Citation Nr: 1611463 Decision Date: 03/22/16 Archive Date: 03/29/16 DOCKET NO. 11-02 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an increased rating, greater than 30 percent, for bilateral pes planus. 2. Entitlement to an increased (i.e., compensable) rating, left foot hammertoe deformity. 3. Entitlement to an increased (i.e., compensable) rating, right foot hammertoe deformity. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD J. Schulman, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, had active service with the United States Army from May 1966 to January 1969. These matters come before the Board of Veterans' Appeals (Board) on appeal from June 2010, August 2010, August 2014, and February 2015 decisions issued by the Department of Veterans Affairs (VA) Regional Offices (ROs) in Columbia, South Carolina, and Huntington, West Virginia. Original jurisdiction for all four issues remains with the RO in Columbia. The Veteran testified before the undersigned Veterans Law Judge at a hearing held in December 2015. A transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. Throughout the entire rating period, bilateral pes planus has been productive of marked deformity, with pain on manipulation and use, as well as swelling and characteristic callosities, but not marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendo Achilles on manipulation. 2. Throughout the entire rating period, bilateral hammertoes have affected all 10 toes of each foot. 3. The Veteran is rendered unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for bilateral pes have not been met or more nearly approximated at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 2576 (2015). 2. The criteria for 10 percent ratings for hammertoes of both feet have been nearly approximated throughout the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5282 (2015). 3. The criteria for TDIU have been met throughout the period on appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19, 4.25 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased Ratings, Generally The Veteran was previously awarded service connection and assigned initial disability ratings for pes planus and hammertoes in a decision of June 2013. Appeals of the initial ratings are not before the Board; rather the Veteran seeks increased ratings. In claims for increased ratings, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. In Hart v. Mansfield, the Court extended entitlement to staged ratings to claims for increased disability ratings where "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, 511 (2007). Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2015). When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2015). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2015). Furthermore, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In the foregoing decision, the Board has considered the potential applicability of compensable ratings under Diagnostic Codes other than those for pes planus and hammertoes, and notes that the Veteran is already service-connected for hallux valgus of the left foot. See Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In this regard, the Board notes that the assignment of a particular Diagnostic Code is "completely dependent on the facts of a particular case," see Butts v. Brown, 5 Vet. App. 532, 538 (1993), and that one Diagnostic Code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. Increased Rating for Bilateral Pes Planus Prior to July 28, 2014, the Veteran's bilateral pes planus was rated as noncompensably disabling, under 38 C.F.R. § 4.71a, (DC or Code) 5276 (2015). In July 2014 the Veteran underwent a VA examination which showed worsening of the disability, and this evidence of worsening was inferred by the RO as a claim for an increased rating. In August 2014 the RO granted a 30 percent rating, effective July 28, 2014, the date of the examination. Diagnostic Code 5276 provides ratings for acquired flatfoot (i.e., pes planus) where severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated as 30 percent disabling when the disorder is bilateral. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation, that is not improved by orthopedic shoes or appliances, is rated 50 percent disabling for bilateral disability. 38 C.F.R. § 4.71a, DC 5276. Descriptive words such as "severe" and "pronounced" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2015). The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C.A. § 7104(a) (West 2014); 38 C.F.R. §§ 4.2, 4.6 (2015). After reviewing the entire claims file, the Board finds that bilateral pes planus has been not more than 30 percent disabling at any time during the period on appeal. Specifically, pes planus has been productive of marked deformity, with pain on manipulation and use, as well as swelling and characteristic callosities, but not marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, or severe spasm of the tendo Achilles on manipulation. During his December 2015 hearing before the undersigned, the Veteran reported that bilateral pes planus caused "pain most of the time" in the arches and balls of his feet. The "whole foot" hurt on both sides, as did the heal and back of the heal. He reported using "special shoes" with inserts for arch support, but these provide only limited relief. He was able to walk for two to three minutes at a time and was "constantly stopping," but could manage to walk as far as a block before needing to take a break. To the extent that the Veteran is capable of observing his own foot-related limitations, his testimony is admissible and highly probative of his current level of functioning. Of additional value, are VA examination reports from July 2014 and January 2015. In July 2014, the Veteran presented on examination with pes planus, hammertoes, and hallux valgus, and he reported bilateral foot pain, aggravated by standing and prolonged walking. Physical evaluation of the feet confirmed pain on use and manipulation of both feet, as well as swelling on use, and characteristic calluses bilaterally. Nonetheless, there was no extreme tenderness in the plantar surfaces, or objective evidence of marked deformity or pronation. Although marked inward bowing of the Achilles tendons was not present, the weight-bearing fell over the great toe. VA examination in January 2015 was largely confirmatory of both the July 2014 examination results, and the Veteran's oral and written testimony. The examiner described a detailed history referable to the feet, including noting that foot pain was almost constant, and located in the toes and balls of the feet. Prescription shoes and inserts were helpful, but calluses on the balls of the feet still occurred, and there was evidence of uneven shoe wear on the heels. Symptoms prevented prolong walking, and while doing such activities as cutting the grass, he needed to take breaks. He was also unable to stand for prolong periods, and had to elevate his feet at night. Again, pain due to pes planus was present in both feet with use and on manipulation, as was swelling and characteristic callouses. Marked deformity was still not present, nor was inward bowing of the Achilles tendon or extreme tenderness of the plantar surfaces. 38 C.F.R. §§ 4.40 and 4.45 require the Board to consider the disabling effect of painful motion when rating joint disabilities. DeLuca v. Brown, 8 Vet. App. 202, 205-06 (1995). Those regulations, in turn, direct VA to consider "the ability, 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," taking into account such factors as pain, weakness, fatigue, and lack of coordination. 38 C.F.R. §§ 4.40, 4.45. It is ambiguous whether DeLuca applies to DC 5276 as this Code is not predicated on range of motion, though the Code does refer to pain on manipulation under its rating criteria. In finding that a rating of greater than 30 percent is not warranted, the Board has taken in to account the Veteran's admissibly reports of functional limitations due to pain, and thus the spirit of Deluca has been applied. Again, however, in order for a rating of greater than 30 percent to be awarded for bilateral pes planus, the evidence must show that pes planus is pronounced and productive of marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo Achilles on manipulation. On VA examination and in treatment notes during the period on appeal, none of these symptoms were seen, nor has the Veteran suggested that they are otherwise present. Accordingly, the Board concludes that bilateral pes planus has been 30 percent disabling, and no higher, throughout the entire period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Increased Ratings for Hammer Toes of Both Feet In a June 2013 decision not on appeal, the Veteran was awarded service connection for hammertoes of both feet and granted an initial noncompensable rating, effective June 26, 2006. Hammertoe deformity is rated under 38 C.F.R. § 4.71a, DC 5282. Under this Code, a noncompensable rating is warranted for hammertoe of single toes, and a maximum 10 percent rating is assigned when there is hammertoe of all toes of the foot without claw foot. 38 C.F.R. § 4.71a, Diagnostic Code 5282. Ratings for hammertoe are thus based not on functional limitation, but the orthopedic status of the toes. After reviewing the entire claims file, the Board finds that hammertoe deformity in both feet has been the maximum, 10 percent, disabling throughout the period on appeal, as the deformity has affected all toes of both feet. In December 2015, the Veteran testified to the undersigned that he had a deformity of all 20 toes. He described that the toes were "pointing down" to the point that they began to "curl underneath" the feet, causing calluses due to shoe wear. The Veteran's description of his toes and feet are admissible, Layno, 6 Vet. App. 465, however the assertion that such symptoms specifically amount to hammertoes, is beyond his expertise. Nonetheless, in May 2015, a private examiner opined that hammertoe deformity "involves all 10 toes and is progressive in nature." While he only stated "all 10 toes," it is apparent to the Board that the opinion was in relation to all 10 toes of each foot. The same private physician had previously evaluated the Veteran's feet in October 2014 and determined that hammertoe deformity was present in the second, third, fourth, and fifth toes in both the right and left foot - a conclusion reached with the aid of x-ray imaging. Further complicating the diagnostic picture, a VA examiner in January 2015 indicated that only the second and third toes of each foot were subject to hammer deformity. The Board finds all three of the above clinical evaluations - performed over the courses of less than a year - to be of essentially equal probative weight, as they were performed by competent medical professionals in conjunction with physical evaluations of the feet. Thus, the Board has been presented with an approximate balance of positive and negative evidence on the question of whether all, or only some, of the Veteran's toes have hammertoe deformity. Accordingly, resolving reasonable doubt in the Veteran's favor, the Board concludes that all 20 toes have had hammertoe deformity throughout the period on appeal, and 10 percent ratings - the highest schedular ratings available - are warranted for each foot, effective October 10, 2014, the date VA received his claim for increased ratings . 38 C.F.R. §§ 4.3, 4.7. Extraschedular Consideration Having evaluated the pes planus and hammertoe disabilities on schedular bases, the Board has also considered whether referral for extraschedular ratings are warranted for the same. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is required. Id. at 115. The schedular rating criteria used to rate the Veteran's service-connected disabilities above, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of specific orthopedic and soft-tissue findings indicative of the functional effects of foot disorders; thus, the demonstrated manifestations - namely a reduced ability to walk long distances, or stand for extend periods of time - are contemplated by the provisions of the rating schedule, as they are necessary consequences of the types of impacts which cause symptoms such as characteristic callosities. Accordingly, the Board finds that the evidence fails to show unique or unusual symptomatology regarding the Veteran's service-connected foot and toe disabilities which would render the schedular criteria inadequate. Additionally, the Veteran has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Nonetheless, the Board has fully considered the Veteran's additional service-connected disabilities posttraumatic stress disorder (PTSD), diabetes mellitus type II, bilateral hallux valgus, and erectile dysfunction in concluding that referral for consideration of an extraschedular rating is not warranted. Based on the foregoing, the Board finds the schedular evaluation is adequate, and referral for consideration of extra-schedular evaluation is not required. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. Total Disability Rating Based on Individual Unemployability The Veteran contends that his service-connected disabilities rendered him unable to maintain gainful employment. During the period on appeal, which began when the Veteran submitted an application for increased compensation based on unemployability in February 2010, his service-connected disabilities have included PTSD (rated 70 percent disabling), bilateral pes planus (rated 30 percent disabling), diabetes mellitus type II (rated 10 percent disabling, effective May 10, 2010), hallux valgus of both right and left feet (rated 10 percent disabling, effective August 19, 2013), left and right hammertoe deformities (rated as 10 percent disabling, effective October 10, 2014, and noncompensable prior to that date), and erectile dysfunction (rated noncompensable, effective July 20, 2010). TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.34l, 4.16(a) (2015). Throughout the period on appeal, the Veteran has had at least one disability evaluated as 70 percent disabling, and thus the threshold schedular requirement has been met. Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2009); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A claim for TDIU is essentially a claim for an increased rating insofar as it acts as alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. Norris v. West, 12 Vet. App. 413, 420-21 (1999). Following a review of the complete claims file, the Board finds that service-connected disabilities have rendered the Veteran unable to maintain gainful employment throughout the period on appeal. During his December 2015 hearing before the undersigned, the Veteran testified that he had last worked in 2007, at which time he was a telecommunications installer and repairman. This is slightly inconsistent with his February 2010 application for TDIU, in which he reported that he last worked in October 2008. The Board finds the inconsistency to be minor and largely immaterial, as the period on appeal did not begin until 2010. During his hearing, he indicated that he had stopped working when he retired, but now believes he is unable to "do what [he] used to do" irrespective of age. In particular, he suggested that "[his] posttraumatic stress disorder mainly is what's stopping [him] from working," in part because he has difficulty controlling his anger and has a strong tendency to isolate himself from others. The Veteran's self-assessment is supported by a July 2010 letter from a VA mental health professional who had been treating him since February 2008. She opined that his PTSD was productive of symptoms including insomnia, dysphoria, and feelings of detachment from others. She also confirmed that he was easily angered and had "been unable to work for many months secondary to these symptoms." She continued by stating that "[t]he severalty of [the Veteran's] PTSD prevents him from obtaining and following gainful employment." This conclusion was also reached by the Veteran's VA primary care physician in September 2010, at which time he noted that symptoms "include but are not limited to insomnia, nightmares, suicidality, avoidance, lack of concentration, irritability, and anxiety," and went on to indicated that "[a]fter a review of this [V]eteran's medical history and an exam[ination] it is of my opinion that the severity of his PTSD and the medications he must take for this condition render him unable to secure and follow gainful employment." On VA examination in March 2013, following a general medical evaluation, the examiner - who noted the existence of erectile dysfunction and diabetes mellitus type II - conclude that the Veteran "is capable of obtaining and maintaining gainful employment in a service industry and . . . it is also my opinion that he would be able to tolerate sedentary employment." Having previously indicated that that the Veteran had no mental health disorders, she then acknowledged that he was scheduled for a mental health evaluation for PTSD. The Board finds the forgoing opinion to be of limited probative value. Specifically, in determining whether service-connected disabilities caused a veteran to be unemployable, VA must consider the combined impact of all service-connected disabilities. While perhaps true that erectile dysfunction and diabetes on their own do not result in unemployability, the fact that she seemingly ignored the impact of PTSD in particular, renders her conclusion of especially limited value. The following month, the Veteran again underwent a VA examination, and the examiner concluded that the PTSD-related problems with concentration and difficulty in adapting to stressful situations "that commonly occur in a work setting, impact his ability to perform both physical and sedentary work." He felt, however, that the Veteran's "inability to secure and maintain gainful employment is not purely a result of his PTSD but rather also involves physical health issues for which he is not currently service-connected." On VA examination of the feet in January 2015, the examiner noted that bilateral service-connected foot disabilities restricted the Veteran from walking or standing for more than three to five minutes at a time. While she did not comment directly on whether this precluded him from gainful employment, the Board finds that this level of limitation, especially when considered in light of psychological limitations associated with PTSD, is a highly relevant factor in considering the combined impacts of all eight service-connected disabilities. Although reports from VA examiners and treatment providers vary somewhat, the Board finds that the overall weight of their assessments - and taking into account lay statements by the Veteran - shows that service-connected PTSD on its own, even without consideration of other service-connected disabilities, has caused the Veteran to be unable to secure or follow a substantially gainful occupation throughout the period on appeal. To the limited extent that March and April 2013 examiners suggested that he was not so vocationally limited, the Board has found their conclusions to be of reduced probative value for the reasons stated above. Accordingly, resolving all reasonable doubt in the Veteran's favor, the award of TDIU is warranted. See 38 U.S.C.A. § 5107. Duties to Notify and Assist VA has a 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 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Notice letters were sent to the Veteran in February 2010, August 2014, and January 2015, prior to the initial adjudication of the respective claims on appeal. Notice included descriptions of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Moreover, in a hearing before the undersigned, the presiding Veterans Law Judge clarified the issues on appeal and identified potentially relevant additional evidence that the Veteran may submit in support of the claims. These actions by the undersigned satisfy the obligations imposed by 38 C.F.R. § 3.103. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). VA also has a duty to assist an appellant in the development of the claim. To that end, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . or all [Social Security Administration] disability records must be sought - only those that are relevant to the veteran's claim"). The Board finds that VA has satisfied its duty to assist by acquiring service records as well as records of private and VA treatment, to the extent that they were identified by the Veteran, in addition to records from the Social Security Administration (SSA). These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The duty to assist was further satisfied by VA examinations in October 2010, March 2013, April 2013, July 2014, August 2014, and January 2015, over the course of which examiners conducted physical examinations of the Veteran, were provided the claims file for review, took down the Veteran's history, considered the lay evidence presented, laid factual foundations for the conclusions reached, and reached conclusions and offered opinions based on history and examination that are consistent with the record. While January 2015 and March 2013 VA examiners were not provided the Veteran's claims file for review, accurate histories were elicited from the Veteran regarding his feet. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2015); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). Based on the foregoing, VA has fully met its duties to notify and assist the claimant with the development of the claims and no further notice or assistance is required. ORDER A rating in excess of 30 percent for bilateral pes planus is denied. A rating of 10 percent, and no higher, for left foot hammertoe disability is granted, effective October 10, 2014. A rating of 10 percent, and no higher, for right foot hammertoe disability is granted, effective October 10, 2014. Entitlement to TDIU is granted. ____________________________________________ M. TENNER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs