Citation Nr: 1549914 Decision Date: 11/25/15 Archive Date: 12/03/15 DOCKET NO. 13-33 306 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease (DDD). 2. Entitlement to a total disability rating due to individual unemployability (TDIU). REPRESENTATION Appellant represented by: Georgia Department of Veterans Services ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran served on active duty from December 1962 to July 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. Jurisdiction of the case was subsequently transferred to the RO in St. Louis, Missouri. The claims were previously remanded by the Board in October 2015. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issue of entitlement to TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Degenerative disc disease of the lumbar spine is manifested, at worst, by forward flexion to 50 degrees, without any findings of ankylosis of the entire thoracolumbar spine. CONCLUSION OF LAW The criteria for an evaluation in excess of 20 percent for the Veteran's lumbar spine disability have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237 (2015). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist With respect to the Veteran's claim, 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2015). Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2015); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA 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; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the claimant provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2009). Thus, any error related to this element is harmless. May and September 2012 VCAA letters fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b)(1) (2015); Quartuccio, at 187. The Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claims. The letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Additionally, the letter described how appropriate disability ratings and effective dates were assigned. The claim was subsequently readjudicated in various supplemental statements of the case, most recently issued in May 2012. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (noting that VA cured its failure to afford statutory notice to the claimant prior to an initial rating decision by issuing a notification letter after the decision, readjudicating the claim, and notifying the claimant of such re adjudication in the statement of the case). VA also has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The record indicates that the RO obtained all information relevant to the Veteran's claim. The service treatment records have been obtained, as well as post-service VA treatment records identified by the Veteran. Additionally, the duty to assist includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4)(i) (2015). The Veteran was provided a VA examinations in January 2013 and July 2015 for his disability claim. The examination reports reflect that the examiners reviewed the claims file, conducted appropriate diagnostic tests and studies, and noted the Veteran's assertions. The Board finds the examination reports to be thorough and complete. Therefore, the Board finds the examination reports and opinions are adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (noting that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). As noted above, the claimed were remanded to the AOJ most recently in June 2015 for additional evidentiary development including obtaining a new medical examination. The AOJ obtained the additional examination in July 2015, and readjudicated the claims in a September 2015 supplemental statement of the case. Accordingly, the remand instructions issued by the Board have been substantially complied with and this matter is once again before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). 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, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). II. Increased Rating A. Laws and Regulations Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2015). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2015). Where there is a question as to which of two evaluations shall be applied, 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. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Court has held that evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See, in general, DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. B. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2015) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Veteran was granted service connection for a thoracic spine disability in a February 2013 RO decision due to an in-service injury. Service treatment records (STRs) include an April 1963 note in which the Veteran reported he hurt his back while lifting a footlocker. The examiner noted he had definite spasm of the E-S muscles, and pain on forward flexion and hyperextension. He was placed on light duty. In a May 1963 clinical note, the Veteran endured a lumbosacral strain when he threw a footlocker on his bunk. In a June 1963 note, the Veteran complained of chronic back pain. The examiner noted he had spasming and pain on hyperextension. An x-ray report was negative. The examiner noted that the Veteran had complained number times of back pain. Physical examination during a July 1963 separation examination showed no abnormalities of the spine. During a June 1973 VA examination, the Veteran reported that he has recurring low back pain with sudden movements. He also reported that stooping or leaning over can cause his back to "go out" and that he has problems getting in and out of a chair or bed. He complained that he cannot lift heavy objects and he cannot work. Upon physical examination, the examiner noted there was no kyphosis or scoliosis. Range of motion of the lumbar spine was not restricted. There was no evidence of any muscle spasm. An x-ray study of the lumbar spine revealed no abnormalities. The examiner noted no orthopedic diagnosis. In a September 2012 statement, the Veteran reported that he has extreme difficulty in lifting even the slightest objects. He stated that his pain has become chronic and severe. He has pain on walking, sleeping, and after just sitting. During a January 2013 VA examination, the examiner noted a diagnosis of degenerative disc disease. The Veteran stated that his lower back pain is progressive and that bending increases the pain. He denied surgeries or new injuries. He complained of flare-ups when he sits "a long time." Range of motion testing revealed forward flexion to 60 degrees with pain at 50 degrees, extension to 20 degrees with pain at 20 degrees, right and left lateral flexion to 20 degrees with pain at 15 degrees, and right and left lateral rotation to 30 degrees without objective painful motion. After repetitive testing, forward flexion was shown to 55 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees, right and left lateral rotation to 30 degrees. The examiner noted no additional imitation of range of motion following repetitive-use testing. The Veteran demonstrated additional function loss after repetitive use consisting of weakened movement, excess fatigability, pain on movement, and interference with sitting, standing, and/or weight-bearing. There was some paraspinal muscle tenderness to deep palpation and left sciatic notch tenderness to deep palpation, but no leg pain or leg numbness. There was no evidence of guarding or muscle spasm. Muscle strength of the lower extremities was normal. Deep tendon reflexes tested normal. Straight leg testing was negative. The Veteran was noted not to have IVDS. The examiner noted that the Veteran's lumbar spine disc disease would not allow for gainful employment that required physical labor. He would only be a candidate for part time sedentary work that would allow for frequent breaks. In a May, July, and December 2013 letters, the Veteran asserted that the pain in his lower back is enormous when sleeping, walking, and even sitting for any length of time. During a July 2015 VA examination, the examiner noted a diagnosis of degenerative arthritis of the spine. The Veteran denied flare-ups and functional loss. Range of motion testing showed forward flexion to 70 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees. The examiner noted that pain on forward flexion was noted on examination but did not result in or cause a functional loss. Repetitive use testing showed no additional loss of ration of motion. There was evidence of muscle spasm, localized tenderness, and guarding but they did not result in abnormal gait or abnormal spinal contour. Muscle strength testing of the lower extremities was normal, as was reflex and sensory examination. Straight leg rising was negative and there was no evidence of radiculopathy. The examiner noted the Veteran does not have a diagnosis of IVDS. The Veteran reported he regularly uses a cane. The examiner indicated the Veteran's thoracolumbar spine condition does not impact his ability to work. VA progress notes include ongoing complaints of lower back pain and treatment with injections. Disabilities of the spine are to be evaluated under the general rating formula for rating diseases and injuries of the spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242 (2015). Intervertebral disc syndrome will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2015). Under the current rating criteria, degenerative arthritis of the spine (designated at Diagnostic Code 5237) is rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Intervertebral disc syndrome (designated at Diagnostic Code 5243) is rated either pursuant to the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in a higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The diagnostic code criteria pertinent to rating spinal disabilities in general were revised effective September 26, 2003 (as codified in relevant part at 38 C.F.R. § 4.71, Diagnostic Codes 5237 through 5243). A 20 percent evaluation is warranted when forward flexion of the thoracolumbar spine is greater than 20 degrees but not greater than 50 degrees; or, the combined rating of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5237 for lumbosacral strain, Diagnostic Code 5242 for degenerative arthritis of the spine, and Diagnostic Code 5243 for intervertebral disc syndrome. In addition to evaluating intervertebral disc syndrome (IVDS) under the general rating formula for diseases and injuries of the spine outlined above, it may also be rated based on incapacitating episodes, depending on whichever method results in the higher evaluation when all service-connected disabilities are combined under 38 C.F.R. § 4.25. Note (1) defines an 'incapacitating episode' as 'a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.' 'Chronic orthopedic and neurologic manifestations' were defined as 'orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so.' Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2014); 38 C.F.R. § 3.102 (2015); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Initially, the Board notes that there has been no diagnosis of IVDS during the claims period. The January 2013 and July 2015 VA examiners specifically stated that there were no findings of IVDS; therefore, a rating under the criteria for IVDS is not warranted. As the Veteran is not entitled to an increased rating based on incapacitating episodes, it is necessary to determine whether he is entitled to a higher rating based on his orthopedic and neurological manifestations. Turning to the orthopedic manifestations, the limited thoracolumbar forward flexion shown by the Veteran at his VA examinations do not warrant a higher disability rating of 20 percent. The Board notes that in order for the Veteran to be awarded a disability rating higher than 20 percent under the general spine formula, the evidence must show for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. As discussed in detail above, the evidence fails to demonstrate limitation of motion or ankylosis of the entire thoracolumbar spine to obtain a higher evaluation. See supra 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2014). In fact forward flexion was limited to, at worst, 50 degrees as shown during the January 2013 VA examination. Furthermore, the evidence simply does not show favorable ankylosis of the lumbar spine to warrant a 40 percent disability rating or unfavorable ankylosis to warrant a 50 percent disability rating. The aforementioned ranges of motion findings do not demonstrate that the joint was immobile or fixed in place. As the Veteran has not been noted to have ankylosis of the spine at any time or limitation of motion to 30 degrees or less, the Board finds that a disability rating in excess of 20 percent is not warranted for his orthopedic findings. Further, there is no evidence to support a higher compensable disability rating for the lumbar spine disability based on consideration of limitation of motion or with functional loss, as the Veteran has not exhibited a sufficient degree of limited flexion or extension, even when accounting for the factors of functional loss. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). During the January 2013 and July 2015 VA examinations, the examiners noted no limitation of function upon repetitive motion. As there is no evidence of functional loss that equates to the loss of motion necessary for an increased 40 percent rating (forward flexion limited to 30 degrees or less), an increased rating under DeLuca is not warranted. The Board has also considered whether a separate evaluation is warranted based on neurological disorder associated with the service-connected back disability. The January 2013 and July 2015 VA examiners specifically indicated there was no evidence of radiculopathy or neurological impairment. As there is no objective evidence of a neurological disability caused or related to his service-connected back disability, the Board finds that the weight of the lay and medical evidence does not demonstrate that there is a separately ratable neurologic disorder. In sum, an evaluation in excess of 20 percent rating for a lumbar spine disorder is not warranted at any time during the appeals period. Based upon the guidance of the Court in Hart, 21 Vet. App. 505 (2007), the Board has considered whether staged ratings are appropriate; however, in the present case, no staged ratings are warranted by the Veteran's symptomatology. The Board has considered the question of whether an extraschedular rating may be appropriate for the Veteran's service-connected back disability. See Bagwell v. Brown, 9 Vet. App. 157 (1966). Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent period of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.21(b) (1) (2015). Under Thun v. Peake, 22 Vet. App. 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the level of disability and symptomatology and is found to be inadequate, the Board must then determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as 'governing norms.' Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The Veteran has not identified any factors which may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. There is no evidence in the medical records of an exceptional or unusual clinical picture. The record demonstrates that the Veteran has complaints of limitation of motion which is considered by the rating criteria and pain which is considered by the DeLuca factors. Furthermore the record demonstrates that the Veteran is without hospitalization as a result of his back disability. Further, the record does not demonstrate any other reason why an extraschedular rating should be assigned. Accordingly, the Board therefore has determined that referral of the case for extraschedular consideration pursuant to 38 C.F.R. § 3.321(b) (1) is not warranted. Finally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. ORDER Entitlement to an initial disability rating in excess of 20 percent for degenerative disc disease (DDD) is denied. REMAND A January 2013 VA examiner noted the Veteran would only be a candidate for part-time sedentary work that would allow for frequent breaks due to his service-connected back disability. Given that part-time work could only be considered as marginal employment, the Board finds the opinion supports the Veteran's assertion that he is unemployable due to his service-connected disabilities. However, the Veteran's combined disability rating is only 30 percent. Thus, the minimum schedular percentage criteria for a TDIU were not met at any time during the pendency of the appeal. 38 C.F.R. § 4.16(a) (2015). However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b) (2015). Rating boards are required to submit to the Chief Benefits Director or Director, Compensation and Pension Service, for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. Where a veteran does not meet the schedular requirements of 38 C.F.R. § 4.16(a), the Board has no authority to assign a TDIU rating under 4.16(b) and may only refer the claim to the Chief Benefits Director or Director, Compensation and Pension Service, for extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1 (2001). Based upon the evidence cited above, the Board concludes that the facts of this case meet the criteria for submission of the Veteran's claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of entitlement to a TDIU on an extraschedular basis. Therefore, a remand is warranted. Accordingly, the case is REMANDED for the following action: 1. Refer the claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of whether a TDIU on an extraschedular basis is warranted. Include a full statement as to the Veteran's service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16(b). 2. After completing this and any other development deemed necessary, re-adjudicate the issue of entitlement to a TDIU. If the benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case and provide a reasonable opportunity to respond before the case is returned to the Board for further appellate review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ____________________________________________ KELLI KORDICH Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs