Citation Nr: 1339003 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 08-03 904 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased disability rating for service-connected left knee injury, recurrent patella dislocation, currently evaluated 20 percent disabling. 2. Entitlement to an increased disability rating for service-connected left knee, limitation of extension, currently evaluated 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A.G. Alderman, Counsel INTRODUCTION The Veteran served on active duty in the United States Air Force from April 1990 to April 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision dated February 2006 of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. The RO granted service connection for left knee disability in a September 1994 rating decision; a noncompensable [zero percent] disability rating was assigned. In a June 2003 rating decision, the disability rating assigned to the Veteran's service-connected left knee was increased to 10 percent, effective January 28, 2003. The Veteran disagreed with that rating and a statement of the case (SOC) was issued in March 2004. In September 2004, the disability rating assigned to the service-connected left knee disability was increased to 20 percent, effective April 14, 2003. The Veteran submitted an untimely VA Form 9 as to the March 2004 SOC in December 2004. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.202 (2013). In a letter dated December 2004, the Veteran was informed that his VA Form 9 was untimely and that it would instead be treated as a new claim of entitlement to an increased disability rating for the service-connected left knee disability. In June 2010, the Veteran testified before the undersigned at a personal hearing conducted at the RO. A transcript of this hearing has been included in the claims folder. The Board remanded this matter in December 2010 for additional development, which has been substantially completed. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2012, the RO granted a separate 10 percent rating for limitation of extension of the left knee and a separate noncompensable rating for a residual scar of the left knee. The Board has reviewed the Veteran's physical claims file and file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The overall disability picture for the entire pendency of the claim shows moderate but not severe subluxation or lateral instability of the left knee. 2. The Veteran's flexion of the left knee has not been limited to 45 degrees or less and his extension has not been limited to 15 degrees or more. 3. Arthritis of the knee is shown in August 2007 x-ray reports, thus the separate rating based on arthritis resulting in noncompensable limitation of motion is warranted from this date. CONCLUSIONS OF LAW 1. The criteria for disability rating in excess of 20 percent for the service-connected left knee injury, recurrent patella dislocation, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5260 (2013). 2. The criteria for a separate rating of 10 percent for the service-connected left knee, limitation of extension, have been met from August 2007; however, the criteria for a rating in excess of 10 percent have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5257, 5260, and 5261 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist With respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183 (2002). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO's December 2004, June 2008, and January 2012 letters to the Veteran satisfied the duty to notify provisions relating to the Veteran's claim at issue herein. 38 U.S.C.A. § 5103 (a); 38 C.F.R. § 3.159 (b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The June 2008 and January 2012 letters notified the Veteran that he must submit, or request that VA obtain, evidence of the worsening of his disability and of the different types of evidence available to substantiate his claim for a higher rating. Moreover, these letters informed him of the requirements to obtain higher ratings and notified him of the need to submit evidence of how such worsening effected his employment. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1275-82 (2009). While the June 2008 and January 2012 letters were not issued prior to the issuance of the initial rating decision, the Board finds that this error was not prejudicial to the Veteran because the actions taken by VA after providing the notice have essentially cured the error in the timing of notice. Not only has the Veteran been afforded a meaningful opportunity to participate effectively in the processing of his claim and given ample time to respond, but the RO also readjudicated the case by way of a December 2008 supplemental statement of the case (SSOC) and October 2012 SSOC after the notice was provided. Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). For these reasons, it is not prejudicial to the Veteran for the Board to proceed to finally decide this appeal as the timing error did not affect the essential fairness of the adjudication. The duty to assist the Veteran has been satisfied in this case. The RO has obtained the Veteran's service treatment records and his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Moreover, the Veteran has been afforded VA examinations that are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Specifically, the December 2005, August 2007, January 2009, and January 2012 examiners took into account the Veteran's statements, completed comprehensive physical examinations, and provided detailed examination reports regarding the Veteran's disability and symptoms. As such, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini, 18 Vet. App. at 120. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); see also Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination); (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Review of the procedural history shows that the Veteran's left knee disorder, recurrent patella dislocation, was initially rated under Diagnostic Code 5299-5260, as a disability analogous to limitation of flexion. In November 2012, the RO rated the disability under Diagnostic Code 5003-5257 for arthritis resulting in recurrent subluxation or lateral instability and granted a separate rating for the left knee under Diagnostic Code 5003-5261, for arthritis resulting in limitation of extension. Included within 38 C.F.R. § 4.71a are multiple diagnostic codes that evaluate impairment resulting from service-connected knee disorders, including Diagnostic Code 5256 (ankylosis), Diagnostic Code 5257 (other impairment, including recurrent subluxation or lateral instability), Diagnostic Code 5258 and 5259 (concerning semilunar cartilage), Diagnostic Code 5260 (limitation of flexion), Diagnostic Code 5261 (limitation of extension), Diagnostic Code 5262 (impairment of the tibia and fibula), and Diagnostic Code 5263 (genu recurvatum). The evidence does not show ankylosis, impairment of the tibia and fibula, or genu recurvatum; therefore, the Board will not address Diagnostic Codes 5256, 5262 or 5263. Further, while the evidence shows a scars related to the left knee disability, the evidence does not show scars in an area exceeding 6 square inches or scars that are otherwise symptomatic. Therefore, consideration of an increased rating for scars under 38 C.F.R. § 4.118 is not warranted. Under Diagnostic Code 5003, degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. The diagnostic codes that focus on limitation of motion of the knee are Diagnostic Codes 5260 and 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5257 provides that recurrent subluxation or lateral instability warrants a 10 percent rating if slight, a 20 percent rating if moderate, and a 30 percent rating if severe. 38 C.F.R. § 4.71a. The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Diagnostic Code 5258 provides a 20 percent rating for dislocated semilunar cartilage with frequent episodes of "locking," pain and effusion into the joint. 38 C.F.R. § 4.71a. Diagnostic Code 5259 provides a 10 percent rating for removal of semilunar cartilage that is symptomatic. Id. Diagnostic Code 5260 provides for a 10 percent rating for flexion limited to 45 degrees, 20 percent rating for flexion limited to 30 degrees, and a 30 percent rating for flexion limited to 15 degrees. Id. Diagnostic Code 5261 provides for a noncompensable rating for extension limited to 5 degrees, a 10 percent rating when there is evidence of extension limited to 10 degrees, a 20 percent rating for extension limited to 15 degrees, and higher evaluations for more severely limited extension. Id. In addition, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45 (2013); DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The VA Office of General Counsel has stated that compensating a claimant for separate functional impairment under Diagnostic Codes 5257 and 5003 does not constitute pyramiding. VAOPGCPREC 23-97 (July 1, 1997). In this opinion, the VA General Counsel held that a veteran who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, provided that a separate rating is based upon additional disability. Subsequently, in VAOPGCPREC 9-98 (Aug. 14, 1998), the VA General Counsel further explained that if a veteran has a disability rating under Diagnostic Code 5257 for instability of the knee, and there is also X-ray evidence of arthritis, a separate rating for arthritis could also be based on painful motion under 38 C.F.R. § 4.59. Similarly, VA General Counsel has held that separate ratings under DC 5260 for limitation of flexion of the leg and DC 5261 for limitation of extension of the leg may be assigned for disability of the same joint. VAOPGCPREC 9-04 (Sept. 17, 2004). Private treatment records show that the Veteran had surgery, arthroscopy with chondroplasty, medial patella femoral ligament reconstruction, lateral release, on his left knee in January 2005. The RO awarded a temporary total rating from January 13, 2005 to July 1, 2005, at which time the 20 percent rating was assigned. The evidence includes a December 2005 VA examination. The Veteran reported pain and weakness. He would fall three times per month with some stiffness and swelling. He experienced a locking sensation about once every two weeks. Flare-ups occurred five times per week and rated a 9 on a pain scale to 10, with 10 being the worst pain. He could walk for half of a block or five minutes but could not climb. The examiner observed a two inch, asymptomatic scar. Flexion of the knee measured to 85 degrees with pain and 90 degrees without pain. Extension of the knee was to 0 degrees. No pain was elicited during repetitive motion and no fatigue or weakness was observed. February 2006 treatment records from Dr. A.F.H. indicate that the Veteran had had persistent grinding, popping, catching, and pain when going up and down stairs since his surgery. The Veteran could not perform leg extensions. The provider observed that the Veteran's left quadriceps and calf were significantly atrophied compared to the right. The physical examination revealed patella femoral crepitation on the left and a mildly positive J-sign but no apprehension or lateral instability. The Veteran has submitted several statements attesting to his knee pain and indicating that he had to retire from employment because he was no longer able to perform his job due to his knee disabilities. In support of his statement, he submitted a note from his doctor recommending that he not return to being a letter carrier because he needed to avoid squatting, kneeling, jumping, rough and uneven ground, and stairs where possible. The Veteran had a VA examination in August 2007 for VA unemployability benefits purposes (TDIU). The Veteran reported a worsening of his knee since his January 2005 surgery. He continued to wear his knee brace daily and expressed pain when walking, standing, and driving. He could no longer run, kneel, or squat. The Veteran reported instability, grinding and popping of the knee, pain, and weakness. He continued to have flare-ups every other day, lasting 12 hours. Activity during flare-ups was minimal. Range of motion (ROM) testing showed flexion of the left knee to 130 degrees, with pain starting at 0 degrees, and extension to 0 degrees, with pain starting at 0 degrees. No additional loss of motion was observed with repetitive use. The examiner observed poor propulsion, tenderness of the knee, and sub patellar tenderness. X-rays showed minimal degenerative changes. The Veteran had a VA examination in January 2009. The Veteran reported giving way, instability, pain, stiffness, weakness, incoordination, decreased speed of motion, one to three episodes of dislocation or subluxation a month, daily locking episodes, swelling, tenderness, and severe, daily flare-ups. He could not walk more than a few yards and used a cane to ambulate. The examiner observed antalgic gait, crepitus, tenderness, pain at rest, guarding of movement, and subpatellar tenderness. ROM testing showed flexion to 100 degrees and extension to 0 degrees, with pain. No additional limitations were observed after repetitive motion. X-rays showed mild to moderate degenerative osteoarthritis. The Veteran indicated that he was unemployed due to his knee problems. In December 2008, the Veteran had bilateral arthroscopic chondroplasty on his knees. In February 2009, the Veteran's symptoms included crepitation and mild tenderness. The knee was stable. During his hearing before the Board in June 2010, the Veteran noted his two prior surgeries and constant pain. He rated his daily pain at a 10 on the pain scale. He also noted reduced ROM and stiffness. He said his private doctor indicated that he needed knee replacements but that the Veteran should wait as long as he could before having the procedures due to his young age. The Veteran had a VA examination in January 2012. ROM testing showed flexion of the knee to 110 degrees with objective evidence of pain at 100 degrees. Extension measured to 0 degrees, with pain. After repetitive testing, the examiner observed less movement than normal, though no reduction in degrees was indicated. Also observed was weakened movement, excess fatigability, pain on movement, and interference with standing, sitting and weight-bearing. Also noted was pain with palpation. Normal strength was indicated at 5/5 on flexion and extension. The examiner observed anterior instability, posterior instability, and moderate patellar subluxation or dislocation. Also noted was a meniscal tear in the right knee that caused frequent episodes of locking and pain. The examiner indicated that the Veteran had a meniscectomy in 2005 to correct the issue and that residuals included moderate crepitus and joint instability. The examiner stated that the Veteran has decreased stability due to the January 2009 arthroscopic surgery. First, the Board observes that the January 2012 VA examiner stated that the Veteran's surgery in January 2005 was a meniscectomy and that residuals of the surgery include moderate crepitus and joint instability. However, while the surgical records show that the surgery involved chondroplasty and that the surgeon performed a "lateral release with the medial meniscectomy Bovie kit", the surgical record indicates that the procedure was only a debridement or shaving of the articular cartilage. The records do not indicate that the Veteran had the semilunar cartilage removed or that he has had dislocated semilunar cartilage of the left knee. As such, the Board finds that separate ratings under Diagnostic Codes 5258 and 5259 are not warranted. The Board finds that the evidence supports the currently assigned 20 percent rating under 38 C.F.R. § 4.71a, Diagnostic Code 5257, for moderate subluxation or lateral instability of the left knee for the entire pendency of the claim. See Hart, 21 Vet. App. 505. February 2006 private treatment records indicate mild mal-tracking. The August 2007 and January 2009 VA examination reports show subpatellar tenderness and the Veteran's complaints of instability and subluxation. Objective evidence of instability and subluxation was not indicated. The January 2012 VA examination report indicates anterior instability, posterior instability, and moderate patellar subluxation or dislocation. The Board has considered the Veteran's report of symptoms and the medical evidence, and finds that the overall disability picture for the entire pendency of the claim shows moderate but not severe subluxation or lateral instability of the left knee. The DeLuca criteria do not apply under this diagnostic code. As such, a rating in excess of 20 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5257 is not warranted. The Board has also considered whether separate or increased ratings are warranted for the left knee disability under Diagnostic Codes 5003, 5260 and 5261. The Veteran currently has a separate 10 percent rating under Diagnostic Code 5003-5261 for arthritis with limitation of extension of the knee, effective January 2012. First, the Board observes that the Veteran's limitation of extension and flexion have not been of the severity to warrant a compensable rating under either Diagnostic Code 5260 or 5261 at any time during the pendency of the claim, even with consideration of the DeLuca criteria and symptoms such as pain, weakness, or fatigability. However, under Diagnostic Code 5003, VA is authorized to assign a 10 percent rating when limitation of motion is noncompensable in degree and when the limitation is objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. Here it appears that the first diagnosis of arthritis was noted in the August 2007 VA examination and x-ray reports. Also noted was noncompensable limitation of motion with objective evidence of pain and other symptoms. As such, the Board finds that a separate rating of 10 percent is warranted from August 2007 under Diagnostic Code 5003. To this extent, the appeal is granted. Unfortunately, the Board cannot award a higher rating under Diagnostic Code 5003 as 10 percent is the maximum provided when only one major joint is involved. Further, the Board cannot award separate ratings under both Diagnostic Codes 5003-5260 and 5003-5261 because the diagnostic criteria for arthritis specifically state that the minimal 10 percent rating is warranted for each major joint or group of minor joints affected by limitation of motion. Thus, only one 10 percent rating can be awarded for the left knee joint. Therefore, the Board concludes that an evaluation in excess of 20 percent for the Veteran's service-connected left knee injury, recurrent patella dislocation, must be denied. Further, while an effective date of August 2007 is warranted for the separate 10 percent rating for service-connected left knee, limitation of extension, an evaluation in excess of 10 percent for the disability must be denied. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Extraschedular Considerations Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (2013). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court addressed at length the extra-schedular provisions of 38 C.F.R. § 3.321(b). The Court held that the determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Id. at 115. In Anderson v. Shinseki, 22 Vet. App. 423, 427 (2008), the Court clarified that the Thun steps are, in fact, "elements." The first step or element is a finding of whether the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun, 22 Vet. App at 115. 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. Id. This task is to be performed by the RO or the Board. Id. If the first element is met, the second step or element is a determination of whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Thun, 22 Vet. App. at 116. Such factors include "marked interference with employment" and "frequent periods of hospitalization." Id. This task is also to be performed by the RO or the Board. Id. If these two elements are met, the case must be referred to the Under Secretary for Benefits or the Director of [C & P] for completion of the third step or element-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. Id. The Court has held that neither the RO nor the Board is permitted to assign an extra-schedular rating in the first instance; rather the matter must initially be referred to those officials who possess the delegated authority to assign such a rating. Anderson, 22 Vet. App. at 426 (citing Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). After reviewing the evidence of record, it is not shown that such an exceptional disability picture exists that the available schedular evaluations for the service-connected disabilities are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disabilities level and symptomatology. There is no evidence in the medical records of an exceptional or unusual clinical picture. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b)(1) is not warranted. The Board has also considered the application of Rice v. Shinseki, 22 Vet. App. 447 (2009), which found that a TDIU claim is part of every increased rating claim and is properly before the Board when such a claim is reasonably raised by the record. However, in the instant case, the Veteran withdrew his claim for TDIU in December 2010. Therefore, the issue of TDIU need not be considered any further by the Board. ORDER Entitlement to an increased disability rating for service-connected left knee injury, recurrent patella dislocation, currently evaluated 20 percent disabling, is denied. Entitlement to a 10 percent rating from August 2007 for service-connected left knee, limitation of extension, is warranted. To this extent, the appeal is granted. ____________________________________________ L. M. BARNARD Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs