Citation Nr: 1544682 Decision Date: 10/20/15 Archive Date: 10/29/15 DOCKET NO. 10-37 930 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a chronic nasal condition other than allergic rhinitis, to include as secondary to service-connected allergic rhinitis. 2. Entitlement to an initial disability rating in excess of 20 percent for service-connected cervical spine disorder. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1979 to May 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas. In August 2012, a hearing was held before a Veterans Law Judge (VLJ). The VLJ who presided at this hearing has since retired from the Board, and the Veteran was informed in a February 2014 letter of his right to present testimony at another hearing before a VLJ. The Veteran failed to respond within 30 days and the Board will assume the Veteran does not wish to appear at another hearing and will proceed accordingly. A transcript of the August 2012 hearing is associated with the claims file. In a February 2009 rating decision, the RO denied service connection for sinusitis. Pertinent VA treatment records were added to the claims file within one year of that decision. Thus, the February 2009 rating decision is not considered final, as the evidence submitted within a year of that date is new and material to the claim, and is considered to be the proper rating decision on appeal. Buie v. Shinseki, 24 Vet. App. 242, 242-52 (2010). To ensure that the full scope of the Veteran's claim is considered, the Board has recharacterized the service connection claim as entitlement to service connection for a chronic nasal disorder other than allergic rhinitis. Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). In May 2014, the Board denied entitlement to an initial rating in excess of 20 percent for a cervical spine disability and remanded entitlement to service connection for a chronic nasal condition other than allergic rhinitis. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a January 2015 joint motion for remand (JMR), the Court vacated the Board's decision and remanded the matter for compliance with the terms of the JMR. As discussed below, the AOJ substantially complied with the Board's remand instructions regarding the service connection claim and the Board can proceed to adjudicate the appeal. Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The probative evidence of record is against a finding that the Veteran has a chronic nasal condition other than allergic rhinitis that is related to service, or caused or aggravated by service-connected allergic rhinitis. 2. Given the Veteran's pain and corresponding functional impairment, together with the ameliorative effects of medication and treatment to treat the disability, the Veteran's cervical spine disorder has been productive of limitation of flexion to 15 degrees or less throughout the appeal; without evidence of ankylosis or incapacitating episodes of intervertebral disc syndrome of at least four weeks. CONCLUSIONS OF LAW 1. Service connection for a chronic nasal condition other than allergic rhinitis is not warranted. 38 U.S.C.A. §§ 1110, 1131, 1154(a) (West 2014); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2014). 2. Effective July 23, 2008, the criteria for a disability rating of 30 percent, and no more, for service-connected cervical spine disorder have been met. 38 U.S.C.A. §§ 1155, 5103A (West 2014); 38 C.F.R. §§ 3.102, 4.10, 4.40, 4.45, 4.71a (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify VA has a duty to provide notice of the information and evidence necessary to substantiate a claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014). In regards to the service connection claim, standard August 2008 and March 2009 letters satisfied the duty to notify provisions. The Veteran's claim for a higher rating for his cervical spine disorder arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2014). The Veteran's service treatment records, post-service VA and private treatment records, and Social Security Administration records, have been obtained and considered. The Veteran has not identified any additional outstanding records specifically related to the claim that VA should seek to obtain on his behalf. In July 2014, the Veteran specifically stated that he had no additional evidence to submit. The Veteran was afforded VA examinations in December 2008 and July 2014 for his service connection claim. A May 2015 Veterans Health Administration (VHA) opinion was also obtained. The December 2008 and July 2014 VA examiners reviewed the claims file and conducted a thorough review of the claims file. The VHA evaluator also conducted a thorough review of the claims file. When read together, these reports provide an adequate opinion regarding service connection for chronic nasal condition other than allergic rhinitis as the medical conclusions were supported by a thorough rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). As these examination reports, when read together, provide an adequate opinion regarding the Veteran's service connection claim, the Board finds that the remand directives of the May 2014 Board remand have been satisfied. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran was afforded VA examinations for his cervical spine disorder in December 2008, April 2009, October 2010, July 2011, and April 2012. These examination reports, when read together, are adequate to determine the nature and severity of the Veteran's cervical spine symptoms as the examiners reviewed pertinent medical records, conducted an appropriate evaluation of the Veteran, and recorded examination findings as to the severity and the extent of the Veteran's cervical spine symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board acknowledges the January 2015 JMR, which stated that the Board failed to provide adequate reasons and bases to support its findings that the April 2012 VA examination report was adequate despite not having an opinion about the degree of additional loss of range of motion during flare-ups. Although the April 2012 VA examination report did not specifically discuss the Veteran's functional loss due to flare-ups, the Board finds that the December 2008, April 2009, October 2010, and July 2011 VA examination reports specifically address the Veteran's lay statements regarding flare-ups of the cervical spine. Although the VA examiners do not provide an opinion regarding the specific degree of range of motion lost due to flare-ups, the examination reports, when read together, provide the Board the information necessary to determine the impact of the Veteran's functional loss. Moreover, in this decision, the Board finds that a 30 percent rating for cervical spine is warranted during the entirety of the appeal. Thus, remand for an additional examination to discuss functional loss due to flare-ups would be unnecessary as a rating in excess of 30 percent for cervical spine disability requires a diagnosis of ankylosis. The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of his increased rating claim for cervical spine disorder and service connection claim for chronic nasal condition. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the VLJ who conducted the hearing identified the issues to the Veteran and asked specific questions directed at identifying whether the Veteran met the criteria for service connection and for an increased rating. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claims for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. Service Connection Claim Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. To establish service connection on a secondary basis, three elements must be met: (1) current disability; (2) service-connected disability; and (3) nexus between current disability and service-connected disability. Wallin v. West, 11 Vet. App. 509 (1998). The presence of a current disability is a requirement to establish a service connection claim. The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The Veteran is currently service-connected for allergic rhinitis. He contends that he has a chronic nasal condition other than allergic rhinitis that either began in service or was aggravated by his service-connected allergic rhinitis. See August 2012 Board hearing transcript. The Veteran's service treatment records reveal that he was treated for sinusitis and sinus congestion in service. He was afforded a VA examination in December 2008 in order to determine whether he had a current chronic nasal condition that is related to service. Upon physical examination, the examiner noted that the Veteran had normal ear canals and tympanic membranes and that he did not have pain upon palpation of the paranasal sinuses. An x-ray report revealed normal paranasal sinuses. The examiner diagnosed the Veteran with allergic rhinitis and stated that there was no evidence of chronic sinusitis or recurrent purulent sinusitis in the claims file or on the x-ray report. Based on the December 2008 VA examination report, the RO granted service connection for allergic rhinitis in February 2009 but denied service connection for allergic sinusitis on the basis that the Veteran did not have a current diagnosis of the disorder. The Veteran then submitted a February 2011 letter from his private doctor. The letter noted that the Veteran was reevaluated on September 2010 and that he has allergic rhinitis, as well as symptoms consistent with allergic sinusitis, allergic conjunctivitis, and allergic cough. In May 2014, the Board remanded the service connection claim in order to afford the Veteran a new VA examination to address the newly submitted private treatment records. The Veteran was afforded a VA examination in July 2014. The examiner acknowledged that the Veteran had a past diagnosis of sinusitis, but found that he currently had a diagnosis of rhinitis. A July 2014 x-ray report revealed normal paranasal sinuses and the examiner stated that there was no radiographic documentation or evidence of chronic sinusitis in the claims file. The examiner opined that there was no additional nasal condition such as sinusitis diagnosed and that it was less likely than not that any related symptoms other than those of allergic rhinitis in nature had its onset in service or is otherwise etiologically related to service. Moreover, the examiner opined that there was no evidence that the Veteran had a chronic nasal condition that was caused or aggravated by service-connected allergic rhinitis. The Board in February 2015 requested an additional medical opinion. A May 2015 VHA opinion was provided. A specialist opined that the Veteran "does not have a chronic nasal disorder other than allergic rhinitis." The May 2015 evaluator acknowledged the Veteran's private treatment records which include a diagnosis of sinusitis, but the evaluator concluded that the diagnosis was rendered without history, physical findings, or x-ray reports that would support a diagnosis. The evaluator reviewed the Veteran's service and post-service treatment records and opined that it was less likely than not that the Veteran had a chronic nasal disorder that had its onset in service or is otherwise etiologically related to service. When read together, the Board finds that the December 2008 VA examination report, the July 2014 VA examination report, and the May 2015 VHA opinion are highly probative evidence that the Veteran does not have a chronic nasal disorder other than allergic rhinitis that is related to service, or is caused or aggravated by his service-connected allergic rhinitis. The May 2015 VHA opinion specifically reviewed the Veteran's private treatment records but concluded that there was no diagnostic evidence of sinusitis or of any chronic nasal condition other than allergic rhinitis. In light of the foregoing, the Board must conclude that the preponderance of the evidence is against a finding that the Veteran has a chronic nasal disorder other than allergic rhinitis that is related to service, or is caused or aggravated by service-connected allergic rhinitis. Accordingly, service connection for a chronic nasal disorder other than allergic rhinitis is denied. Increased Rating Claim Disability ratings are determined by applying the criteria set forth in the 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; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71, Diagnostic Codes 5235-5242 (2014). Intervertebral disc syndrome is rated under the general formula for rating diseases and injuries of the spine or under the Formula for Rating Intervertebral Disc Disease Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. See Plate V, 38 C.F.R. § 4.71a. The Veteran is currently rated at 20 percent for his cervical spine disorder under the general rating formula specified in 38 C.F.R. § 4.71a. In order to warrant a disability rating in excess of 20 percent under this formula, the evidence must show: forward flexion of the cervical spine to 15 degrees or less or favorable ankylosis of the entire cervical spine (30 percent); or unfavorable ankylosis of the entire cervical spine (40 percent); or unfavorable ankylosis of the entire spine (100 percent) with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury and disease. 38 C.F.R. § 4.71a, Diagnostic Code 5243, also is potentially applicable to the Veteran's spine disability. It addresses intervertebral disc syndrome (IVDS). Pursuant to this Code, IVDS is rated under either the General Rating Formula outlined above or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Formula for Rating IVDS), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. A 20 percent evaluation is for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. Incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months results in award of a 40 percent evaluation. The maximum 60 percent evaluation is awarded for incapacitating episodes having a total duration of at least six weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Formula for Rating IVDS, Note (1). Each spinal segment manifesting clearly distinct effects of IVDS is to be rated separately. Id., Note (2). The Veteran is currently service-connected for a cervical spine disorder and assigned a 20 percent disability rating from July 23, 2008. The Veteran contends that he is entitled to a higher rating due to limited range of motion and functional loss. The Veteran was afforded a VA examination in December 2008. It was noted that he had forward flexion to approximately 18 to 20 degrees and that he had functional impairment that impacted his ability to bend and twist his neck. An April 2009 VA examination report noted that the Veteran had forward flexion to 20 degrees with "discomfort and pain throughout all range of motion exercises. . ." The Veteran reported that during flare-ups, he cannot lift above his head and that he has limited range of motion. A February 2010 VA treatment record noted that the Veteran had forward flexion of the cervical spine to approximately 15 degrees. An August 2010 letter from the Veteran's private doctor noted that the Veteran wore a soft cervical collar and that he had forward flexion to 10 degrees with pain at the extremes of motion for all range of motion. The Veteran was afforded an October 2010 VA examination. The Veteran described that he has flare-ups of the neck when he lifts objects over his head. It was noted that he had forward flexion to 20 degrees with pain at extreme range of motions in all directions. A July 2011 VA general examination report noted that the Veteran's limitations include limited flexion and extension of his neck, limited overhead work, no lifting, pushing, or pulling of 10 pounds or more. He had forward flexion to 25 degrees with discomfort throughout the range of motion exercise. The Veteran was also afforded a VA examination in April 2012. He had forward flexion of the cervical spine to 30 degrees. The examiner noted that the Veteran had functional loss that included less movement than normal, weakened movement, pain on movement, and interference with standing and weight-bearing. The Veteran's VA treatment records reveal chronic neck pain and limited flexion with painful motion. He had epidural injections of the cervical spine in November 2011 and April 2012. See February 2012 and April 2012 VA treatment records. After resolving reasonable doubt in favor of the Veteran, the Board finds that a 30 percent rating is warranted throughout the entirety of the appeal. The Veteran had forward flexion of the cervical spine to 15 degrees or less in February 2010 and August 2010, which warrants a 30 percent rating under the general formula for the cervical spine. See February 2010 VA treatment record and August 2010 private treatment record. Although the Veteran did not have such limited forward flexion throughout the entirety of the appeal, painful movement must be taken into account when rating a disability based on limitation of motion. DeLuca, 8 Vet. App. at 205-206. To receive disability compensation for painful motion, that pain must result in functional loss, i.e., limitation in the ability to "perform the normal working movements of the body with normal excursion, strength, speed, coordination or endurance." See 38 C.F.R. § 4.40; see also Mitchell, 25 Vet. App. at 38. Here, the Veteran has symptoms of painful motion throughout the appeal, to include the April 2009, October 2010, and July 2011 VA examination reports. The April 2012 VA examination report specifically noted that the Veteran had functional loss that included less movement than normal, weakened movement, pain on movement, and interference with standing and weight-bearing. Additionally, the Veteran has provided competent and credible testimony that he experiences flare-ups and that he has difficulty moving his head side to side and looking up and down. He further testified that he receives epidural shots as treatment for his cervical spine disorder. See August 2012 Board hearing transcript. Moreover, he testified during the August 2012 hearing that his doctors have recommended surgery of the cervical spine but that he has declined an operation at this time. His reports epidural shots are supported by the medical evidence of record and indicate that it provides limited ameliorative effects. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria). Thus, in light of Mitchell, a 30 percent rating is warranted for the entirety of the appeal. The preponderance of the evidence is against a finding that a rating in excess of 30 percent is warranted as there is no evidence of ankylosis. Ankylosis is immobility and consolidation of a joint. See Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007); see also Lewis v. Derwinski, 3 Vet. App. 259 (1992). Although the Veteran reported during his October 2010 VA examination that his range of motion is limited to zero degrees during a flare-up, the medical evidence of record provides no indication that the Veteran has ankylosis. See July 2012 VA examination report. His range of motion of the cervical spine has not been recorded to be less than 10 degrees at any time during the appeal period. There is also no evidence that the Veteran's cervical spine disorder has resulted in IVDS with incapacitating episodes having a total duration of at least four weeks during the past 12 months. Although the April 2009 VA examination report noted that the Veteran missed approximately three days of work in the past 12 months due to neck discomfort, the April 2012 VA examiner specifically noted that the Veteran did not have IVDS. Moreover, there is no evidence that the Veteran has had physician prescribed bed rest totalling at least four weeks. As such, a higher rating is not warranted. With regard to the question of whether a separate compensable rating is warranted for neurological symptoms related to the cervical spine disorder, the RO issued a decision in April 2012 that assigned a separate 20 percent rating for left upper extremity radiculopathy. The Veteran has not appealed that decision. He has also not identified any other symptoms that he specifically attributes to his cervical spine disorder and none are identified by the record. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2014). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplates the Veteran's disability. For all musculoskeletal disabilities, the rating schedule contemplates functional loss, which may be manifested by, for example, decreased or abnormal excursion, strength, speed, coordination, or endurance. 38 C.F.R. § 4.40; Mitchell, 25 Vet. App. 32, 37. For disabilities of the joints in particular, the rating schedule specifically contemplates factors such as weakened movement; excess fatigability; pain on movement; disturbance of locomotion; and interference with sitting, standing, and weight bearing. 38 C.F.R. §§ 4.45, 4.59; Mitchell, 25 Vet. App. at 37. Although the Board acknowledges the Veteran's statements that he has difficulty moving his neck, such complaints are contemplated by the rating schedule given the variety of ways in which the rating schedule contemplates functional loss for musculoskeletal disabilities. Thun, 22 Vet. App. at 115. Although the Veteran is in receipt of TDIU due to the impact of his service-connected disabilities, review of the record does not reveal an aggregate effect of the Veteran's service-connected disabilities so as to warrant an extraschedular referral. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The rating criteria are therefore adequate to evaluate the Veteran's cervical spine disorder and referral for consideration of extraschedular rating is not warranted. The Board recognizes that the Court has clarified that a claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities exists as part of a claim for an increase rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). In Locklear v. Shinseki, the Court distinguished the instant case from Rice and recognized that VA's Secretary had the authority to specifically separate the adjudication of the schedular disability rating from the adjudication of entitlement to TDIU. The Court held that "[b]ifurcation of a claim generally is within the Secretary's discretion." See Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011). Here, the record reflects that the Veteran was notified in May 2012 of the RO's decision to grant entitlement to TDIU, effective October 28, 2010, the date the Veteran last worked full-time. Subsequently, the Veteran has not submitted a notice of disagreement with respect to the assigned effective date. Thus, the Board does not have jurisdiction over the claim as the claim of entitlement to TDIU was separately adjudicated and has not been perfected for appellate review. ORDER Service connection for a chronic nasal condition other than allergic rhinitis, to include as secondary to service-connected allergic rhinitis, is denied. Effective July 23, 2008, a 30 percent disability rating for service-connected cervical spine disorder is granted, subject to the applicable criteria governing the payment of monetary benefits. ____________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs