Citation Nr: 1329943	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  10-28 819	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Nashville, Tennessee

THE ISSUES

1. Entitlement to service connection for Type II Diabetes Mellitus, including as due to Agent Orange exposure and, pursuant to 38 U.S.C.A. § 1151, as a result of chemotherapy provided at the Mountain Home VA Medical Center (VAMC) in Johnson City, Tennessee.

2. Entitlement to service connection for peripheral neuropathy of the feet (claimed as weakness and numbness), also alleged to be due to Agent Orange exposure or, pursuant to 38 U.S.C.A. § 1151, due to chemotherapy provided at the Mountain Home VAMC.

3. Entitlement to service connection for peripheral neuropathy of the hands (also claimed as weakness and numbness), as well alleged to be due to Agent Orange exposure or, pursuant to 38 U.S.C.A. § 1151, chemotherapy provided at the Mountain Home VAMC.



REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


ATTORNEY FOR THE BOARD

Jason A. Lyons, Counsel


INTRODUCTION

The Veteran served on active duty from September 1964 to September 1968.

He appealed to the Board of Veterans' Appeals (Board/BVA) from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee - which, in pertinent part, denied his claims of entitlement to service connection for Type II Diabetes Mellitus and numbness and weakness of his hands and feet alleged to be the result of exposure to Agent Orange during his service.

In December 2012 the Board remanded the claims to the RO via the Appeals Management Center (AMC) in Washington, DC, in the process expanding the claims to include a new theory of entitlement under 38 U.S.C.A. § 1151, which is the statute for claims predicated on faulty or negligent VA medical care.  In particular, the Veteran had cited chemotherapy for a malignant neoplasm of his pharynx at the Mountain Home VAMC in Johnson City, Tennessee, as a possible alternative reason for his diabetes and upper and lower extremity peripheral neuropathy.

After completing the requested additional development, the AMC issued a Supplemental Statement of the Case (SSOC) in June 2013 continuing to deny the claims on all alleged bases, so the claims are again before the Board.

In July 2013 there was a Congressional inquiry and submission of additional evidence consisting of unit history records and a statement from the Veteran's private dentist T.H.D., DDS.  However, as this evidence is essentially cumulative of evidence that was already on file, it is accepted into the record without initial requirement for review by the RO as the Agency of Original Jurisdiction (AOJ).  See 38 C.F.R. § 20.1304 (2013).

And to the extent the statement from the private dentist alleges additional entitlement to service connection for a dental condition (e.g., perpetual dry mouth and consequent tooth decay/caries/cavities, etc.) secondary to the chemotherapy at issue for the throat cancer, this additional claim is referred to the RO for consideration in the first instance.  The Board does not at the moment have jurisdiction to consider this additional claim.  The U. S. Court of Appeals for Veterans' Claims (Court/CAVC) has clarified the meaning of the terms frequently used to determine the scope of a claim properly on appeal before the Board.  Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011).  A "claim" seeks entitlement to a benefit, a "theory" is a means of establishing entitlement to the benefit sought, and a "matter" is the entire subject under consideration.  Id.   All theories pertaining to the same benefit for the same disability are part of the same claim.  Id.; but see Jarrell v. Nicholson, 20 Vet. App. 326, 332 (2006) (distinguishing requests for revision of a decision on the grounds of clear and unmistakable error (CUE) under 38 U.S.C.A. § 5109(a) (West 2002)).  As the meaning of the term encompasses the entire subject under consideration by the adjudicatory body, the scope of the matter may be different at different stages of adjudication.  Hillyard, 24 Vet. App. at 355.

Accordingly, the Board has jurisdiction to adjudicate the merits of different theories, or questions, on a single matter because the Veteran's appeal properly brings all means of establishing entitlement to the benefit sought before the Board.  Godfrey v. Brown, 7 Vet. App. 398, 409 (1995); see also Hillyard, 24 Vet. App. at 355.  However, a Notice of Disagreement (NOD) and Substantive Appeal (VA Form 9 or equivalent statement) filed by the Veteran cannot confer jurisdiction on the Board to review a claim that is wholly separate and distinct from the claim presented to and adjudicated by the RO.  Jarrell, 20 Vet. App. at 332; Godfrey, 7 Vet. App. at 409.

As an example, with regard to claims for benefits for psychiatric disorders, 38 C.F.R. § 4.125(b) cautions that a change in the diagnosis of a mental disorder may represent a progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition.  Accordingly, in Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009), the Court found that the scope of a claim for posttraumatic stress disorder (PTSD) benefits included other diagnosed mental disorders as a Veteran does not file a claim to receive benefits for a particular diagnosis, but for the affliction suffered.  Consequently, a single claim for disability compensation can encompass more than one condition.  Id.; see also Young v. Shinseki, 25 Vet. App. 201, 202 (2012) (holding that the scope of a PTSD claim encompassed a claim for benefits for a generalized anxiety disorder (GAD) where the evidence developed during the processing of the claim indicated the symptoms alleged were caused by the GAD and not PTSD).

The Court explained that treating separate diagnoses as separate claims where separate diagnoses are rendered for the same reported symptoms during the initial processing of a claim for benefits disadvantage the Veteran by unnecessarily multiplying the procedural requirements involved in filing, developing, and adjudicating a claim, as well as risking an erroneous assignment of a later effective date.  Clemons, 23 Vet. App. at 8; but see Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008) (treating separate diagnoses as separate claims in the context of a petition to reopen a previously denied claim).  Critically, there would be a significant risk that "the nature of the appellant's current condition may never be properly adjudicated by the Secretary," as piecemeal adjudication of separate diagnoses that may relate to same disability may not properly account for the possibility that "multiple diagnoses may represent subjective differences of opinions of examiners, rather than multiple conditions."  Id., at 8-9 (also explaining that this holding does apply where the original diagnosis was the subject of a final rating decision that pre-dated the new diagnosis); see also Ephraim v. Brown, 82 F.3d 399, 401-02 (Fed. Cir. 1996) (holding that a claim for service connection for PTSD was separate from an appeal of a rating reduction for depressive neuroses where PTSD was not diagnosed prior to the date the rating issue was brought within the Court's jurisdiction by the filing of the NOD).

In adjudicating these claims the Board must consider all potential bases of entitlement, hence, the reason the Board is recognizing two alleged bases of entitlement - the notion the diabetes and neuropathy are the result of exposure to Agent Orange during the Veteran's service and the additional allegation he is entitled to § 1151 compensation for the medical care, including especially the radiation and chemotherapy treatments, he received at the Mountain Home VAMC.  See Szemraj v. Principi, 357 F.3d 1370, 1371 (Fed. Cir. 2004).  VA has a duty to address all arguments put forth by a claimant and/or theories under which entitlement to benefits sought may be awarded.  See Robinson v. Peake, 21 Vet. App. 545, 552 (2008) (noting that the Board is required to consider all issues raised either by the claimant or reasonably by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); Buckley v. West, 12 Vet. App. 76, 83 (1998) (noting that where the RO and the Board have failed to address an argument reasonably raised by a claimant in support of a claim over which the Court (CAVC) has jurisdiction by virtue of an NOD satisfying Veterans Judicial Review Act (VJRA) § 402, the Court will remand the claim with directions that the Board address the particular argument(s) in support thereof).  This includes the duty to address arguments a Veteran has specifically made as it relates to the adequacy of any given VA examination.

Here, though, for the reasons and bases already discussed, the Board only has jurisdiction to consider whether the Veteran has diabetes and upper and lower extremity peripheral neuropathy on account of his military service or the treatment he received at the Mountain Home VAMC, not also whether he has any consequent dental condition.  The RO, not the Board, has to make this initial determination.



FINDINGS OF FACT

1. The Veteran did not have service within either the territorial landmass or the inland waterways of the Republic of Vietnam during the Vietnam era, or elsewhere where Agent Orange was otherwise used or sprayed, so there is no presumption of exposure to this toxin during his military service.

2. There equally is no other competent evidence otherwise etiologically linking his diagnosed Type II Diabetes Mellitus with any incident of his military service, and his diabetes preceded his VA treatment at issue.

3. His upper and lower extremity peripheral neuropathy similarly cannot be presumptively associated with his military service, absent underlying Agent Orange exposure or other precipitating circumstances.

4. Moreover, the eventual development of peripheral neuropathy following a course of chemotherapy treatment did not result from faulty, negligent, or otherwise deficient VA medical care and was a reasonably foreseeable complication, not instead an unforeseeable event.  He also gave his informed consent.


CONCLUSION OF LAW

The criteria are not met to establish entitlement to service connection for Type II Diabetes Mellitus and upper and lower extremity peripheral neuropathy, either on the basis these conditions were directly or presumptively incurred in service, including the result of exposure to Agent Orange, or alternatively are from the chemotherapy and other treatments provided at the Mountain Home VAMC.  38 U.S.C.A. §§ 1110, 1116, 1131, 1151, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.361 (2013).



REASONS AND BASES FOR FINDINGS AND CONCLUSION

VA's Duties to Notify and Assist the Claimant

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103A, 5107, 5126 (West 2002 & Supp. 2013), prescribes several requirements as to VA's duties to notify and assist a claimant with the evidentiary development of a pending claim for compensation or other benefits.  Implementing regulations were codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326 (2013).

VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must, upon receipt of a complete or substantially complete application for benefits, inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is expected to provide; and (3) that VA will obtain on his behalf.  See also Quartuccio v. Principi, 16 Vet. App. 183 (2002).  A regulatory amendment effective for claims pending as of or filed after May 30, 2008, removed the so-called "fourth" requirement that VA also specifically request that he provide any evidence in his possession pertaining to the claim.  73 Fed. Reg. 23,353-56 (Apr. 30, 2008), codified later at 38 C.F.R. 3.159(b)(1).

The Court (CAVC) further held in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), that these VCAA 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:  1) Veteran status, 2) existence of a disability, 3) a connection between the disability and military service, but also concerning the "downstream" 4) disability rating and 5) effective date for the award if service connection is granted.  A claim for § 1151 compensation is akin to a claim for service connection in that, if compensation is awarded under § 1151 for consequent disability, it is for all intents and purposes treated as if it is due to the Veteran's military service, so a de facto 
service-connected disability.

Through VCAA notice correspondence dated in August 2009 and April 2010, the RO notified the Veteran as to each element of satisfactory notice set forth under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  The VCAA notice further indicated the joint obligation between VA and him in obtaining pertinent evidence and information, explaining that VA would undertake reasonable measures to assist in obtaining additional VA medical records, private treatment records and other Federal records.  See Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  The notice correspondence further provided explanation of the "downstream" initial disability rating and effective date elements of a claim for service connection.

Ideally, VCAA notice should precede the initial adjudication of a claim.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  See also 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).  And in this particular instance, the August 2009 VCAA notice letter did just that since the RO sent it prior to first adjudicating these claims in the December 2009 rating decision that prompted this appeal, so in the preferred sequence.  However, the April 2010 VCAA correspondence did not precede the initial adjudication of the claim.

This notwithstanding, the Veteran had opportunity to respond to the April 2010 correspondence before the readjudication of his claims in the June 2010 Statement of the Case (SOC) and before another readjudication of them and issuance of the June 2013 Supplemental SOC (SSOC) continuing their denial.  This is important to point out because if, for whatever reason, VCAA notice was not provided prior to the initial adjudication of a claim or, if provided, the notice was inadequate or incomplete, this timing error can be effectively rectified ("cured") by providing any necessary VCAA notice and then going back and readjudicating the claim - including in an SOC or SSOC - such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 19 Vet. App. 103, 128 (2005), affirmed, 499 F.3d 1317 (Fed. Cir. 2007).  See also 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, rather, must be judged on a case-by-case basis.  And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).  See also 38 C.F.R. § 20.1102.  Here, there has not been any such pleading or allegation, much less showing.

The RO/AMC furthermore has taken appropriate steps to comply with the duty to assist the Veteran with these claims by obtaining records of his VA outpatient treatment.  His complete service treatment records (STRs) and military personnel file also are of record.  As well, as a result of the Board remanding these claims in December 2012, VA medical opinion has been obtained on the determinative issue of whether the Veteran has developed diabetes and peripheral neuropathy of his upper and lower extremities as a result or consequence of his VA medical treatment in question so as to in turn warrant compensation under the provisions of 38 U.S.C.A. § 1151.

The Board also has considered the request set forth in the inquiry from the office of the Veteran's Congressman.  At one point, the correspondence from this office requests the Board's consideration of also arranging a VA Compensation and Pension examination for a medical nexus opinion concerning whether the claimed Type II Diabetes Mellitus and/or upper and lower extremity peripheral neuropathy originated from exposure to Agent Orange during the Veteran's military service.  But upon review of this request, and with all due consideration of the merits of the Veteran's claim to this point, the Board finds that such an examination is not required under applicable law.  38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4).  Aside from being a presumptive condition specified in 38 C.F.R. § 3.309(a) that will be presumed to have been incurred in service if manifested to the required minimum compensable degree of at least 10-percent disabling within one year after service, diabetes mellitus also is a condition that is subject to presumptive service connection under 38 C.F.R. § 3.309(e) based on herbicide exposure.  And provided this exposure is established, this condition would be amenable to presumptive service connection without even a medical examination to establish causation due to service.  However, as discussed below, there is no competent and credible suggestion of exposure to Agent Orange during the Veteran's service and, therefore, no basis for presumptive service connection under this VA regulation.  Likewise, without indication of underlying Agent Orange exposure, there is no basis upon which to request a VA examination and medical opinion as to whether the Veteran's chronic peripheral neuropathy (as opposed to the "early-onset" variety, for which presumptive service connection is otherwise available) is etiologically related to herbicide exposure.  Nor is there any other plausible basis in the record upon which to conclude that either the diabetes mellitus or peripheral neuropathy may be related to an incident of his military service.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); Charles v. Principi, 16 Vet. App. 370 (2002); and Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010).

Although he has a diagnosis of diabetes mellitus and upper and lower extremity peripheral neuropathy, so confirmation he has these claimed conditions, the evidence indicates he was not exposed to herbicides (Agent Orange) during his military service.  That claimed precipitating event, since not shown to actually have occurred, thus cannot be the reason he now has these conditions.  There simply is no competent and credible evidence indicating there is a nexus or etiological link between his military service - especially his claimed exposure to Agent Orange since not shown to have occurred - and these eventual diagnoses, which did not happen until many years after his service had ended, indeed, well beyond even the one-year presumptive period following the conclusion of his service otherwise allowing for the presumption the diabetes was incurred during his service.  Type II Diabetes Mellitus is subject to two presumptions, the one provided by 38 C.F.R. § 3.309(a) and the other by § 3.309(e).  But there is not the required evidence concerning either to warrant the scheduling of a VA compensation examination for a medical opinion.  His mere belief that this condition and his associated upper and lower extremity peripheral neuropathy are the result of herbicide exposure is insufficient to trigger the duty to assist by arranging for a VA compensation examination and opinion, as this would circumvent the craftily tailored language of the statutes and regulations governing when examinations and opinions should be obtained and require that VA provide an examination and opinion in virtually every case.  VA is not required to schedule an examination for a medical opinion merely as a matter of course.  See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (indicating that, generally, VA is not obligated to provide an examination for a medical nexus opinion based on unsubstantiated lay statements alone).

Meanwhile, in furtherance of his claims, the Veteran has provided copies of unit history records, correspondence from a private treating dentist, and several personal lay statements.  He has not requested a hearing in connection with this matter.  There is no indication otherwise of any further relevant evidence or information that has not yet been obtained.  The record as it stands includes sufficient competent evidence to decide the claims.  Under these circumstances, no further action is necessary to assist him with these claims.

In sum, the record reflects that the facts pertinent to the claims have been properly developed and that no further development is required to comply with the provisions of the VCAA or the implementing regulations.  That is to say, the record has been fully developed, and it is difficult to discern what additional guidance VA could provide the Veteran regarding what further evidence he should submit to substantiate his claims.  Conway v. Principi, 353 F. 3d. 1369 (Fed. Cir. 2004).  

The additional development of these claims directed by the Board's December 2012 remand was completed.  See Stegall v. West, 11 Vet. App. 268, 271 (1998) (A Veteran is entitled to compliance with remand directives, and the Board itself commits error as a matter of law in failing to ensure compliance).  But see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); and Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (indicating situations when it is acceptable to have "substantial", even if not "exact" or "total", compliance with remand directives).


Accordingly, the Board will proceed to adjudicating these claims on their underlying merits.  See Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances when a remand would not serve any useful or meaningful purpose and not result in any significant benefit to the Veteran).  This is especially true when, as here, the claims already were remanded in December 2012.

Governing Statutes, Regulations and Case Law

Service connection is granted for current disability resulting from a disease contracted or an injury sustained in the line of duty during active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection may be granted for a disease diagnosed after discharge, when the evidence, including that pertinent to service, establishes the disease was incurred in service.  38 C.F.R. § 3.303(d).

Service connection on a direct-incurrence basis requires competent and credible evidence showing:  (1) the Veteran has the alleged disability or, at the very least, indicating he has at some point since the filing of his claim; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Certain conditions are considered chronic (i.e., permanent), per se, and therefore will be presumed to have been incurred in service if manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year after the Veteran's discharge from service.  This presumption, however, is rebuttable by affirmative evidence to the contrary.  38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a).


Also of application to claims for direct service connection is the principle that where a chronic disease is shown during service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.  On the other hand, continuity of symptomatology is required where the condition noted during service is not shown to be chronic, or where the diagnosis of chronicity may be legitimately questioned.  In this circumstance, a showing of continuity of symptomatology since service is required establish chronicity of disease or injury in service and in turn link current disability to service.  38 C.F.R. § 3.303(b).  However, the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court) since has clarified in Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013), that this notion of continuity of symptomatology is limited to where involving those specific diseases denoted as "chronic" (and for which presumptive service connection is otherwise available) under 38 C.F.R. § 3.309(a).

The law further provides that a Veteran who served in the Republic of Vietnam during the Vietnam era shall be presumed to have been exposed during such service to an herbicide agent (i.e., Agent Orange).  38 U.S.C.A. § 1116; 38 C.F.R. § 3.307(a)(6)(iii).  Service in the Republic of Vietnam means actual service 
in country in Vietnam from January 9, 1962 through May 7, 1975, and includes service in the waters offshore, or service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.  38 C.F.R. §§ 3.307(a)(6)(iii), 3.313(a).

VA's Office of General Counsel has held that service on a deep-water naval vessel off the shores of Vietnam without proof of actual duty or visitation in the Republic of Vietnam may not be considered service in the Republic of Vietnam for purposes of 38 U.S.C.A. § 101(29)(A), which defines the Vietnam era as the period beginning on February 28, 1961, and ending on May 7, 1975; and that this was not inconsistent with the definition of service in the Republic of Vietnam found in 38 C.F.R. § 3.307(a)(6)(iii).  VAOPGCPREC 27-97 (July 23, 1997).  See also Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008) (upholding the interpretation of governing law that service in the offshore waters of Vietnam without temporary duty or visitation on land, even where the claimant was the recipient of the Vietnam Service Medal (VSM), was insufficient to warrant application of the presumption of herbicide exposure).

Furthermore, VA regulations provide for presumptive service connection for specific diseases associated with exposure to herbicide agents.  Those diseases that are listed at 38 C.F.R. § 3.309(e) include Type II Diabetes Mellitus and "early onset" peripheral neuropathy.

Effective September 6, 2013, VA amended its adjudication regulations concerning presumptive service connection for disabilities associated with exposure to certain herbicide agents.  The amendments implement a decision by the Secretary to clarify and expand the terminology regarding the presumption of service connection for peripheral neuropathy associated with exposure to certain herbicide agents and to ensure compliance with court orders from the class action litigation of Nehmer v. U.S. Department of Veterans Affairs, No. CV-86-6160 TEH (N.D. Cal.).  In the National Academy of Sciences' (NAS) report Veterans and Agent Orange: Update 2010, NAS concluded that early onset peripheral neuropathy associated with herbicide exposure is not necessarily a transient condition.  NAS also reaffirmed the conclusion in its prior reports that data did not suggest that exposure to herbicides led to the development of delayed-onset chronic peripheral neuropathy.  Therefore, VA amended §§ 3.307(a)(6)(ii) and 3.309(e) by replacing the term "acute and subacute peripheral neuropathy" with the term 
"early-onset peripheral neuropathy."  VA also removed Note 2 to § 3.309(e), which had required, in order for the presumption to apply, that the neuropathy be transient and appear within weeks or months of exposure to an herbicide agent and resolve within two years of the date of onset.  Under the amendments, peripheral neuropathy will still need to become manifest to a degree of 10 percent or more within one year after the date of last exposure to herbicides in order to qualify for the presumption of service connection, but it no longer needs to be transient.


VA also amended § 3.816, the regulation governing retroactive awards under the Nehmer court orders for certain diseases associated with herbicide exposure, by removing the language from paragraph (b)(2) that the Nehmer court orders only apply to presumptions established before October 1, 2002, and removing the list of conditions.  This revision addresses findings in the Nehmer court orders that the date restriction and corresponding list of presumptive conditions were invalid, since they were not inclusive of all conditions the Secretary has determined to be presumptively service connected based on herbicide exposure under the Agent Orange Act of 1991.  VA is inserting language at § 3.816(b)(2) to clarify that the Nehmer court orders apply to the presumptions listed in § 3.309(e).  These amendments apply to claims received by VA on or after September 6, 2013 and to claims pending before VA on that date.  VA will also apply this rule in readjudicating certain previously denied claims as required by the Nehmer court orders.

So these diseases shall be presumptively service connected if there are circumstances establishing herbicide agent exposure during active military service, even though there is no record of such disease during service.

The provisions for presumptive service connection nonetheless do not preclude a claimant from establishing service connection with proof of actual direct causation, on the basis that his exposure to Agent Orange led to the development of the claimed disability after service.  See, e.g., Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994) (holding that the Veterans' Dioxin and Radiation Exposure Compensation Standards (Radiation Compensation) Act, Pub. L. No. 98-542, § 5, 98 Stat. 2724, 2727-29 (1984), does not preclude a veteran from establishing service connection with proof of actual direct causation).  See also Stefl v. Nicholson, 21 Vet. App. 120 (2007); see, too, McCartt v. West, 12 Vet. App. 164, 167 (1999) (indicating the principles set forth in Combee, which, instead, concerned exposure to radiation, are equally applicable in cases involving Agent Orange exposure to establish direct causation).


The determination as to whether the requirements for service connection are met is based on an analysis of all the relevant evidence of record, medical and lay, and the evaluation of its competency and credibility to determine its ultimate probative value in relation to other evidence.  See Baldwin v. West, 13 Vet. App. 1, 8 (1999).

All reasonable doubt material to the determination is resolved in the Veteran's favor.  38 C.F.R. § 3.102.

Generally, lay statement evidence may have direct relevance to establishing underlying components of a claim for service connection.  In Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007), the Federal Circuit Court commented that competence to establish a diagnosis of a condition can exist when:  (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.

Lay testimony where found credible is also competent to establish the presence of continuity of symptomatology for a claimed disability during and since separation from military service (again, subject to the limitation that a "chronic" disease is involved as defined under 38 C.F.R. § 3.309(a)).  See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007).

The Federal Circuit Court has further held in Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010) and in Waters v. Shinseki, 601 F.3d 1274, 1278 (2010), that it is error to suggest that lay evidence can never be sufficient to satisfy the requirement of 38 U.S.C.A. § 5103A(d)(2)(B) that there be a nexus between military service and a claimed condition.  But as also observed by the Federal Circuit Court, lay evidence must "demonstrate some competence."  See King v. Shinseki (Fed. Cir. 2012) (citing 38 U.S.C.A. § 5107(b) and 38 C.F.R. § 3.307(b)) (internal quotation marks omitted).  When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent.  See Kahana v. Shinseki, 24 Vet. App. 428 (2011).

Also under VA law, when a Veteran suffers additional disability or death as the result of training, hospital care, medical or surgical treatment, or an examination by VA, disability compensation shall be awarded in the same manner as if such additional disability or death were service-connected.  To be awarded compensation under section 1151, the Veteran must show that VA treatment (or other qualifying event) resulted in additional disability, and further, that the proximate cause of the additional disability was carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing the medical or surgical treatment, or that the proximate cause of the disability was an event that was not reasonably foreseeable.  38 U.S.C.A. § 1151.  For a claim, as here, filed on or after October 1, 1997, the implementing VA regulation is 38 C.F.R. § 3.361 (rather than 38 C.F.R. § 3.358, which instead concerns a claim filed before that delimiting date and does not require a showing of VA fault or negligence in the provision of medical care).

To determine whether additional disability exists, the Veteran's physical condition immediately prior to the beginning of the hospital care, medical or surgical treatment, or other relevant incident in which the claimed disease or injury was sustained upon which the claim is based, is compared to the Veteran's condition after such treatment, examination or program has stopped.  38 C.F.R. § 3.361(b).

If additional disability exists, the next essential determination is whether the causation requirements for a valid claim for benefits have been met, to consist of both actual and proximate causation.  In order to establish actual causation, the evidence must show that the medical or surgical treatment rendered resulted in the Veteran's additional disability.  If it is shown merely that a claimant received medical care or treatment, and has an additional disability, that in and of itself would not demonstrate actual causation.  38 C.F.R. § 3.361(c)(1).  Also, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause.  To establish that carelessness, negligence, lack of proper skill, error in judgment or other instance of fault proximately caused the additional disability, it must be shown that VA failed to exercise the degree of care expected by a reasonable treatment provider, or furnished the treatment at issue without informed consent.  38 C.F.R. § 3.361(d)(1). 

Proximate cause also may be established where the additional disability was an event not reasonably foreseeable, 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 medical provider would not have considered to be an ordinary risk of the treatment provided.  In determining whether an event was reasonably foreseeable, VA is required to consider the type of risk that a reasonable health care provider would have disclosed as part of the procedures for informed consent (in accordance with 38 C.F.R. § 17.32).  38 C.F.R. § 3.361(d)(2).

Background and Analysis

Service Connection for Type II Diabetes Mellitus

The Board finds that, upon thorough review of the evidence before it and with application of all pertinent law, this claim must be denied.  In so finding, the Board is readily aware of the fact that the Veteran has Type II (adult-onset) Diabetes Mellitus, as reflected by an initial May 2008 diagnosis, but ultimately must adhere to the strict legal requirement that a claimed condition also have a causal relationship to military service.  A causal nexus to service is an indispensable element for service connection.  See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service.").  The primary theory of entitlement raised by the Veteran is that his diabetes is the result of Agent Orange exposure during his military service.  There is no theory of direct service connection apparent, or presumptive either in the sense the diabetes manifested to a compensable degree of at least 10-percent disabling within the initial post-service year, inasmuch as the Veteran did not have signs or symptoms of diabetes mellitus in service or for several decades thereafter, and did not first receive a clinical diagnosis of this condition until 2008, some 40 years post service.


Consequently, there is no medical or competent lay evidence to establish direct service connection for the diabetes mellitus or presumptive incurrence by way of 38 C.F.R. § 3.309(a), though this does not end the inquiry.  The primary focus of the Board becomes whether there was in-service exposure to Agent Orange as to warrant application of the alternative presumptive service connection provisions for diabetes mellitus found at 38 C.F.R. § 3.309(e).  Where entitlement exists on a presumptive basis, the element of a causal nexus need not be independently established, and instead is presumed to exist as a matter of law.  

To this effect, however, the record does not demonstrate herbicide exposure.  The Veteran maintains he had in-service exposure to Agent Orange in connection with his service in the mid-to late-1960s aboard the U.S.S. Hancock (CV-19), an aircraft carrier, based upon having served in proximity to the Republic of Vietnam.  The Board preliminarily points out that the presumption of Agent Orange exposure based on Vietnam service by regulation applies only to Veterans who served within the territorial landmass of the Republic of Vietnam, or otherwise had "brown water" service, consisting of service throughout the inland waterways of the country, or at minimum having docked at a port along the coast.  Service entirely in the waters offshore of Vietnam ("blue water" service) would not qualify.  Haas, supra.

The Veteran in this case did not have, nor does he claim to have had, service within the territorial landmass of Vietnam.  He does nonetheless point to his receipt of the Vietnam Service Medical (VSM) and Vietnam Campaign Medal (VCM) as being sufficient proof of qualifying Vietnam service.  

He received the VSM and VCM as reflected on a Report of Separation from the Armed Forces (DD-214) from during the Vietnam Era.  However, these decorations are not per se evidence of service within the territorial borders of Vietnam.  The VSM was awarded to all members of the Armed Forces of the United States serving in Vietnam and contiguous waters or airspace thereover, as well as for those who served in Thailand, Laos or Cambodia while serving in direct support of operations in Vietnam.  See Manual of Military Decorations and Awards, 6.5 (Department of Defense Manual 1348.33-M, September 1996).  In addition, the VCM was awarded to all service personnel who served in South Vietnam or who served outside of the geographical limits of Vietnam and contributed direct support to the forces in Vietnam. Id. at 7-7, September 1996.

The Veteran makes additional assertions regarding personal participation in "special operations" that involved ostensibly service in the inland waterways of Vietnam, and has provided copies of the unit history summary for the U.S.S. Hancock to substantiate this claim.  However, the Board has no basis to independently verify the Veteran's participation in any special operations or exercises that would bring his service within the ambit of the presumption of Agent Orange exposure based on Vietnam service under 38 U.S.C.A. § 1116.  His military personnel file is absent reference to any such role during his service, as are the unit history records, nor does he provide any significant substantiating details that might further assist in verifying his assertions.  On this subject, the Board cannot take his assertions completely at face value.  Some objective corroboration of Agent Orange exposure is required.  See, e.g., Bardwell v. Shinseki, 24 Vet. App. 36, 40 (2010) (in contrast to situations involving alleged medical symptoms or injury, a non-combat claimant's lay assertion that an event occurred in service must be weighed against other evidence of record, including lack of documentary evidence of the incident).

Moreover, while the copy of unit history records submitted by the Veteran refers to several "special operations" exercises on the part of the U.S.S. Hancock, in 1966 and 1967, it warrants observation that each of those exercises appears to have consisted of aircraft carrier based remote air campaigns upon specified locations in Vietnam, not a type of exercise that would have required his actual presence in Vietnam (meaning in country) given his documented occupational duties, as opposed to his continued presence and involvement while still aboard the U.S.S. Hancock.


Also noted is that there is a July 2009 one-page document issued by a VA physician stating the Veteran's diabetes mellitus was etiologically related to his military service, and proceeding to indicate that "diabetes mellitus, type II has been recognized as associated with exposure to Agent Orange."  The Board must independently evaluate the probative weight to assign to this conclusion.  See Elkins v. Brown, 5 Vet. App. 474, 478 (1993) (the Board may evaluate the underlying basis of an opinion on a medical question, and determine whether to accept such an opinion under the circumstances).  Unfortunately, the Board cannot ascribe much in the way of probative weight to this opinion, as it presupposes that the Veteran has been exposed to Agent Orange, when in fact the record at no point demonstrates this key underlying factual premise.  See generally Reonal v. Brown, 5 Vet. App. 458, 462 (1993) (a medical opinion based on an inaccurate factual premise is not probative).  Similarly, the medical conclusion expressed in September 2009 by a treating VA physician that "I could agree" that diabetes mellitus and Agent Orange exposure were related, does not carry probative weight, again given the lack of confirmed exposure to Agent Orange.

It follows that in-service Agent Orange exposure has not been established as a basis to apply the provisions on presumptive service connection to the Veteran's claim.

The Board further observes that, whereas the Veteran's diabetes mellitus was diagnosed in 2008, roughly contemporaneous with commencing chemotherapy and radiation treatment for his pharynx cancer, treatment for which he is independently seeking compensation under 38 U.S.C.A. § 1151, there is no indication, suggestion, or argumentation to the effect that diabetes mellitus is in any matter objectively related to that treatment course.  Moreover, the opinion of the June 2013 VA examiner addressed this very possibility, stating: "[r]eview of the claims file shows that the Veteran had a fasting glucose on 5/30/08 and hemoglobin Alc of 12.8 on 5/19/2008 at which time he was started on medicine for diabetes.   He started chemotherapy on 6/16/08.  The diagnosis of the Veteran's diabetes predates his receipt of chemotherapy, so the diabetes is not result of the chemotherapy."  This stated opinion further rules out any connection between diabetes mellitus and chemotherapy.

For these reasons and bases, the Board is denying service connection for diabetes mellitus, including as due to exposure to Agent Orange.  The preponderance of the evidence is against this claim, and under these circumstances the benefit-of-the-doubt doctrine does not apply.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).   

Service Connection for Upper and Lower Extremity Peripheral Neuropathy, including § 1151 Compensation

The Board has considered these additional claims for service connection for peripheral neuropathy of the hands and feet under all potential theories of entitlement, including under the primary alleged basis of recovery under 38 U.S.C.A. § 1151, for faulty, negligent, or otherwise deficient medical care in connection with the administration of chemotherapy for diagnosed cancer of the pharynx at the Mountain Home VAMC.

As to the additional theory of recovery premised on exposure to Agent Orange, for the reasons already discussed above, the Board finds that the Veteran was not exposed to Agent Orange at any time or in any manner or capacity during his military service, including while stationed aboard the U.S.S. Hancock (CV-19) and in connection with the "special operations" he alleges to have participated in.  Consequently, there is no readily apparent basis for recovery on those grounds.  There is a July 2008 one-page document issued by a VA physician stating that the Veteran's squamous cell carcinoma of the pharynx was etiologically related to his military service, and proceeding to indicate that "the Veteran was exposed to Agent Orange in Vietnam."  In theory, were squamous cell carcinoma linked to service, it would follow that attendant peripheral neuropathy from treatment for the same also would be so linked.  Here again, however, the opinion proffered is based on an inaccurate factual premise that Agent Orange exposure actually occurred, and hence cannot be ascribed probative value.

Thus, the Board's discussion and review of the evidence below is focused instead on application of the provisions of § 1151.

The file includes VA treatment records indicating in May 2008 a diagnosis of squamous cell carcinoma at the right base of the tongue.  In June 2008, for his diagnosis of oropharyngeal cancer, the Veteran was admitted to the Mountain Home VAMC to begin chemotherapy with Cisplatin.  During the initial chemotherapy consult, the VA treatment provider discussed with the Veteran the definition of cancer and how chemotherapy treated cancer, as well as discussed chemotherapy in general, the expected side effects, and the intervention planned if he developed side effects.  They discussed the specific regimen of Cisplatin, plans to give every three weeks, need for pre- and post-hydration, and how long the treatment would take.  They specifically reviewed the common side effects and symptoms management of nausea and vomiting, mucositis, hair loss, and decreased white blood cell count and increased risk of infection, as well as the possible peripheral neuropathy and ototoxicity related to Cisplatin therapy.  In response the Veteran verbalized his understanding of this information.  He also contemporaneously signed a medical consent form to undergo the chemotherapy.  He then underwent a concurrent course of chemotherapy and radiation treatments over the next month and was temporarily discharged.  In late June 2008 he was readmitted for acute renal failure and dehydration, which was treated over a period of days.  An August 2008 record indicates he was continuing to receive concurrent chemotherapy with Cisplatin, and radiation therapy to the head and neck, and was tolerating the treatment well and doing better.  The treatments finished that month.  It was indicated he had tolerated the treatments well, except for some mucositis requiring medical management.  At the completion of the treatments, there was marked tumor regression and pain relief.  A CT scan in October 2008 was negative for evidence of disease.  He underwent a period of rehabilitation.

Thereafter, during a July 2009 VA oncology consult, the Veteran reported having had ongoing mild tingling of his feet and fingertips with no influence on activity.  The following month, he again reported tingling of his fingers and feet and was unsure whether this was due to radiation treatment or diabetes.  There were objectively positive responses for paresthesias, thumbs or index fingers, localized.  

A September 2009 otolaryngology (ear, nose & throat (ENT)) consult indicated he was regaining his strength and some weight following chemotherapy and radiation therapy.  Mouth dryness and taste sensation were improving and he felt good.  There were no pharyngeal symptoms reported.  Objectively, a completed head exam was normal with no evidence of recurrent or new disease.  Specifically, there was no cervical lymphadenopathy, and the oropharynx, hypopharynx and larynx appeared normal.  The impression was status-post chemoradiation for base of tongue carcinoma with neck nod metastasis one year previously, with no apparent recurrent or new disease.  The September 2009 statement of a treating VA physician, in response to the Veteran's request for a medical opinion helpful to his claim, indicates that "the neuropathy could be a persistent problem from now on or it could go away.  It is hard to say."   Then the March 2010 statement from this same physician was as follows: "Peripheral neuropathy [is] most likely secondary to chemotherapy and his diabetes, it is hard to determine which caused the neuropathy.  He is currently tolerating this but may need treatment in the future."

Lay witness statements received in April 2010 from persons who know the Veteran describe him as having ongoing symptoms of numbness in his hands and feet.

In his June 2010 Substantive Appeal to the Board (on VA Form 9), the Veteran indicated that during his three-month period of VA treatment he had developed the neuropathy, which he did not have prior to that treatment.  This resultantly was the basis for him associating the neuropathy with that treatment.

In his January 2013 correspondence, T.H.D., a private dentist, indicated that following the Veterans treatment for throat cancer, the radiation received to the head and neck region had destroyed all glandular tissue permanently, including the salivary glands.  These tissues had no potential to regenerate; hence that left the patient with a perpetual dry mouth.  According to this private dentist, saliva was very important to oral health, and provided several important functions, including to buffer the acids produced by plaque bacteria that caused tooth decay.  

The Veteran's salivary glands had been destroyed by the radiation treatments, and he had since had a serious problem with tooth decay.  In 2011, he had presented to the dentist's office with 20 cavities, though luckily only one of his teeth required extraction.  He now used dry mouth products and fluoride, in addition to dietary controls to try and prevent cavities.  He would face the rest of his life with a battle against oral problems due to his treatment for throat cancer.

Additional VA outpatient records indicate a January 2013 clinical assessment of "numbness by history, likely multifactorial include diabetes mellitus, Cisplatin."  

Pursuant to the Board's remand directive, in June 2013 a VA medical opinion was obtained upon review of the claims file regarding the issues essential to the determination on the Veteran's §  1151 claim.  The opinion is as follows [with the last paragraph of the opinion having been moved to the forefront, for the sake of clarity]:

The [below] references show that the VA provided the recommended, appropriate treatment regimen for the patient's cancer that would be expected of a reasonable health care provider.  It shows that the patient gave his written informed consent to treatment with education regarding known foreseeable side effects, to include neuropathy, on at least two separate occasions.

.  .  .

According to Martindale:  The Complete Drug Reference: Effects on the nervous system, the features of Cisplatin-induced peripheral neuropathy are consistent with damage mainly to sensory fibers, with numbness, tingling, and decrease vibratory sensation and deep tendon reflexes, progressing in severe cases to disabling sensory ataxia. The toxicity is dose-dependent, with symptoms usually appearing in patients who have received cumulative disease of 300 to 600 mg/m2, although individuals vary in susceptibility.  Neuropathy is reversible but recovery may take a year or more.  The pathophysiology is unknown.  Peripheral neuropathy can be a dose-limiting toxicity for Cisplatin...

According to the Cochrane review of 2010, which looked at the studies prior to that year "Authors' Conclusions: Chemotherapy, in addition to radiotherapy and surgery, is associated with improved overall survival in patients with oral cavity and oropharyngeal cancers.  Induction chemotherapy is associated with a 9% increase in survival and adjuvant concomitant chemoradiotherapy is associated with a 16% increase in overall survival following surgery.  In patients with unresectable tumors, concomitant chemoradiotherapy showed a 22% benefit in overall survival compared with radiotherapy alone."

...The NIH cancer site recommends Cisplatin (the chemotherapeutic agent used for this Veteran) as the drug of choice when combined with radiation therapy.  Chemo/radiation treatment combined is generally preferred to the surgery with cancers at the base of the tongue, the location of this Veteran's cancer. 

The Veteran signed a consent on 6/9/2008 for chemotherapy which had a description of potential side effects, including those of the nervous system with examples given of tingling and numbness of the fingers and toes.  He was also given the drug information sheet on the side effects of Cisplatin, and counseled on the possible side effect of peripheral neuropathy, a known foreseeable side effect, according to the 6/16/2008 initial chemotherapy education note.

The Board reaches the conclusion in this case that the criteria for recovery under 38 U.S.C.A. § 1151 have not been met.  All indications are that the Veteran did indeed develop peripheral neuropathy after his chemotherapy, and there is no material question that he experienced a residual "additional disability" consisting of the peripheral neuropathy, yet the essential requirement of medical causation remains to be addressed.  Regarding this matter, there is for consideration first, actual causation, involving whether peripheral neuropathy resulted from chemotherapy; and second, proximate causation, whether peripheral neuropathy was due to VA medical negligence or carelessness, or otherwise was an unforeseen complication of the chemotherapy.  See 38 C.F.R. § 3.361(c)(1), (d)(1).  

At the outset, there is a considerable question as to whether, regarding actual causation, the Veteran's peripheral neuropathy was the direct result of the chemotherapy.  Several VA treatment providers have commented that the Veteran's peripheral neuropathy seemed multi-factorial, in that it appeared his diabetes mellitus played at least as much of a role in the onset of the peripheral neuropathy as did the chemotherapy.  Keeping this fact in mind, the Board will consider the limited requirement of actual causation to be proven, given that chemotherapy was another recognized factor in the development of the peripheral neuropathy (even if not the only factor cited), and available medical literature implicates this as a known side effect of Cisplatin, the chemotherapeutic agent the Veteran was prescribed.  The Board therefore turns next to the issue of proximate causation as this also has to be established.

Here, however, the preponderance of the evidence clearly weighs against the Veteran's claim with regards to this additional element of proximate causation.  To begin with, there is nothing accompanying the medical record or within the Veteran's assertions to indicate or suggest that the development of the peripheral neuropathy was inherently the result of faulty, negligent, or otherwise deficient VA medical treatment.  While the manifestation of any post-treatment side effects is unfortunate, the fault requirement to establish proximate causation under 38 U.S.C.A. § 1151 is one of the focal points under any claim pursuant to this statute, and is not demonstrated in this case.  Also compare and contrast 38 C.F.R. § 3.358 versus § 3.361, which in the former does not have this fault requirement whereas in the latter (which is applicable here) does have this fault requirement.


Rather, the Veteran's peripheral neuropathy does not appear to be anything other than a long-term side effect of an unavoidable and properly administered treatment course for his pharyngeal tumor.  The June 2013 VA medical opinion substantiates this finding through characterizing the Veteran's course of chemotherapy as a recommended and appropriate treatment regimen that would be expected of a reasonable health care provider, particularly in light of the National Institute of Health's (NIH's) clinical recommendation of Cisplatin as the drug of choice (when combined with radiation therapy) for cancers at the base of the tongue, as occurred in this case.  Thus, while there is clearly additional disability in the form of the peripheral neuropathy, there is no showing of medical negligence.  Nor is there any showing of peripheral neuropathy as an unforeseen consequence of the chemotherapy, as the opinion further points out, considering that the Veteran completed two separate informed consents recognizing peripheral neuropathy as a potential side-effect, and there were numerous studies that also substantiated this medical relationship between Cisplatin and peripheral neuropathy. 

It follows that, without a showing of proximate causation, on the basis of either medical negligence or an unforeseeable event, the requirements for recovery under § 1151 are not met.  The requirements also are not met for service connection for peripheral neuropathy of the hands and feet on any other basis.  The preponderance of the evidence is against the claims, and hence, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.



ORDER

The claims of entitlement to service connection for Type II Diabetes Mellitus and upper and lower extremity peripheral neuropathy of the hands and feet (claimed as weakness and numbness), including as secondary to Agent Orange exposure or, pursuant to 38 U.S.C.A. § 1151, chemotherapy provided at the Mountain Home VAMC, are denied.



____________________________________________
KEITH W. ALLEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs