Citation Nr: 1340308 Decision Date: 12/06/13 Archive Date: 12/20/13 DOCKET NO. 10-02 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hearing loss. 2. Entitlement to service connection for depression, to include as secondary to a service-connected disability. 3. Entitlement to service connection for sleep apnea, to include as secondary to a service-connected disability. 4. Entitlement to service connection for erectile dysfunction, to include as secondary to a service-connected disability. 5. Entitlement to a compensable initial rating for chronic variocele of the left scrotum. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. J. In, Counsel INTRODUCTION The Veteran served on active duty from January 1959 to January 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The record shows that the Veteran was scheduled for his requested hearing before a Veterans Law Judge sitting at the RO in October 2013, but that he did not report and no good cause has been shown. His request for a Board hearing therefore is considered withdrawn. 38 C.F.R. § 20.704(d) (2013). In a November 2013 informal hearing presentation (IHP), the Veteran's representative clarified that the Veteran's claim of service connection for chronic groin pain, claimed as strain, was satisfied by a March 2013 rating decision that granted service connection for chronic variocele of the left scrotum. Therefore, the issue of entitlement to service connection for chronic groin pain, claimed as strain, is no longer on appeal. However, in the November 2013 IHP, the Veteran's representative expressed disagreement as to the noncompensable initial rating assigned for the service-connected chronic variocele of the left scrotum. Specifically, the Veteran contends that while the service-connected variocele is currently evaluated under the provisions of 38 C.F.R. § 4.115b, Diagnostic Code 7523, this diagnostic code does not appropriately contemplate his disability, because he does not have atrophy of the testes. He therefore contends that his service-connected variocele should be evaluated under the rating criteria for varicose veins, 38 C.F.R. § 4.104, Diagnostic Code 7120, which contemplates his symptoms of pain and swelling from recurrent inflammations. See 38 C.F.R. § 4.20 (allowing for analogous ratings of an "unlisted" condition under a closely related disease or injury in which not only the functions affected but the anatomical localization and symptoms are closely analogous). Additionally, while the March 2013 rating decision, in pertinent part, denied service connection for erectile dysfunction, the Veteran continues to contend in the November 2013 IHP that his erectile dysfunction is related to his service-connected variocele. Since this statement was received well within the one year the Veteran had to appeal the March 2013 rating decision granting service connection for chronic variocele of the left scrotum and denying service connection for erectile dysfunction, the Board construes that this is, in actuality, a timely notice of disagreement (NOD) with these issues. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.201 (2012); see also Gallegos v. Gober, 14 Vet. App. 50 (2000) (VA should liberally interpret a written communication that may constitute an NOD under the law), rev'd sub nom Gallegos v. Principi, 283 F. 3d 1309 (Fed. Cir. 2002) (the language of § 20.201 properly implemented 38 U.S.C.A. § 7105, and assuming that the [claimant] desired appellate review, meeting the requirement of § 20.201 was not an onerous task). An NOD must be filed with the VA office from which the Veteran received notice of the determination being appealed, which would be the Philadelphia RO. See 38 C.F.R. § 20.300 (2013). This is so unless the records have been transferred to another VA office. Id. Although the regulation seems to indicate that an NOD must be filed at the RO level, as the Board currently has jurisdiction over the records, the Board will accept the NOD as timely filed as it was received by VA within one year of the rating decision. See 38 C.F.R. § 20.302(a) (2013). The filing of a NOD initiates the appeal process. See Godfrey v. Brown, 7 Vet. App. 398, 408-10 (1995). As such, the issues of entitlement to service connection for erectile dysfunction and entitlement to a compensable initial rating for chronic variocele of the left scrotum are listed on the title page of this decision. The issues of entitlement to service connection for depression, for sleep apnea, and for erectile dysfunction, to include as secondary to a service-connected disability, and entitlement to a compensable initial rating for chronic variocele of the left scrotum are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's current hearing loss is not shown to have been present in service, or for many years thereafter, nor is it shown to be the result of his military service or any incident therein. CONCLUSION OF LAW Hearing loss was not incurred in or aggravated by active service, and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309, 3.385 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA) VA has duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and 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. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The United States Court of Appeals for Veterans Claims (Court) has held that the VCAA notice requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As previously defined by the courts, those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Upon receipt of an application for "service connection," therefore, VA is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and/or an effective date will be assigned if service connection is awarded. In correspondence dated in May 2009 and June 2009, VA informed the Veteran of what evidence was required to substantiate his claim of service connection for hearing loss, and his and VA's respective duties for obtaining evidence. It also notified him that a disability rating and effective date would be assigned, in the event of award of the benefit sought, as required by the Court in Dingess/Hartman. In Pelegrini, the Court held that compliance with 38 U.S.C.A. § 5103 required that VCAA notice be provided prior to an initial unfavorable AOJ decision. Because VCAA notice in this case was completed prior to the initial AOJ adjudication denying the claims, the timing of the notice complies with the express requirements of the law as found by the Court in Pelegrini. The content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), and Dingess/Hartman. Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, including the opportunity to present pertinent evidence. The Board also concludes that VA's duty to assist has been satisfied with respect to the issue decided herein. The Veteran's service treatment records and post-service medical records, as well as the Veteran's lay statements, are in the file. The Veteran was also provided a VA audiology examination in July 2009. The Board finds that the VA examination is adequate because the examination findings and opinion, including a rationale for the stated conclusion, are predicated on a clinical examination of the Veteran, a review of his claims file, and consideration of the Veteran's reported history. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders, 129 S. Ct. 1696 (2009). II. Analysis Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b); also see Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013) (holding that the provisions of § 3.303(b), however, only apply to the list of disabilities identified under § 3.309(a)). Service connection for certain chronic diseases, such as sensorineural hearing loss, will be presumed if they are manifest to a compensable degree within the year after active service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.307, 3.309 (2013). Service connection may also be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The threshold for normal hearing is from zer0 to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). The determination of whether a veteran has a service-connectable hearing loss is governed by 38 C.F.R. § 3.385, which states that hearing loss will be considered to be a "disability" when the threshold level in any of the frequencies 500, 1000, 2000, 3000 and 4000 Hertz is 40 decibels or greater; or the thresholds for at least three of these frequencies are 26 decibels or greater; or speech recognition scores are less than 94 percent. 38 C.F.R. § 3.385 (2013). The Veteran asserts that he currently experiences hearing loss that is related to his service. Specifically, he attributes this condition to his military noise exposure from firearms, machine guns, and firing in the range and heavy artillery. The Veteran's September 1958 pre-induction examination noted no abnormalities with regard to his hearing. Whispered voice testing was normal, bilaterally; no audiometric findings were noted. His October 1960 separation examination report reflects that on audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 6000 8000 RIGHT 5 (20) 10 (20) 10 (20) - 10 (15) - 15 (25) LEFT 5 (20) 10 (20) 10 (20) - 15 (20) - 30 (40) (Note: Prior to November 1967, audiometric test results were reported in standards set forth by the American Standards Association (ASA). Those are the figures on the left of each column and are not in parentheses. Since November 1, 1967, those standards have been set by the International Standards Organization (ISO) -American National Standards Institute (ANSI). In order to facilitate data comparison, the ASA standards have been converted to ISO-ANSI standards and are represented by the figures in parentheses.). After separation from service, the Veteran was provided a VA audiology examination in July 2009. The VA examiner indicated that the claims file was reviewed. At the examination, the Veteran reported gradual hearing loss in both ears, with difficulty hearing in background noise and when not facing the talker. He served in the Army from 1959 to 1961. He reported military noise exposure from firearms, machine guns, and firing in the range and heavy artillery, without using of hearing protection. After separation from service, he worked in construction and as a plant worker for 35 years. He was exposed to factory/plant noise with or without the use of hearing protection and noise from construction work and occasional use of lawn equipment without using hearing protection. On the authorized audiological evaluation, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 15 20 20 55 40 LEFT 20 25 50 70 70 Speech audiometry revealed speech recognition ability of 94 percent, bilaterally, using the Maryland CNC word list. The examiner opined that the Veteran's current hearing loss is less likely as not due to noise exposure during military service. In reaching this conclusion, the examiner noted that the Veteran's service treatment records indicated a normal whispered voice test at induction; and normal hearing in the right ear and normal hearing through 4000 Hertz with mild hearing loss at 8000 Hertz in the left ear, at separation. It was noted that due to the limitations of a whispered voice test, the possibility of hearing loss at 8000 Hertz in the left ear at induction could not be ruled out. Further, the Veteran reported unprotected noise exposure post military service in construction and plant work for a total of 35 years. Based on the foregoing, the examiner concluded that it was more likely that the Veteran's current hearing loss was due to occupational noise exposure. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for hearing loss. There is currently diagnosed hearing loss meeting the requirements set forth in 38 C.F.R. § 3.385. See Degmetich v. Brown, 104 F.3d 1328, 1333 (Fed. Cir. 1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). However, the Veteran has not asserted continuity of symptomatology with respect to his current hearing loss. Indeed, the Veteran reported gradual hearing loss in both ears at the July 2009 VA examination. The Veteran argues that he suffered noise exposure in service. His lay testimony regarding his military noise exposure and observable symptoms are competent and credible evidence. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his personal knowledge). Further, the Board has no reason to question the credibility of the Veteran's contentions regarding his extensive noise exposure from firearms, machine guns, and firing in the range and heavy artillery while serving in the Army, as the claimed military noise exposure is consistent with the circumstances of his service given his military occupational specialty (MOS) as a rocket crewman, as shown by his Form DD-214. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007) (holding that as a finder of fact, the Board, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the Veteran, and the Veteran's demeanor when testifying at a hearing). Nevertheless, there is no indication that such exposure resulted in any injury. In this regard, despite the fact of a slight hearing loss at 8000 Hertz in the left ear on his separation examination, the July 2009 VA examiner's findings do not reflect that this represented the onset of a chronic disease. Furthermore, the evidence of record does not include a competent medical opinion linking the Veteran's hearing loss to his active duty service, to include as due to in-service noise exposure. The only medical evidence of record which addresses the etiology of the Veteran's hearing loss is the July 2009 VA audiology examination report which stated that the Veteran's current hearing loss is more likely due to his occupational noise exposure for the 35 years. The Veteran contends that he has hearing loss related to his service. However, his statements are not competent evidence to establish medical etiology in this case. In certain instances, lay testimony may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, while military noise exposure is not disputed in this case, the question of whether the Veteran's current hearing loss was caused by his in-service noise exposure or by some other causes does not lie within the range of common experience or common knowledge, but requires special experience or special knowledge in the field of audiology. It is not shown that the Veteran is otherwise qualified through specialized education, training or experience to offer a medical etiological opinion. Moreover, substantial probative weight is given to the opinion of the July 2009 VA examiner who specialized in the field of audiology. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (holding that the Board is prohibited from substituting its own medical judgment in place of the opinions of competent medical professionals). There is therefore no other medical evidence of record showing that the Veteran's current hearing loss was caused by his military service, and the Board may not accept unsupported lay speculation with regard to medical issues. Accordingly, service connection for hearing loss is not warranted on a direct basis. Additionally, the evidence of record does not support a finding that the Veteran's sensorineural hearing loss manifested to a compensable degree within one year following his military separation. As such, hearing loss may not be presumed to have been incurred in service as a chronic disease. 38 C.F.R. §§ 3.307, 3.309. The Board has considered the benefit of the doubt doctrine when making these findings, but the preponderance of the evidence is against the Veteran's claim. 38 U.S.C.A. 5107(b); 38 C.F.R. § 3.012; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for hearing loss is denied. REMAND Depression, Sleep Apnea Based upon its review of the Veteran's claims file, the Board finds there is a further duty to assist the Veteran with his claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In disability compensation claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). The third prong, which requires that the evidence of record "indicates" that the claimed disability or symptoms "may be" associated with the established event, is a low threshold. McLendon, 20 Vet. App. at 83. Here, the Veteran contends that he experiences depression due to chronic groin pain, a symptom caused by his service-connected chronic variocele of the left scrotum. In addition, the Veteran submitted a September 2010 letter from his private psychiatrist stating that "[the Veteran's] [service-connected] tinnitus is severely aggravating his [m]ajor [d]epression." Similarly, the Veteran claims in the November 2013 IHP that the sleep apnea is secondary to service-connected variocele. Alternatively, he claimed in May 2009 that his sleep apnea is due to depression. To that effect, a disability which is proximately due to or results from another disease or injury for which service connection has been granted shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a) (2013). When aggravation of a veteran's nonservice-connected condition is proximately due to or the result of a service-connected condition, such veteran shall be compensated for the degree of disability (but only that degree) over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). Although a private psychiatrist indicated that the Veteran has major depression there is no medical evidence showing a clinical diagnosis of major depression. Likewise, there is no current medical diagnosis of sleep apnea. The Board observes that the medical evidence currently of record is, indeed, very limited. The Veteran has never been afforded a VA examination in conjunction with these claims, and the Board finds that VA examinations are necessary to adequately decide the merits of the claims, based on the Veteran's competent lay statements regarding his depression and sleep apnea, as well as the September 2010 letter from his private psychiatrist attesting to the relationship between the Veteran's depression and the service-connected tinnitus. McLendon, 20 Vet. App. at 83; also see Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) (holding that a lay witness is competent to testify to that which the witness has actually observed and is within the realm of his or her personal knowledge). The Board also points out that the VA examinations must specifically address the claimed secondary relationship between any current depression/sleep apnea found and the Veteran's service-connected disabilities. The RO should also take this opportunity to obtain any outstanding medical records relevant to the claims, specifically including any records from Dr. P.Y. who provided the September 2010 letter. Erectile Dysfunction, Chronic Variocele of the Left Scrotum A statement of the case (SOC) has not been issued addressing the issue of service connection for erectile dysfunction, to include as secondary to service-connected chronic variocele of the left scrotum, and the downstream issue of entitlement to a compensable initial rating for service-connected chronic variocele of the left scrotum. In Manlincon v. West, 12 Vet. App. 238 (1999), the Court held that where a NOD is filed but a SOC has not been issued, the Board must remand the claims to the AOJ so that a SOC may be issued. Accordingly, each of these issues must be remanded so that the AOJ may issue a SOC. Accordingly, the case is REMANDED for the following actions: 1. The RO must request that the Veteran identify all VA and non-VA medical providers who have treated him for his depression, sleep apnea, erectile dysfunction and chronic variocele of the left scrotum since his discharge from the service. The RO must then obtain copies of the related medical records that are not already in the claims folder. In particular, records should be requested from Dr. P.Y. who appears to have provided psychiatric treatments for the Veteran and provided the September 2010 letter. All attempts to secure this evidence must be documented in the claims file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; and (c) describe any further action to be taken by the RO with respect to the claims, and (d) that he is ultimately responsible for providing the evidence. The Veteran and his representative must then be given an opportunity to respond. 2. Following completion of the above requested action, schedule the Veteran for a VA psychiatric examination in order to determine whether the Veteran has any current psychiatric disability that is related to his military service, or his service-connected tinnitus or chronic variocele of the left scrotum. The claims file should be made available to the examiner in conjunction with the examination. Pertinent documents should be reviewed, including service treatment records and the Veteran's statements. Any and all indicated evaluations, studies, and tests should be accomplished. The examiner should provide an opinion regarding as to whether it is at least as likely as not (50 percent or greater probability) that any current psychiatric disability, including depression, is related to service. The examiner should also offer an opinion as to whether any current psychiatric disability, including depression, is at least as likely as not (i.e. 50 percent probability or more) either proximately caused by or aggravated by one or more of his service-connected disabilities, specifically including tinnitus and/or chronic variocele of the left scrotum. Aggravation is defined as permanent worsening beyond the natural progression of the disease. A complete rationale for all opinions expressed should be provided. In rendering the opinion, the VA examiner is asked not rely solely on the lack of documentation of treatment in service as the basis for an opinion concerning etiology. The examiner is also asked to review and consider the September 2010 letter from the Veteran's private psychiatrist, P.Y., M.D. 3. Also, schedule the Veteran for a VA examination to determine the nature and etiology of any current sleep apnea. The claims file should be made available to the examiner in conjunction with the examination. Pertinent documents should be reviewed, including service treatment records and the Veteran's statements. Any and all indicated evaluations, studies, and tests should be accomplished. The examiner should provide an opinion regarding as to whether it is at least as likely as not (50 percent or greater probability) that any current sleep apnea is related to service. The examiner should also offer an opinion as to whether any current sleep apnea is at least as likely as not (i.e. 50 percent probability or more) either proximately caused by or aggravated by depression or one or more of his service-connected disabilities, specifically including chronic variocele of the left scrotum. Aggravation is defined as permanent worsening beyond the natural progression of the disease. A complete rationale for all opinions expressed should be provided. In rendering the opinion, the VA examiner is asked not rely solely on the lack of documentation of treatment in service as the basis for an opinion concerning etiology. 4. Issue a statement of the case, and notify the Veteran of his appellate rights, with respect to the issues of entitlement to service connection for erectile dysfunction and entitlement to a compensable initial rating for chronic variocele of the left scrotum. 38 C.F.R. § 19.26 (2013). In the notice and statement of the case, remind the Veteran that a timely substantive appeal to the March 2013 rating decision to the extent it denied these issues must be filed if such issues are denied in the SOC in order to continue the appeal. 38 C.F.R. § 20.202 (2013). If, and only if, the Veteran perfects an appeal as to any of these issues, return these issues to the Board for appellate review. 5. Finally, after completing the above development, and any other development deemed necessary, readjudicate all claims remaining on appeal taking into consideration any newly acquired evidence. If any benefit sought on appeal remains denied, provide an additional supplemental statement of the case to the Veteran, and return the appeal to the Board for appellate review, after the Veteran and his representative have had an adequate opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013). ______________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs