Citation Nr: 1752387 Decision Date: 11/15/17 Archive Date: 11/22/17 DOCKET NO. 11-31 350 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with anxiety, depression, and alcohol use disorder. 2. Entitlement to an initial rating in excess of 10 percent for multi-level degenerative disc disease (DDD), thoracolumbar spine. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Boyd Iwanowski, Counsel INTRODUCTION The Veteran served on active duty from August 2004 to May 2009. He was awarded a Combat Action Ribbon for service in Iraq. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In August 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the proceeding is associated with the claims file. In January 2017, the Board remanded the claims for further development. In a May 2017 rating decision, the initial evaluation for PTSD was raised to 70 percent effective the date of the Veteran's claim for service connection. As this was not a full grant of the Veteran's appeal, both claims are now returned to the Board for further appellate action. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's service-connected psychiatric disability was manifested by severe symptomatology demonstrating deficiencies in most areas; total occupational and social impairment has not been not shown. 2. Throughout the appeal period, the Veteran's lumbar spine disability was manifested by forward flexion greater than 60 degrees and a combined range of motion greater than 120 degrees, without muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, and without incapacitating episodes of intervertebral disc syndrome (IVDS). CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 70 percent for PTSD with anxiety, depression, and alcohol use disorder have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.130, Diagnostic Code 9411 (2016). 2. The criteria for an initial evaluation in excess of 10 percent for a multi-level thoracolumbar DDD have not been met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Board has reviewed all the evidence in the record. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When there is an approximate balance of evidence for and against an issue, all reasonable doubt will be resolved in the Veteran's favor. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). a. PTSD Pursuant to the General Rating Formula for Mental Disorders, a 70 percent evaluation is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessive rituals which interfere with routine activities; intermittently illogical obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. A 100 percent evaluation is warranted where there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126(b). Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995) (citing Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV)). While not determinative, a GAF score is probative as it relates directly to the Veteran's level of impairment of social and industrial adaptability, as contemplated by the rating criteria for mental disorders. See Massey v. Brown, 7 Vet. App. 204, 207 (1994). GAF scores ranging between 61 and 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. Scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). Turning to the evidence, the Veteran underwent a VA examination in June 2009, one month after separation from service. He noted increasing irritability, poor frustration tolerance and some anger outbursts. He reported being less social and feeling antsy and restless in large social situations. He indicated being fine at work, unless he did not have control of a situation. He stated his mood was "pretty good", but he had problems with awakening frequently at night. Upon examination, the Veteran was noted to be alert and calm although mildly fidgety. His speech was normal and coherent. His mood was somewhat anxious. His thought processes were goal directed and organized. He denied suicidal and homicidal ideation. No psychotic features were identified. His memory was noted to be intact. The examiner assigned a GAF score of 70. He described the Veteran as having mild to moderate occupational dysfunction and moderate social dysfunction due to his anxiety disorder noting that he could get quite overwhelmed when overstimulated or when he did not have control of situations. VA treatment records dated in August 2010 indicated the Veteran was seeking outpatient treatment for substance abuse. In October 2010, the Veteran's uncle filed a statement in support of the Veteran's claim. He indicated he had seen the Veteran at 5 to 6 family gatherings since he left the Marine Corps and had talked to him for 2 to 3 hours at a time at least 3 times when the Veteran had been drinking. He indicated that the Veteran was anxious and was constantly moving as if he was not comfortable in the environment. The uncle reported that the Veteran had angry outbursts if something out of the ordinary happened to shake him up. The uncle, therefore, believed it was difficult for the Veteran to socialize in a group for any length of time. The Veteran's brother also submitted a statement in support of the Veteran's claim. His brother noted that since separation from service, the Veteran had been distant from his family and friends. He noted that often times at family events, the Veteran would leave the room to be by himself. He noted that when he attended a football game with the Veteran, the crowd made him very anxious. He also indicated increased irritability and anger when having conversations. The Veteran's father noted that the Veteran did not socialize and had little optimism when returning from service. He indicated the Veteran seemed like a hermit and that he exhibited a lot of anxiety. In addition, he noted the Veteran did not sleep normally and would be up pacing until the early hours of the morning. He reported the Veteran did not appear to feel much emotion. In his October 2010 notice of disagreement, the Veteran explained that in regard to his anxiety, his issues were more severe than he initially assumed as demonstrated by his receiving a DUI and having an "I really don't care" attitude. In January 2011, the Veteran sought VA treatment for depression. He noted that he had been doing okay for a while following separation from service, but several friends committed suicide in early 2010 and in May 2010, he received a DUI. He stated his grades started going down and he felt depressed and was getting emotional easily so he would try to stay away from people. He indicated he felt anxious and worried a lot and that he was not sleeping well. He denied hallucinations. It was noted the Veteran was appropriately groomed and his personal hygiene was fair. His activity was normal with no psychomotor agitation or retardation. His speech was fluent and coherent with no pressure or latency. His mood was depressed. He was oriented to all spheres and his memory was intact. A GAF score of 55 was assigned. In September 2013, the Veteran underwent another VA examination. The examiner noted occupational and social impairment with reduced reliability and productivity. It was noted the Veteran was working as a compliance examiner. The Veteran denied emotional problems, although it was noted he continued to drink alcohol. The examiner described him as demonstrating some grandiosity, entitlement, irritability and nervousness. His speech was guarded. The examiner noted symptoms, to include impaired judgment, impaired abstract thinking, inability to establish and maintain effective relationships and impaired impulse control. His mood was described as somewhat anxious and irritable. It was noted the Veteran was not suicidal or homicidal. The examiner opined that the Veteran needed to seek follow up treatment for his alcohol use. A GAF score of 50 was assigned. Private treatment records dated in September 2015 indicated the Veteran's work was very stressful and his anxiety was "out of this world." In February 2016, the Veteran sought additional treatment for depression. It was noted that he was sleeping more due to his medication and seemed less interested in things. It was indicated he had dropped a class in pursuing his Master's because he did not have motivation to do the course work. At both appointments, his mood, memory, affect and judgment were noted to be normal. At his hearing before the Board in August 2016, the Veteran indicated that his psychiatric disorder had hindered his school work and he had withdrawn from his schooling program to seek treatment. He indicated having constant problems with depression and with being able to keep focused on the task at hand. He indicated he had to leave the first job he got after completing his MBA because his anxiety increased dramatically given the number of people he had to interact with daily. He indicated that now he can work mostly at home and was able to be more independent. He stated he preferred isolation and not being around people. He noted that if he was not isolated, his anxiety would rise. In January 2017, the Board remanded the claim for an additional VA examination to further assess the severity of the Veteran's symptoms. At an April 2017 VA examination, the Veteran reported intermittent somatic symptoms associated with feeling overwhelmed at work, transient irritability with infrequent verbal outbursts, intrusive distressing thoughts of deployment when triggered, being easily startled, sleep disturbances, infrequent trauma-related dreams, and concentration memory complaints without trauma-related avoidance symptoms. The examiner also noted a diagnosis of mild unspecified depressive disorder associated with transient feelings of depression twice per month, lasting for a couple of days in which the Veteran would have decreased productivity, decreased concentration, hypersomnia, emotional numbness and decreased motivation. Alcohol use disorder, in remission, was also identified. The Veteran was prompt for his evaluation, neatly dressed and groomed in casual attire. He maintained good eye contact. He appeared anxious at times during the interview and the examiner noted mild psychomotor restlessness. His speech was of normal rate and volume, and his thoughts organized and coherent with no evidence of preoccupations, delusions or perceptual disturbances. He was able to remember something he ate yesterday and to name the current and last 5 United States presidents in order. He recalled dates in his personal history without difficulty, suggesting intact recent and remote recall. His insight and judgment appeared intact at the time of the evaluation. The Veteran described his mood as "up and down" and that he could be "mean" when feeling emotionally "numb." Suicidal and homicidal ideations were denied. Overall, the Board finds that the initial 70 percent rating assigned is appropriate throughout the appeal period. A 100 percent disability rating is not warranted at any point because total occupational and social impairment is not shown. At each examination, the Veteran had appropriate thought content, normal speech, and no evidence of a thought disorder. He was alert and oriented and no hallucinations, delusions, or inappropriate behavior were noted. The Veteran denied homicidal and suicidal ideation. He was groomed appropriately and his memory was intact. Likewise, grossly inappropriate behavior as contemplated in the higher 100 percent rating was not reported or found at any examination. The Veteran denied and did not present any signs of psychotic thought content/process problems. When asked to describe the level of occupational and social impairment, the 2013 and 2017 examiners described impairment that was less than total, with the 2013 examiner noting reduced reliability and productivity and the 2017 examiner noting an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). Given the above, the Board finds that the evidence of record clearly reflects occupational and social impairment that is less than total. As such, a higher 100 percent rating is not warranted at any time for service-connected PTSD. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In coming to the above conclusion, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). b. Lumbar Spine The Veteran's DDD of the thoracolumbar spine is rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion (ROM) of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined ROM of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. The General Rating Formula provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined ROM is 240 degrees for the thoracolumbar spine. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined ROM. Id. Alternatively, intervertebral disc syndrome (IVDS) can be rated under Diagnostic Code 5243 and the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula). Under this Formula, a 10 disability rating is assigned for IVDS with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal exertion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2016); see also 38 C.F.R. §§ 4.45, 4.59 (2016). 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). Turning to the evidence, in June 2009, the Veteran underwent a VA examination. He noted stiffness, numbness and pain in his lower back. Loss of bladder or bowel control was denied. The Veteran explained he could no longer do squats and had to limit his running and jumping. Examination revealed no evidence of radiating pain on movement. Muscle spasm was absent. Tenderness was not noted and there was no ankylosis present. Range of motion testing revealed flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and left and right rotation to 30 degrees. Joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. Neurological examination showed normal motor and sensory function. In his October 2010, notice of disagreement, the Veteran indicated he was undergoing physical therapy for his low back. He indicated it hampered his ability to do some of the things he used to do, mostly physical activity. He indicated he could not run any distance now without it causing him extreme pain. He also could not do sit-ups or squats. In September 2013, the Veteran underwent another VA examination. He indicated he had to stop lifting weights, doing martial arts and long distance running because of aching and pain in his lower back. The Veteran described flare-ups that limited his range of motion. He indicated he would have to stand up when sitting for a long period or sit down when standing for a long period. He reported that sometimes his back would lock up and hurt a lot when bending back or forward. Range of motion testing revealed flexion to 85 degrees, extension to 25 degrees, bilateral lateral rotation to 25 degrees and bilateral lateral flexion to 25 degrees. There was no additional limitation of motion following repetitive testing and no functional loss was noted. There was no localized tenderness or pain to palpation of the joints or soft tissues. There was no evidence of guarding or muscle spasm. Muscle atrophy was not evident. There were no signs or symptoms of radiculopathy or neurologic abnormality. There was no ankylosis or intervertebral disc syndrome. At his August 2016 hearing before the Board, the Veteran indicated that at first he only suffered from limited range of motion and tightness in his back. He indicated that the condition had progressed and he now experienced numbness and tingling in his legs. He indicated that he felt the constant need to stretch and could not sit or stand for long periods. In January 2017, the Board remanded the claim for a new VA examination. At an April 2017 VA examination, IVDS was identified along with lumbar DDD and radiculopathy. The Veteran indicated flare-ups of stiffness and that he had trouble sitting for prolonged periods of time. He reported flare-ups of pain that were activity/work dependent and would last 24 to 48 hours and be of moderate severity. Functional impairment caused by pain was noted with high tempo activity. Range of motion testing revealed forward flexion to 75 degrees, extension to 30 degrees, right lateral flexion to 20 degrees, left lateral flexion to 25 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees. Pain was noted on examination that caused functional loss. There was no evidence of pain with weight bearing. Tenderness or pain on palpation of lower lumbar region was noted. The Veteran was able to perform repetitive use testing without additional loss of function or range of motion after three repetitions. Muscle spasms were not noted and guarding did not result in an abnormal gait or abnormal spinal contour. Strength testing was normal and muscle atrophy was not present. Ankylosis was not identified. The Veteran did not have neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems). The examiner indicated the Veteran had IVDS, but no episodes of bed rest had been required over the past 12 months. In a May 2017 rating decision, service connection for right and left sciatic radiculopathy was granted. The Veteran has not disagreed with these separate disability ratings. Upon review of the evidence, the Board finds that throughout the appeal period, the evidence does not reflect entitlement to a rating in excess of 10 percent for DDD of the thoracolumbar spine. In order to receive a 20 percent rating based upon limitation of motion of the spine, it would have to be shown that the Veteran has forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees or a combined range of motion not greater than 120 degrees. The medical evidence of record does not demonstrate such limitation. In addition, there is no evidence of record of favorable or unfavorable ankylosis of the spine. When considering the IVDS Formula, under Diagnostic Code 5243, the evidence does not support a more favorable rating as there is no evidence of incapacitating episodes requiring bed rest prescribed by a physician lasting at least 2 weeks. The Board has also considered the Veteran's statements regarding the difficulty he experiences exercising, as well as the pain and stiffness experienced during flare-ups. However, the Board concludes that the medical findings on examination are of greater probative value than the lay allegations regarding the severity of his disability. In any event, the Veteran has not described having 60 degrees or less of forward flexion, 120 degrees or less of combined range of motion, or muscle spasm or guarding causing an abnormal gait or spinal contour. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a higher initial evaluation. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In coming to the above conclusion, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER An initial disability rating in excess of 70 percent for PTSD with anxiety, depression, and alcohol use disorder is denied. An initial disability rating in excess of 10 percent for multi-level DDD, thoracolumbar spine is denied. ____________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs