shown that the hospital care, medical or surgical treatment, or examination caused a veteran's additional disability or death (as explained in paragraph (c) of this section); and (i) VA failed to exercise the degree of care that would be expected of a reasonable health care provider; or (ii) VA furnished the hospital care, medical or surgical treatment, or examination without the Veteran's or, in appropriate cases, a Veteran's representative's informed consent. To determine whether there was informed consent, VA will consider whether the health care providers substantially complied with the requirements of § 17.32 of this chapter. Whether the proximate cause of a Veteran's additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of § 17.32 of this chapter. 38 C.F.R. § 3.361(e) provides for Department employees and facilities. A Department employee is an individual (i) who is appointed by the Department in the civil service under title 38, United States Code, or title 5, United States Code, as an employee as defined in 5 U.S.C. § 2105; (ii) who is engaged in furnishing hospital care, medical or surgical treatment, or examinations under authority of law; and (iii) whose day-to-day activities are subject to supervision by the Secretary of Veterans Affairs. A Department facility is a facility over which the Secretary of Veterans Affairs has direct jurisdiction. 38 C.F.R. § 3.361(e) explains activities that are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility. The following are not hospital care, medical or surgical treatment, or examination furnished by a Department employee or in a Department facility within the meaning of 38 U.S.C. § 1151(a): (1) hospital care or medical services furnished under a contract made under 38 U.S.C. 1703; (2) nursing home care furnished under 38 U.S.C. § 1720; (3) hospital care or medical services, including examination, provided under 38 U.S.C. § 8153 in a facility over which the Secretary does not have direct jurisdiction. The Court has directed the Board to consider the more recent case of Bartlett v. Shinseki, 24 Vet. App. 328 (2011), which clarified the definition of "hospital care" under 38 U.S.C.A. § 1151. Specifically, the Court indicated that VA's definition of hospital care under 38 U.S.C.A. § 1803 appeared more compatible with 38 U.S.C.A. § 1151's meaning than the definition found in 38 U.S.C.A. § 1701. Under 38 U.S.C.A. § 1701(5), the term "hospital care" includes: (A)(i) medical services rendered in the course of the hospitalization of any Veteran, and (ii) travel and incidental expenses pursuant to the provisions of section 111 of this title;(B) such mental health services, consultation, professional counseling, marriage and family counseling, and training for the members of the immediate family or legal guardian of the veteran . . . as the Secretary considers appropriate for the effective treatment and rehabilitation of a Veteran or dependent or survivor of a veteran receiving care . . . . This definition of "hospital care" is not limited to medical services. However, the enumerated examples of the section include "travel and incidental expenses," "marriage and family counseling, and training for the members of the [Veteran's] immediate family," and other terms inapplicable to 38 U.S.C.A. § 1151. In comparison, 38 U.S.C.A § 1803(c)(4) (addressing care for the children of Vietnam Veterans born with spina bifida), provides a general definition; the term "hospital care" means care and treatment for a disability furnished to an individual who has been admitted to a hospital as a patient. Further, the definition of section 1803(c)(4) was introduced and passed in the same bill that added "hospital care" to section 1151, which, the Court noted, may provide an indication of Congress's intent in using those words. The Court went on to state that, at a minimum, "hospital care" includes the provision of services unique to the hospitalization of patients. See Jackson v. Nicholson, 433 F.3d, 822, 826 (Fed. Cir. 2005) ("The term 'hospital care' implies the provision of care by the hospital specifically . . . ."). The Court also specified that whether a situation involves "hospital care" will depend on a variety of factors, including: (1) the nature of the services, (2) the degree of VA control over patient freedom, (3) the mental and physical conditions of the patient, and (4) the foreseeability of potential harms. With regards to the first factor, the Court referred in a notation to a situation where there is a heightened duty of care to patients because of their vulnerability. See Bodin v. Vagshenian, 462 F.3d 481, 489 (5th Cir. 2006). With regards to the second factor, it was noted that the hospital has a duty to protect a patient from dangers peculiarly within the hospital's control as well as a hospital's duty to safeguard the welfare of its patients as measured by the capacity of the patient to provide for his or her own safety. See Galloway v. Baton Rouge Gen. Hosp., 602 So. 2d 1003 (La. 1992) and N.X. v. Cabrini Med Ctr., 97 N.Y. 2d 252, 253 (N.Y. 2002). With regards to the third factor, it was noted that a hospital owes a duty to its patients to exercise such reasonable care for their safety as their known mental and physicals conditions may require. See Johnson v. Grant Hosp., 291 N.E. 2d 440, 446 (Ohio 1972) and Hunt v. Bogalusa Cnty. Med. Ctr. 303 So. 2d 745, 747 (La. 1974). Regarding the fourth factor, while a hospital does not have a duty to keep each patient under constant surveillance, it does have a duty to guard against reasonably foreseeable harms. See Cabrini Med Ctr.,97 N.Y. 2d at 253. B. Evidence This claim is predicated on the notion that the Veteran injured his shoulders, elbows, ankles, knees, and deltoid when traveling in his electronic wheelchair through an automated door at the VAMC in Mountain Home, Tennessee, on June 11, 2003. At the time, he was under psychiatric hospitalization by VA. A contemporaneous Incident Report indicated he had difficulty entering through a door and suffered abrasions to both knees/shins. But physical examination revealed no swelling, warmth, or significant erythema. The injuries had scabbed over. He alleged the injuries had stirred up his multiple sclerosis (MS) pain, but the examiner noted that, otherwise, there was no complaint. However, in his subsequent August 2003 VA Form 21-526 and additional written correspondence, the Veteran indicated he also had suffered injuries to other areas, including his right shoulder. He indicated that, while he was hospitalized as an inpatient at the VA facility, he needed to go through an electronic door that required patients to be "buzzed in." He said that, after he was buzzed in, the door opened and he began to travel through the entry. But the door began closing on him and he became trapped. He related that another patient came to his aid, but he was already injured. He stated that he reported to the nurses what had happened and his knee injuries were treated. After he was discharged and sent home, he stated that he realized that he had other injuries as well. In VA medical records dated after the event, from October 2003 onwards, he reported the door injury as a twisting-type injury, particularly involving his right shoulder and left knee. During his March 2008 hearing before the Board, the Veteran again provided details regarding the hospitalization and accident. He related that he had been hospitalized at the VA facility for depression. He said that the patients were usually escorted because it was a psychiatric ward, but for people like himself, who were responsible, he was allowed to come and go (presumably through the hospital) as he pleased. He indicated that he was wheelchair-bound in an electronic wheelchair. The day before he was scheduled to leave, he was going through an electronic entrance bi-fold door to Ward A-2. He said that he pushed the button to open the door and then the door was activated by the nurses' station. He was partially through the door when it closed on his wheelchair, turning him around and rupturing his right scapula which previously had been injured. He related that he did not know he had that injury then, but was rather concerned with the blood pouring out of his leg. He added that, thereafter, a witness spoke to him, but won't testify because he is a VA employee. He gave the orderly's name. He stated that he was told that the nurse saw that the "door button" was open and pushed it again, while he was stuck in the door. When she did that, he said that he was pressed harder against the fixed door. Then the nurse opened the door again which caught his wrist and left arm. He stated that, if not for this nurse's negligent actions, he would not have been injured. He explained that, when the patient pushes the button, the nurse is supposed to come up to the door, push the buzzer, open it, and let the patient come through, and then close it. However, this nurse was apparently playing a computer game and never came to the door. A male nurse finally helped him get free. In order to obtain a complete picture regarding the circumstances of the Veteran's inpatient treatment and especially the incident in question, the Board requested additional information from the VAMC. That information was provided in April 2013 by the Assistant Chief of the Psychiatry Unit. She reviewed the claims file, including the medical records and incident report contained therein, and consulted with the Engineering Chief from the James H. Quillen VAMC. She observed the Veteran was admitted to the inpatient psychiatry unit on June 9, 2003 for depression and suicidal ideation. He was treated for his depression and released on June 12. The outer door of the inpatient psychiatry unit was locked. However, patients were given increasing privileges to go off the unit based upon how they were doing clinically. On admission, the Veteran was checked every hour and allowed to leave the unit with a "buddy." On June 11, the particular day at issue, he was allowed to leave unescorted. She further noted that he was permitted to traverse the hospital unsupervised while under psychiatric care. She was unable to comment on the normal operating procedures for patients using the doors entering Ward A-2, as the policies from June 2003 were not available. However, she stated that her review did not reveal that the doors were operated with any carelessness, lack of proper skill, or negligence. In order to unlock the door, a button had to be pushed at the nurses' station. The doors did not operate on their own power. The Veteran's description of the doors closing on him multiple times is not consistent with the actual operation of the doors. Once the button is pushed, the person entering the unit would need to push the door open to enter. Use of the button at the nurses' station could not have caused movement of the doors in either direction. She concluded by stating that she saw no evidence that this event was foreseeable. There were no other incident reports related to problems with the doors on the unit, and there is no mention of a problem with the doors in the chart. Door injury is not an ordinary risk of treatment on an inpatient psychiatry unit, and a reasonable health care provider would not have disclosed it. C. Analysis As already alluded to, in setting aside the Board's prior decision denying this claim, the Court laid out four factors that determine whether a situation involved "hospital care." The first factor is the nature of the services provided. In this case, the Veteran was receiving inpatient psychiatric care. Citing Bodin, the Court noted in Bartlett that a provider of psychological services has a heightened duty of care to its patients because of their vulnerability and the resulting special relationship. Here, though, the Veteran testified that he was allowed to come and go as he pleased, at least eventually after evidencing a level of personal responsibility that would not put his or anyone else's health in danger if unattended. He was exiting the psychiatric unit at the time of the incident. It does not appear that he was being transported for the purpose of treatment, but simply traversing the hospital for his personal reasons. Therefore, this factor weighs against finding that the incident involved hospital care. The second factor is the degree of VA control over patient freedom. In this case, on the day of the incident in question, the doors of the inpatient psychiatric unit were locked, but the Veteran was permitted to leave the unit unescorted and traverse the hospital without supervision. This, too, weighs against a finding that the incident involved hospital care. The third factor is the mental and physical conditions of the patient. In this case, the Veteran was treated for depression, but there is no indication that his cognitive abilities were impaired such that he would have difficulty ambulating or completing basic tasks. However, he was bound to an electric wheelchair at the time of the incident, and the record shows he had MS. Therefore, this factor supports a finding of hospital care. The fourth factor is the foreseeability of the harm, which in this case was injury from the doors to the psychiatric unit. As pointed out in the April 2013 opinion, there was no evidence that the harm in this case was foreseeable, as there were no reports of any door problems prior to the incident, and door injuries are not a normal risk associated with inpatient psychiatric treatment. Therefore, this factor weighs against finding that the incident involved hospital care. After weighing each of the four factors, and viewing the circumstances of the situation in their entirety, the Board finds that the June 11, 2003 incident was not the result of hospital care furnished by VA. The Veteran was wheelchair-bound at the time, but VA exercised little control over his freedoms; he was not ambulating for treatment purposes at the time of the incident, and the harm was not foreseeable such that the VAMC had a duty to guard against it. Therefore, any alleged injury sustained as a result of the incident was not the result of hospital care furnished by the VAMC, and the appellant-widow's derivative claim resultantly must be denied. ORDER The claim for § 1151 compensation for injuries sustained as a result of a door malfunctioning at a VA hospital is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs