Citation Nr: 1341980 Decision Date: 12/19/13 Archive Date: 12/31/13 DOCKET NO. 12-20 143 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUE 1. Entitlement to a rating in excess of 60 percent for neurological impairment to the left lower extremity due to limb girdle muscular dystrophy. 2. Entitlement to a rating in excess of 60 percent for neurological impairment to the right lower extremity due to limb girdle muscular dystrophy. 3. Entitlement to a rating in excess of 40 percent for kyphosis and scoliosis of the thoracolumbar spine. 4. Entitlement to a rating in excess of 10 percent for neurological impairment of the abdominal muscles due to limb girdle muscular dystrophy. 5. Whether there was clear and unmistakable error (CUE) in a February 5, 1997 rating decision denying entitlement to a rating in excess of 20 percent residuals of anterior poliomyelitis. 6. Entitlement to an effective date earlier than November 30, 2005 for a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Allison N. Powers, Attorney WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran had active service from October 1951 to September 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2006 and April 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. In May 2013, the Veteran testified at a personal hearing via video conference conducted from the Marion, Illinois VA Medical Center, before the undersigned. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. On May 22, 2013, at his hearing, the Veteran requested a withdrawal of his first four issues: entitlement to a rating in excess of 60 percent for neurological impairment to the left lower extremity due to limb girdle muscular dystrophy; entitlement to a rating in excess of 60 percent for neurological impairment to the right lower extremity due to limb girdle muscular dystrophy; entitlement to a rating in excess of 40 percent for kyphosis and scoliosis of the thoracolumbar spine; and entitlement to a rating in excess of 10 percent for neurological impairment of the abdominal muscles due to limb girdle muscular dystrophy. 2. The February 5, 1997 rating decision which denied an increased rating for residuals of anterior poliomyelitis of the left shoulder (later recharacterized as limb girdle muscular dystrophy), was not final and remained pending. 3. The Veteran meets the schedular criteria for TDIU from August 28, 1996 and the Veteran's service-connected disability (limb girdle muscular dystrophy) precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a Substantive Appeal by the Veteran as to the issues of entitlement to a rating in excess of 60 percent for neurological impairment to the left lower extremity due to limb girdle muscular dystrophy; entitlement to a rating in excess of 60 percent for neurological impairment to the right lower extremity due to limb girdle muscular dystrophy; entitlement to a rating in excess of 40 percent for kyphosis and scoliosis of the thoracolumbar spine; and entitlement to a rating in excess of 10 percent for neurological impairment of the abdominal muscles due to limb girdle muscular dystrophy, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002 & Supp. 2012); 38 C.F.R. §§ 20.202, 20.204 (2013). 2. The RO's February 5, 1997 rating decision which denied an increased rating for residuals of anterior poliomyelitis of the left shoulder (later recharacterized as limb girdle muscular dystrophy), is not final. 38 U.S.C.A. § 7105 (West 2002 & Supp. 2012). 3. Effective August 28, 1996, the Veteran is individually unemployable by reason of his service-connected disability. 38 U.S.C.A. §§ 1155, 5107, § 5110(b)(2) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.400(o)(2), 3.340, 3.341(a), 4.16, 4.25, 4.124a, Diagnostic Code 8023 (1996-2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawn Issues Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A Substantive Appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. The Veteran has withdrawn his appeal as to the issues of entitlement to an increased rating for neurological impairment to the left lower extremity due to limb girdle muscular dystrophy; entitlement to an increased rating for neurological impairment to the right lower extremity due to limb girdle muscular dystrophy; entitlement to an increased rating for kyphosis and scoliosis of the thoracolumbar spine; and entitlement to an increased rating for neurological impairment of the abdominal muscles due to limb girdle muscular dystrophy. Hence, there remain no allegations of errors of fact or law for appellate consideration as to those matters. Accordingly, the Board does not have jurisdiction to review the appeal on those issues and it is dismissed. CUE in the February 5, 1997 Rating Decision There has been a significant change in the law with the enactment of the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. The Veteran's claim is being granted. As such, any deficiencies with regard to VCAA are harmless and nonprejudicial. A final rating decision may be revised only upon a showing that it was clearly and unmistakably erroneous. See 38 U.S.C.A. §§ 5108, 5109A; 38 C.F.R. §§ 3.104, 3.105, 3.156(a); Manio v. Derwinski, 1 Vet. App. 140 (1991). Pursuant to 38 C.F.R. § 3.104(a), "[a] decision of a duly constituted rating agency . . . shall be final and binding . . . based on evidence on file at the time and shall not be subject to revision on the same factual basis." See also 38 U.S.C.A. § 5108. An exception to this rule is when the VA has made a clear and unmistakable error in its decision pursuant to 38 C.F.R. § 3.105. See also 38 U.S.C.A. § 210(c), 7103. The Veteran and his representative claim that there was CUE in the RO's February 5, 1997 rating decision. Therefore, the Board must initially address if this rating decision was in fact unappealed and final. A review of the record historically shows that the RO granted service connection for residuals of anterior poliomyelitis of the left shoulder in an April 1954 rating decision. A 20 percent rating was assigned. A July 1959 rating decision confirmed and continued this rating. On October 24, 1996, a claim for an increased rating was received as well as a claim for service connection for back disability including scoliosis. Thereafter, VA medical records were received. An August 28, 1996 evaluation included the assessment to rule out residual polio versus limb girdle muscular dystrophy. A November 1996 record noted that the Veteran had post-polio syndrome versus intracranial degeneration with further testing and follow-up ordered. The Veteran complained of left upper and lower limb weakness which had worsened in the past 5 years, causing unsteadiness of the left lower extremity and fine motor movement impairment of the left upper extremity. He demonstrated decreased strength. In December 1996, the Veteran was afforded a VA examination. At that time, it was noted that he had mild atrophy. No muscle herniation was shown. Range of motion of the back revealed forward flexion to 90 degrees, backward extension to 30 degrees, left and right lateral flexion to 35 degrees, and right and left rotation to 35 degrees. The diagnoses were proximal muscle dystrophy, etiology unknown, and history of possible poliomyelitis syndrome. The back diagnoses were lumbar spondylosis and degenerative disc disease. Thereafter, a February 5, 1997 rating decision denied an increased rating for the left shoulder disability (which it erroneously initially indicated was rated as 10 percent disabling). The denial was based on a finding that the Veteran only had mild atrophy of the shoulder with fair to good muscle strength with no evidence of pain or muscle herniation. A "notice of disagreement" was not received from the Veteran. However, additional evidence was received in that VA medical records reflect treatment not only prior to the rating decision, but in the one year thereafter. In the April 2009 rating decision, the RO indicated that some of the Veteran's VA medical records dated in December 1996 as well as a January 6, 1997 electromyography (EMG) were not physically of record at the time of the February 1997 decision. Also, after that decision was rendered, the Veteran had additional VA medical treatment within one year, but those records were also not physically of record. However, all of these records were constructively of record for VA purposes. See Bell v. Derwinski, 2 Vet. App. 611 (1992). Thus, additional evidence was received (constructively) within one year of the February 5, 1997 decision. New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed (including evidence received prior to an appellate decision and referred to the agency of original jurisdiction by the Board without consideration in that decision in accordance with the provisions of § 20.1304(b)(1)), will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has found that 38 C.F.R. § 3.156(b) requires that VA evaluate submissions received during the relevant period to determine whether they contain new and material evidence relevant to a pending claim, even if the new submission may support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1367-8 (Fed. Cir. 2011). Significantly, absent any indication in the record that this analysis occurred, the Federal Circuit explained that it was particularly reluctant to presume that the VA considered, but rejected, the possibility that a submission contained new and material evidence relating to an earlier claim. Id. at 1368. The Federal Circuit noted VA's statutory obligation to provide a written statement of its findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record. Id. The additional evidence, discussed below, showed that the Veteran had limb girdle dystrophy, and symptoms which were pertinent to the matter of an increased rating which was being considered in the February 1997 rating decision. Thus, the evidence was new and material and the February 5, 1997 rating decision as to the denial of an increased rating did not become final. Bond, 659 F.3d at 1362; 38 C.F.R. § 3.156(b). Thus, since the February 5, 1997 rating decision was not final, the Veteran need not show that there was CUE in that rating decision; rather, the matter of an increased rating remained pending and will be addressed herein. Unlike claims for CUE, the Board may consider all of the evidence of record with regard to the increased rating claim. The Veteran and his representative clearly set forth the contentions in this case at the hearing. They basically assert that the Veteran's muscular dystrophy disability had worsened to the point of total disability when he filed a claim (received in October 1996) prior to the February 1997 rating decision. They maintain that he therefore should be retroactively granted a total rating. Although these arguments were asserted within the context of the CUE claim, they also apply to the increased rating claim. Since, as discussed in detail below, the Veteran was service-connected for residuals of anterior poliomyelitis, determined to actually be limb girdle muscular dystrophy, his claim for a higher rating in October 1996 encompassed more than the left shoulder, but rather all manifestations of that disability, as provided by the rating criteria under Diagnostic Code 8023. The other matter on appeal, entitlement to an to an effective date earlier than November 30, 2005 for a TDIU will be considered as part and parcel of the increased rating claim as there was evidence raising that matter dating back to when the claim was made, as indicated below. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) determined that there is no freestanding claim for TDIU. Id. at 451. Rather, a claim for TDIU is considered part and parcel of the claim for benefits for the underlying disability. Id. at 453-54. Therefore, the Board construes that the issue of entitlement to an increased rating for the service-connected disability also extended to a TDIU claim. In addition, at this juncture, the Board also points out that the benefit being sought by the Veteran and his representative is a retroactive total rating. As set forth below, the Board is granting this benefit, via a retroactive TDIU, rather than a schedular 100 percent rating. The Veteran and his representative discussed at the hearing that the Veteran has been unemployed for many years, dating back to when he made his claim prior to the February 1997 decision which they believe erroneously denied his claim. They also articulated that higher ratings were not being sought at this time, since the Veteran has a schedular 100 percent rating from June 30, 2006; hence with the withdrawn issues above. The Veteran was assigned a TDIU briefly from November 30, 2005 to the date of the schedular 100 percent. As such, the retroactive TDIU being granted below is intended to merge into the other TDIU rating, already assigned. Therefore, the Veteran is entitled to the benefits sought on appeal. Turning to the evidence, the additional December 1996 report (the report not physically in the claims file as of the February 1997 rating decision) again noted the Veteran's odd posture due to his marked lordosis. He had difficulty with stairs. The Veteran demonstrated girdle and trunk weakness. He had a winged scapula. The diagnosis was unclear. His VA physician opined that he was totally and permanently disabled. The January 1997 EMG, performed to determine the diagnosis, revealed that the Veteran had decreased insertional activity. A muscle biopsy was suggested to assist with the current diagnosis. The muscle biopsy was performed on February 24, 1997, and yielded findings of limb girdle dystrophy. Thus, that diagnosis was resolved. An August 1997 report noted that the Veteran had an odd posture with marked lordosis to maintain his posture. He had difficulty going up and down stairs and had to support himself with rails because his hip flexors and knee extensors were weak. He could not lift his arm in abduction beyond 80 degrees. He could not get up from lying flat to a sitting position without help and could not roll over. He was unable to straighten up his torso from his hips if he stooped or bent over for any length of time. He had weakness and pain from spasm from compensating . He had seen neurology for the nerve testing which showed extensive limb girdle and para lumbar muscle deficits. The March 1997 muscle biopsy revealed dystrophic alterations consistent with one of the adult onset dystrophies. Also, he had a winged scapula. In a February 2006 letter, a private physician, B.G.T., M.D., noted that in 1996, the Veteran underwent a muscle biopsy which revealed adult onset muscular dystrophy and in 1996-1997, he was determined to be totally and permanently disabled due to his post-polio syndrome and adult onset muscular dystrophy. The Veteran had neurological consultation which revealed extensive limp girdle and para lumbar muscle deficits. This physician confirmed that the Veteran was completely and totally disabled. An April 2006 VA examination indicated that it had become increasingly evident that the Veteran's symptoms in the military may not have been related to a polio virus as diagnosed. The descriptions of his symptoms and clinical findings with left scapular winging and weakness of the left shoulder found on the June 1952 examination were consistent with limb girdle muscular dystrophy. The examiner noted that the progression of this disease was well defined with progression from the shoulder to the pelvic girdle, or the opposite. The examiner indicated that the Veteran's left lower extremity impairment was due to the limb girdle muscular dystrophy. The Veteran's current symptoms were assessed. In pertinent part, the evidence showed that the Veteran's left arm forward flexion was limited to 25 degrees and his strength was reduced to 2/5. He also demonstrated neurological impairment of the left elbow, left hand, and left fingers. He had decreased range of motion, could not lift more than 5 pounds, decreased sensation, and decreased fine motor movements of the fingers. Both of the lower extremities impaired the Veteran's ability to climb stairs and ambulate. He could not lift his legs and his sensation was decreased. His strength was also reduced in flexion and extension of the hips and knees. In a May 2006 rating decision, the RO increased the Veteran's disability rating for his left shoulder, recharacterized as limb girdle muscular dystrophy to 30 percent, effective December 28, 2005. In addition, this rating decision also granted neurological impairment of the left elbow, left hand, and left fingers, assigned a 30 percent rating from December 28, 2005; and also granted service connection for neurological impairment of the left lower extremity and assigned a 60 percent rating from December 28, 2005, all due to the as limb girdle muscular dystrophy. In a November 2008 rating decision, the RO found CUE in the assigned effective dates, and assigned a new effective date for all actions of November 30, 2005. A TDIU rating was also granted from that date. An April 2009 rating decision also granted service connection for kyphosis and scoliosis of the thoracolumbar spine (40 percent) and neurological impairment of the abdominal muscles (10 percent), both due to limb girdle muscular dystrophy effective from June 30, 2006. As of that date, the Veteran had a schedular total rating. The Veteran was subsequently afforded a VA aid and attendance examination and a private opinion was also submitted in that regard. He was again afforded a full VA examination in November 2011. In March 2012, the RO also granted entitlement to special monthly compensation based on aid and attendance from August 2010. Most recently, a medical opinion letter was received from K.R., M.D., with regard to the Veteran's disability. An examination had been performed by the physician previously, in 2009. This physician noted that in 1996, the Veteran sought VA evaluation after his condition deteriorated. He started to develop proximal left lower limb weakness affecting his ability to climb stairs about 2 years prior to his September 1996 visit to his VA physician. His lordotic posture of the lumbar spine represented weakness of the para-spinal and other truncal muscles and was seen in a number of neuromuscular diseases, including the muscular dystrophies. The physician refereed to the EMG which showed markedly diminished insertional activity in the thoracic and lumbar para-spinal muscles bilaterally as well as the left quadriceps. The physician explained that diminished insertional activity implies "end-stage muscle" where the muscle tissue is replaced by fatty cells, fibrosis, and connective tissues. The question of damage to the nerve (denervation) was raised based on the changes in the motor unit shape and acuity in the left quadriceps muscle. Furthermore, it was documented in an examination in 1997 that the Veteran was unable to sit up from a lying position and could not straighten his back from a bent position. The examiner indicated that the latter was called "camptocormia" and in this case again implied severe weakness of the truncal muscles. His muscle biopsy was done and showed non-specific "myopathic features" which was suggestive for muscular dystrophy such as limb girdle dystrophy. The physician further indicated that the Veteran's neurological status had been gradually progressive and in a March 2009 examination by this physician, he had 1/5 weakness of the proximal thighs meaning that there was barely any muscle strength and absent deep tendon reflexes. The examiner concluded that given the examination findings and the EMG findings, the weakness of the truncal/para-spinal/and abdominal muscles started years before 1996. In the examiner's opinion, the Veteran should have also undergone further respiratory testing, also. Under Diagnostic Code 8023, the minimum rating to be assigned for progressive muscular atrophy is 30 percent. 38 C.F.R. § 4.124a. For the assignment of this minimum rating, it is required that there be ascertainable residuals. Id. at Diagnostic Code 8023. Disability from progressive muscular atrophy and its residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. It is clear that the Veteran has had limb muscular dystrophy. Thus, while he has piecemeal been granted service connection for his spine, lower extremities, left elbow/hand/fingers, and abdominal muscles, the deficits in these areas are actually part and parcel of his overall disability, as manifested in those areas, and the manifestations occurred. The RO rated these areas as part of the Veteran's overall disability from the limb muscular dystrophy. However, the Board must now determine if these disability areas warranted ratings from the earlier claim (1996) for an increased rating per Diagnostic Code 8023. With regard to the October 1996 claim for an increased rating, it is clear that contemporaneous to that claim, and as supported by more recent evidence, the Veteran's spine, abdominal muscles, left upper extremity, and both lower extremities were already affected at that time. With regard to the spine, the rating criteria at the time required certain manifestations to rate the disability at a compensable level. The Veteran had nearly full range of motion. However, his posture was compromised and he had pain and muscle spasms indicating current symptoms. Therefore, the Board finds that a 10 percent rating was in order. 38 C.F.R. §§ 4.1, 4.40, 4.45,4.59, 4.7, 4.71a, Diagnostic Code 8023-5295 (1996). With regard to the abdominal muscles, the Veteran had girdle trunk weakness. The Board finds that this weakness represented moderate disability since the Veteran also could not sit up from the lying down position and it is reasonable that his weakness from the abdominal muscles played a role. As such a 10 percent rating was in order. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.7, 4.73 Diagnostic Code 8023-5319 (1996-2013). With regard to his left shoulder, the Veteran's motion was limited to 80 degrees, or just below his shoulder. He also had a winged scapula. This was his minor extremity. As it was shown in the record that he had impairment of the long thoracic nerve, the Board finds that he was most appropriately rated based on this impairment at 20 percent for incomplete paralysis. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.7, 4.1241a, Diagnostic Code 8023-8519 (1996-2013). A higher rating was not based on limitation of motion as the Veteran's left arm motion was not reduced to 25 degrees from his side. With regard to the left elbow/hand/fingers, the records indicated that the Veteran had left upper extremity weakness and fine motor movement impairment. No specific details were provided in the contemporaneous records, but the Board accepts that mild impairment was shown at that time, warranting a 10 percent rating. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.7, 4.1241a, Diagnostic Code 8023-8511 (1996-2013). With regard to the lower extremities, the Veteran had weakness, was unable to essentially navigate stairs as he had to support himself with rails because his hip flexors and knee extensors were weak. He could not get up from lying flat to a sitting position without help and could not roll over. He was unable to straighten up his torso from his hips if he stooped or bent over for any length of time. He had weakness and pain from spasm from compensating . Dr. K.R. indicated that the weakness exhibited was of a severe level. Severe disability with marked muscular atrophy, (Dr. K.R. also indicated that there was end-stage muscle impairment at that time), warrants a 60 percent rating, on each side. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.7, 4.1241a, Diagnostic Code 8023-8520 (1996-2013). In combining these disabilities per 38 C.F.R. § 4.25, and as directed by Diagnostic Code 8023, the Veteran had a combined schedular 90 percent rating. The evidence also indicated that the Veteran was totally and permanently disabled. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Thus, the Veteran meets the schedular criteria, per 38 C.F.R. § 4.16(a). Thus, the issue is whether his service-connected disabilities preclude him from engaging in substantially gainful employment (i.e., work that is more than marginal, which permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). For the Veteran to prevail in a claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran was unemployed when he filed the October 24, 1996 claim and has remained so. It is clear his unemployability is due to his limb girdle muscular dystrophy. "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date." 38 U.S.C.A. § 5110(b)(2). The implementing regulation summarizes the criteria for an effective date of an award of increased compensation as the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim." 38 C.F.R. § 3.400(o)(2). Thus, if a claim is received after the increase in disability is demonstrated, but the increase occurred within the prior one year period then the effective date will be assigned as of the date of the ascertainable increase. The Board finds that the August 28, 1996 VA medical record showed the increase in disability which is also consistent with the TDIU. Thus, a TDIU is warranted from August 28, 1996. Thus, in sum, the Veteran is retroactively entitled to a schedular 90 percent rating from August 28, 1996 under Diagnostic Code 8023, with each manifestation of the disability being assigned a separate rating, then combined. However, as a TDIU is a greater benefit because a total rating is assigned, the TDIU rating will be granted from August 28, 1996. ORDER Entitlement to a rating in excess of 60 percent for neurological impairment to the left lower extremity due to limb girdle muscular dystrophy, is dismissed. Entitlement to a rating in excess of 60 percent for neurological impairment to the right lower extremity due to limb girdle muscular dystrophy, is dismissed. Entitlement to a rating in excess of 40 percent for kyphosis and scoliosis of the thoracolumbar spine, is dismissed. Entitlement to a rating in excess of 10 percent for neurological impairment of the abdominal muscles due to limb girdle muscular dystrophy, is dismissed. A TDIU is granted from August 28, 1996, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs