Citation Nr: 1753055 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 11-15 111A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for left lower extremity radiculopathy. 3. Entitlement to service connection for right lower extremity radiculopathy. 4. Entitlement to service connection for a left knee disability. 5. Entitlement to service connection for a right knee disability. 6. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression. 7. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Carol J. Ponton, Attorney WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Jonathan Z. Morris, Associate Counsel INTRODUCTION The Veteran had active military service from December 10, 1970 to May 12, 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. A June 2009 rating decision, in pertinent part, denied the Veteran's claims of entitlement to service connection for lumbar spine degenerative disc disease, right leg pain, and left leg pain. An August 2016 rating decision denied the Veteran's claim of entitlement to a TDIU. In August 2013, the Veteran testified before a Veterans Law Judge (VLJ) at a Travel Board hearing. While the matter was pending, the VLJ who conducted this hearing retired. Generally, the law requires that the VLJ who conducts a hearing on an appeal must participate in any decision made on that appeal. See 38 U.S.C.A. § 7107 (c); 38 C.F.R. § 20.707. As the VLJ who conducted the August 2013 Travel Board hearing has since retired, he cannot participate in the adjudication of the Veteran's claim. In a July 2017 letter, the Veteran indicated that he did not want another hearing. Therefore, the Board will proceed with addressing the appeal. This case was previously before the Board in June 2014, where it determined that new and material evidence had been received to reopen the Veteran's previously denied service connection claim for a back disability. The Board then remanded the remaining issues for further development. The RO continued the denial of the Veteran's claim, as reflected in the February 2017 Supplemental Statement of the Case (SSOC), and returned the claim to the Board for further appellate review. The Board finds that there was substantial compliance with its June 2014 remand instructions, and no further remand is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Additionally, in June 2014, the Board remanded the Veteran's claims of entitlement to service connection for a bilateral foot disability, to include pes planus and plantar fasciitis; a multinodular thyroid goiter; prostate cancer, to include as due to in-service exposure to tear gas; hypertension, to include as secondary to pain and stress associated with physical and psychiatric disabilities; and, PTSD. In March 2017, the Veteran withdrew his appeal with respect to these issues. These issues were not recertified to the Board and, consequently, are not within the Board's jurisdiction. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for a left knee disability, as well as entitlement to a TDIU, are addressed in the REMAND portion of the decision below and are being REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, the most probative evidence establishes that the Veteran's lumbar spine disability had its onset during his active military service. 2. Resolving all reasonable doubt in favor of the Veteran, the most probative evidence establishes that the Veteran's left lower extremity radiculopathy was caused by or the result of his lumbar spine disability. 3. Resolving all reasonable doubt in favor of the Veteran, the most probative evidence establishes that the Veteran's right lower extremity radiculopathy was caused by or the result of his lumbar spine disability. 4. A right knee disability was not noted on the Veteran's entrance examination, but there is clear and unmistakable evidence of a pre-existing disability. 5. The Veteran's pre-existing right knee disability was permanently worsened during his active military service. 6. Resolving all reasonable doubt in favor of the Veteran, the most probative evidence establishes that the Veteran's acquired psychiatric disorder was caused by or the result of his lumbar spine disability and all associated manifestations. CONCLUSIONS OF LAW 1. The criteria for service connection for a lumbar spine disability have been met. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). 2. The criteria for service connection for left lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2016). 3. The criteria for service connection for right lower extremity radiculopathy have been met. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2016). 4. The criteria for service connection for a right knee disability have been met. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304 (2016). 5. The criteria for service connection for an acquired psychiatric disorder have been met. 38 U.S.C.A. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a) (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. 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, 3.326(a) (2016). In this case, however, the Board is fully granting the benefits sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error would be inconsequential and, thus, at most nonprejudicial, i.e., harmless error. See Shinseki v. Sanders, 556 U.S. 396 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant attacking the agency's decision to show the error instead was harmful by at least providing an explanation as to how the error caused harm; there is not a presumption that it did); see also 38 U.S.C.A. § 7261(b)(2); 38 C.F.R. § 20.1102. II. Legal Criteria for Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, to successfully establish service connection, there must be competent and credible evidence showing (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the disease or injury incurred in or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Certain "chronic diseases" may be presumed to have been incurred in or aggravated by service if they manifest to a degree of 10 percent or more within one year of a Veteran's separation from service. 38 C.F.R. §§ 3.307, 3.309(a). This presumption is rebuttable by probative evidence to the contrary. Id. When a chronic disease is shown in service, sufficient to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To be "shown in service," the disease identity must be established and the diagnosis must not be subject to legitimate question. Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013); see also 38 C.F.R. § 3.303(b). There is no "nexus" requirement for compensation for a chronic disease which was shown in service, so long as there is an absence of intercurrent causes to explain post-service manifestations of the chronic disease. Walker, 708 F.3d at 1336. Service connection may also be granted on a secondary basis for a condition that is not directly caused by the Veteran's service. 38 C.F.R. § 3.310. In order to prevail under a theory of secondary service connection, the evidence must demonstrate an etiological relationship between (1) a service-connected disability or disabilities and (2) the condition said to be proximately due to the service-connected disability or disabilities. Buckley v. West, 12 Vet. App. 76, 84 (1998); see also Wallin v. West, 11 Vet. App. 509, 512 (1998). In addition, secondary service connection may also be found in certain instances when a service-connected disability aggravates another condition. See Allen v. Brown, 7 Vet. App. 439 (1995); 38 C.F.R. § 3.310(b). Thus, service connection may be established either by showing (1) direct service incurrence or aggravation, (2) an etiological relationship between the claimed condition and a service-connected disability, or (3) using applicable presumptions, if available. See Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the claimant. The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. 38 U.S.C.A. § 7104 (a); Baldwin v. West, 13 Vet. App. 1 (1999); see 38 C.F.R. § 3.303 (a). A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau, supra. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). The law requires only that the Board provide reasons for rejecting evidence favorable to the Veteran. III. Service Connection for a Lumbar Spine Disability The Veteran seeks service connection for a lumbar spine disability. Specifically, he contends that his current disability is due to an injury sustained to his low back during boot camp when he removed his gas mask during a training exercise and fell to the ground. See, e.g., August 2013 Board Hearing Transcript at 5, 6. Having carefully considered this claim, in light of the evidence of record and the applicable law, the Board concludes that the Veteran's lumbar spine disability had its onset during his active military service and, therefore, the appeal will be granted. As noted above, the first element of direct service connection requires medical evidence of a current disability. In this case, the Veteran has a current diagnosis of lumbar spine degenerative disc disease (DDD) and degenerative joint disease (DJD). See August 2015 VA examination. Therefore, the Veteran has satisfied the first element of service connection. As previously mentioned, the second element of direct service connection requires medical evidence, or in certain circumstances, lay testimony, of an in-service incurrence or aggravation of an injury or disease. The Veteran testified that, during a training exercise, he was instructed to go into a gas chamber where they released gas while he had a gas mask on, then he was to remove the gas mask to say his name, rank, and serial number, and put it back on while still in the chamber. See August 2013 Board Hearing Transcript at 5, 6. The Veteran indicated that he took off his mask and, as a result of not putting it back on fast enough, he fainted and fell to the ground. Id. He further recalled waking up with his back and knee hurting, and being put on bed rest and light duty. Id. A January 1971 service treatment record indicates that the Veteran complained of lower back pain. An additional January 1971 STR shows that the Veteran had a urinalysis done due to his complaints that his back would hurt when urinating. A February1971 STR reflects that he again complained of lower back pain and was treated with light duty. The Board notes that a specific injury or back related diagnosis is not documented in either record. Additionally, there are no other STRs showing complaints of, treatment for, or a diagnosis of any back disability. As stated above, the third element of direct service connection requires medical nexus evidence establishing a connection between the current disability and the disease or injury incurred in or aggravated during service. A March 1982 x-ray report shows a normal lumbar spine with findings suggestive of early pressure erosion of the dorsal aspects of S-1 and S-2. The Veteran was afforded a VA examination in October 2009 to determine the nature and etiology of his lumbar spine disability. The VA examiner documented the Veteran's report of his in-service incident involving the gas chamber and noted that he was treated with unknown pain medications, light duty, and crutches with some relief of pain. Ultimately, the examiner concluded that it is less likely than not that the Veteran's lumbar spine disability was related to his active military service. In support of this determination, the examiner indicated that the Veteran had only been seen one time for lower back pain during service without mention of trauma or treatments, and further noted that DDD is usually a progressive disease. The Board finds that the October 2009 VA medical opinion is of less probative value. That is to say, it certainly does not have greater probative value than the other medical opinions of record, so, at best, it is only as probative. Specifically, in its June 2014 decision, the Board previously determined that the October 2009 VA examination was inadequate, because the offered medical opinion did not address whether the Veteran's in-service complaints of low back pain were early manifestations of his current lumbar spine disability. See Walker v. Shinseki, 708 F.3d 1331, 1335 (Fed. Cir. 2013). In fact, while the examiner indicated that DDD is a disease that is progressive in nature, the examiner did not address the Veteran's March 1982 x-ray report showing early erosion of S-1 and S-2, which may indicate that his in-service reports of low back pain may have continued to progress and result in his current lumbar spine DDD and DJD. Thus, the Board again finds that the October 2009 VA examination is of diminished probative value. The Veteran was afforded a VA examination in August 2015. The VA examiner similarly documented the Veteran's report of the in-service incident involving a gas chamber, as well as his report of undergoing a myelogram in the 1980's revealing a herniated disc. The examiner concluded that it is less likely than not that the Veteran's current lumbar spine condition is related to military service. In support of this determination, the examiner reasoned that any injury sustained during the gas chamber incident likely resolved "as [the Veteran] would've undergone basic training in December 1970, and by January 1971, back pain was denied on his history form." Additionally, the examiner noted that while the Veteran complained of back pain in January 1971, all that was specifically noted was in association with urination issues. Finally, the examiner indicated that the Veteran's current back complaints are entirely related to DJD and DDD, which were not evident in 1982. The Board notes that the August 2015 VA examination report is probative against the claim, as it, too, represents the conclusions of a medical professional, and is supported by a fully articulated opinion with sound reasoning for the conclusion contributing to the probative value of the opinion. Further, the opinion is based on reliable principles and is supported by other evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). In Neives-Rodriguez, the Court held that most of the probative value of an opinion comes from the discussion of its underlying reasoning or rationale, so a medical opinion should contain a conclusion and a reference to supporting data with a "reasoned medical explanation connecting the two." Neives-Rodriguez, at 301. However, the VA examiner, in part, based the negative opinion on an inaccurate factual basis of the only time the Veteran was seen for a back problem was in association with a urinary tract infection. As the Veteran's STRs documents other instances where the Veteran was seen for low back pain, the Board finds that the August 2015 medical opinion is of diminished probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (holding that the Board may reject a medical opinion based on an inaccurate factual basis). In March 2017, Dr. D. Miller, an American Academy of Orthopedic Surgeons board certified orthopedic surgeon, submitted a private medical opinion addressing the Veteran's evaluation, treatment, etiology, onset, and severity of his lumbar spine condition. Initially, Dr. D.M. addressed his competency to provide such an opinion, which involved an extensive overview of his qualifications and his 26 years of clinical experience, which, in pertinent part, includes three years of active duty as a Navy flight surgeon, orthopedic surgeon for three professional sports teams, and over 100,000 office visits of patients. Next, Dr. D.M. indicated that he reviewed the Veteran's claims file, pertinent military and post-military medical records, and conducted a telephone interview of the Veteran in preparation of the requested medical opinion. Then, Dr. D.M. proceeded to substantively comment on numerous entries from the Veteran's service treatment records, pertinent post-military records, and VA compensation examinations, which the Board will, in pertinent part, highlight below. Dr. D.M. challenged the October 2009 and August 2015 VA examiners' findings that both placed a great deal of emphasis (with respect to their rationale) on their opinion that the progressive symptomatic DDD and DJD are part of the normal progressive changes seen with aging. Dr. D.M. discussed four medical journal articles relating to degenerative changes present in the spine of asymptomatic individuals. Following a substantive discussion, Dr. D.M. ultimately stated that these medical journal articles indicate that individuals with routine degenerative changes of their spine who are symptomatic more likely than not had some other occurrence happen besides the normal gaining process, i.e., such as trauma. In summary, Dr. D.M. ultimately opined that, based on his training, experience, interview of the Veteran, and a thorough review of the relevant records, it is at least as likely as not that the Veteran's present lumbar condition is the direct result of his injury sustained while he was on active duty. Dr. D.M.'s March 2017 medical opinion is highly probative in support of the claim, as it represents the conclusions of a medical professional and is supported by a fully-articulated opinion with sound reasoning for the conclusion contributing to the weight of the opinion in relation to other evidence in the file. Further, the opinion is based on reliable principles and supported by other evidence. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). To be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder (or severity); instead, it must also support the conclusion with sufficient rationale and explanation. Stefl, 21 Vet. App. at 124. The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connected or rating context if it contains only data and conclusions." Neives-Rodriguez, 22 Vet. App. at 304, citing Stefl, 21 Vet. App. at 125 (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); see also Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). In light of the foregoing reasons, the evidence supporting the claim is, at the very least, as probative (meaning as competent and credible) as the evidence against the claim. Thus, the Board is of the opinion that the point of equipoise has been reached in this appeal. Resolving all reasonable doubt in favor of the Veteran, the most probative evidence establishes that the Veteran's lumbar spine disability had its onset during his active military service. On the whole, the medical evidence of record is consistent with regards to the credibility of the Veteran's report of an in-service injury sustained during the gas chamber incident. Despite the October 2009 and August 2015 VA examiners both concluding that the Veteran's lumbar spine disability was less likely related to service, both opinions were found to be inadequate for separate reasons. While the October 2009 examiner did not address the evidence suggesting a continuity of symptomology between the Veteran's in-service reports of low back pain and his current lumbar spine DDD and DJD, the August 2015 examiner, in part, based the offered opinion on an inaccurate factual basis with respect to the documented in-service complaints of low back pain. On the other hand, Dr. D.M.'s medical opinion was supported by an explanation informed by review of the pertinent medical history and prior clinical findings made on examination. Moreover, there is no indication that Dr. D.M. was not fully aware of the Veteran's past medical history or that he misstated any relevant fact. Undoubtedly, further medical inquiry can be undertaken with a view towards further developing this claim. However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted (or, as here, at worst evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). But see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim). Accordingly, having carefully considered the Veteran's claim, in light of the evidence of record and the applicable law, the Board concludes that the most probative evidence establishes that the Veteran's lumbar spine disability had its onset during service and, thus, his claim of entitlement to service connection for a lumbar spine disability is granted. IV. Service Connection for Bilateral Lower Extremity Radiculopathy The Veteran seeks service connection for bilateral lower extremity radiculopathy, to include as secondary to a lumbar spine disability. Specifically, he contends that his current disability is due to his lumbar spine condition. In light of the above grant of service connection for a lumbar spine disability, the Board concludes that the Veteran's bilateral lower extremity radiculopathy was caused by or the result of his service-connected lumbar spine disability and, therefore, the appeal will be granted. As noted above, the first element of secondary service connection requires medical evidence of a current disability. Here, the Veteran has a current diagnosis of bilateral lower extremity radiculopathy. See, e.g., August 2015 VA examination. Thus, the Veteran has satisfied the first element of secondary service connection. As previously mentioned, the second element of secondary service connection requires evidence of a service-connected disability. In this case, the Board has granted service-connection for a lumbar spine disability above. Therefore, the Veteran has satisfied the second element of secondary service connection. As stated above, the third element of secondary service connection requires medical nexus evidence establishing a connection between the service-connected disability and the current disorder. The Veteran was afforded a VA examination in August 2015. While the examiner opined that it is less likely than not that the Veteran's current bilateral lower extremity radiculopathy is a result of his military service, the examiner concluded that it is as likely as not that the Veteran's lower extremity neurologic complaints (intermittently occurring in both legs) are caused by his low back disability. In support of this opinion, the examiner reasoned that the Veteran's current lumbar spine DJD and DDD are well known causes of nerve root impingement symptoms, and the Veteran has described suffering from the characteristic symptoms. Similarly, in his March 2017 opinion, Dr. D.M. agreed with the August 2015 VA examiner's conclusion that the Veteran's bilateral lower extremity radiculopathy is secondary to his current lumbar condition. Additionally, however, Dr. D.M. further noted that these sciatic symptoms have been moderate in nature since 2008. The Board notes that both the August 2015 VA examination report and Dr. D.M.'s March 2017 opinion are highly probative in support of the claim, as they represent the conclusions of medical professionals and are supported by explanations informed by review of the pertinent medical history and prior clinical findings made on examination. Moreover, there is no contradicting medical evidence of record. See Nieves-Rodriguez, supra at 301 (holding that most of the probative value of an opinion comes from the discussion of its underlying reasoning or rationale). Based on the foregoing evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the most probative evidence of record supports a finding that the Veteran's bilateral lower extremity radiculopathy was caused by his now service-connected lumbar spine disability. While the August 2015 examiner and Dr. D.M. came to different conclusions with respect to whether the Veteran's lumbar spine disability was etiologically related to service, both medical opinions were consistent in establishing that the Veteran's currently diagnosed lumbar spine DJD and DJD are well known causes of neurologic impairments and the Veteran has described having the characteristic symptoms. Having carefully considered the Veteran's claim, in light of the evidence of record and the applicable law, the Board concludes that the most probative evidence establishes that the Veteran's bilateral lower extremity radiculopathy was caused by his service-connected lumbar spine disability and, thus, his claim of entitlement to service connection for bilateral lower extremity radiculopathy is granted. V. Service Connection for a Right Knee Disability The Veteran contends that he has a right knee condition that pre-existed his service, and was permanently aggravated beyond its normal progression during his active duty from December 1970 to May 1971. Specifically, the Veteran believes the aggravation of his right knee condition occurred due to an incident during boot camp when he removed his gas mask during a training exercise and fell to the ground sustaining injury. See, e.g., August 2013 Board Hearing Transcript at 5, 6. The first and perhaps most fundamental requirement for any claim of entitlement to service connection is proof that the Veteran currently has the claimed disability. See 38 U.S.C.A. § 1131; Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, an August 2015 VA examiner diagnosed bilateral knee osteoarthritis. Therefore, the evidence of record establishes that the Veteran has a current right knee disability. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has distinguished between those cases in which the preexisting condition is noted upon entry into service, and those cases in which the preexistence of the condition must otherwise be established. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002); Horn v. Shinseki, 25 Vet. App. 231, 234 (2012); see also 38 U.S.C.A. § 1111. In a case where there is no preexisting condition noted upon entry into service, (such as the case here), the Veteran is presumed to have entered service in sound condition, and the burden falls to the government to demonstrate by clear and unmistakable evidence that (1) the condition preexisted service and (2) the preexisting condition was not aggravated by service. Wagner, 370 F3d. at 1345; Horn, 25 Vet. App. at 234; 38 U.S.C.A. § 1111. This statutory provision is referred to as the "presumption of soundness." Horn, 25 Vet. App. at 234. The veteran is not required to show that the disease or injury increased in severity during service before VA's duty under the second aggravation prong of this rebuttal standard attaches. VAOPGCPREC 3-2003 (July 16, 2003). The government may show a lack of aggravation by establishing by clear and unmistakable evidence "that there was no increase in disability during service or that any 'increase in disability [was] due to the natural progress of the' preexisting condition." Wagner, 370 F.3d at 1096 (quoting 38 U.S.C.A. § 1153). This burden of proof must be met by "affirmative evidence" demonstrating that there was no aggravation. The burden is not met by finding "that the record contains insufficient evidence of aggravation." Horn, 25 Vet. App. at 236-37. The Veteran need never produce any evidence of aggravation to prevail under the aggravation prong, even if clear and unmistakable evidence establishes that the disease preexisted service. In other words, in a "not noted at entrance" situation, the burden is never shifted back to the Veteran to show that his disability increased in severity during service. Id. If the government rebuts the presumption of soundness, then the veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness, then the veteran's claim is one of direct service connection. Horn, 25 Vet. App. at 236-37; Wagner, 370 F.3d at 1096. Prior to the application of the presumption of soundness, there must be evidence that a disease or injury, which was not noted upon entrance into service, actually manifested or was incurred in service. Gilbert v. Shinseki, 26 Vet. App. 48 (2013). The presumption of soundness shields the Veteran from a finding that the disease or injury preexisted (and therefore was not incurred in) service by requiring VA to prove by clear and unmistakable evidence that a disease or injury manifesting in service both preexisted service and was not aggravated by service. Id. at 55. "Clear and unmistakable evidence" is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003); Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (noting that clear and undebatable means that the evidence cannot be misinterpreted or misunderstood). With regard to the existence of a preexisting condition, at the outset, a preexisting right knee condition was not "noted" at any enlistment examination in the Veteran's service treatment records (STRs). In this regard, to be "noted" within the meaning of the presumption of soundness statute, the condition must be recorded in the entrance examination report. 38 C.F.R. § 3.304(b); see also 38 U.S.C.A. § 1111; Crowe v. Brown, 7 Vet. App. 238, 245 (1994) (holding that the presumption of sound condition attaches only where there has been an induction examination in which the later-complained-of disability was not detected). Thus, the presumption of soundness applies in the present case. While the presumption of soundness applies in this case, there is nonetheless clear and unmistakable evidence of record that a right knee disorder pre-existed the Veteran's. In determining whether a disorder preexisted service, the Board has considered both medical and lay evidence of record. See Dr. D.M.'s March 2017 private opinion; see also December 31, 1970 STR (indicating that the Veteran was supposed to get a cortisone shot before being drafted); see also Doran v. Brown, 6 Vet. App. 283, 286 (1994) (finding that "as a matter of law, the presumption of soundness was rebutted by clear and unmistakable evidence consisting of the appellant's own admissions during clinical evaluations" during service). In light of the totality of the lay and medical evidence of record, the Board finds there is clear and unmistakable evidence that the Veteran's right knee disability, preexisted his period of active military service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). However, as stated above, rebutting the presumption of soundness is a two-part analysis. As there is clear and unmistakable evidence that the Veteran's right knee disability preexisted service, consideration must be given as to whether clear and unmistakable evidence exists to show that the condition was not aggravated during service, to fully rebut the presumption of soundness. In other words, "VA may not rest on the notion that the record contains insufficient evidence of aggravation. Instead, to fully rebut the presumption of soundness, VA must rely on affirmative evidence to prove that there was no aggravation." Horn, 25 Vet. App. at 236. In this regard, after carefully reviewing the evidence of record, the VA has not met its high burden here. The Board does not find there is clear and mistakable evidence of no aggravation. Stated another way, in the present case, there is actually some probative evidence suggesting in-service aggravation of a preexisting right knee condition during service. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). "[A]n increase in disability must consist of worsening of the enduring disability..." Davis v. Principi, 276 F.3d 1341, 1344 (Fed. Cir. 2002). Aggravation may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306; Falzone v. Brown, 8 Vet. App. 398, 402 (1995). See also Davis v. Principi, 276 F.3d 1341, 1345 (Fed. Cir. 2002) (holding that evidence of a temporary flare-up, without more, does not satisfy the level of proof required of a non-combat veteran to establish an increase in disability). Accordingly, "a lasting worsening of the condition"-that is, a worsening that existed not only at the time of separation but one that still exists currently is required. See Routen v. Brown, 10 Vet. App. 183, 189 n. 2 (1997); see also Verdon v. Brown, 8 Vet. App. 529, 538 (1996). Evidence of a prolonged period without medical complaint can be considered, along with other factors concerning the veteran's health and medical treatment during and after military service, as evidence of whether a preexisting condition was aggravated by military service. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, when appropriate, the Board may consider the absence of evidence when engaging in a fact finding role. See Jordan v. Principi, 17 Vet. App. 261 (2003) (Steinberg, J., writing separately) (noting that the absence of evidence may be considered as one factor in rebutting the aggravation part of the section 1111 presumption of soundness). As to in-service evidence of aggravation, the Veteran has consistently reported an incident during boot camp when he removed his gas mask during a training exercise and fell to the ground sustaining injury. He recalls waking up with his back and knee hurting, and being put on bed rest and light duty. A December 1970 STR shows that the Veteran complained of pain and stiffness in the right knee. Although reporting that his local medical doctor had considered administering a cortisone shot, the Veteran stated he was drafted before the treatment could be explored further. He further reported an increased pain over the past 24 hours and stated that he has popping with his knee sometimes giving way. He denied any locking. A January 1971 STR reflects that the Veteran complained of right knee pain located underneath the patella and behind the knee. He indicated that the pain occurs all the time after exercising and described it as sharp and intermittent. The physician noted that the etiology of the Veteran's right knee pain was undetermined, and that it was not service aggravated. Similarly, a February 1971 STR documents another case of knee problems and a letter from Dr. A.D. "confirming diagnosis of chondromalacia right patella." He was treated with light duty. Succinctly, in light of this evidence during the Veteran's service, the Board cannot show by clear and unmistakable evidence that the Veteran's preexisting right knee condition was not aggravated by his service, for purposes of rebutting the presumption of soundness at entry. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304 (b). See also Wagner, supra; VAOPGCPREC 3-2003. In making this determination, the Board has considered that the January 1971 STR noting the Veteran's right knee pain with undetermined etiology was not service aggravated. However, Dr. D.T. provided no rationale in support of the finding of no aggravation. In this regard, the probative value of a medical professional's statement is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support his opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999); see also Black v. Brown, 5 Vet. App. 177, 180 (1995). A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 18, 22 (2007). In addition, a medical opinion must support its conclusions with analysis. Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Finally, the Court has held that an unexplained "X" in a box in a STR alone, indicating that a condition was not aggravated by service, cannot constitute clear and unmistakable evidence of a lack of aggravation under 38 U.S.C.A. § 1111. Horn v. Shinseki, 25 Vet. App. 231 (2012). Additionally, the Board acknowledges the August 2015 VA examiner's indication that there is no evidence to suggest a permanent worsening or progression of the pre-existing right knee condition. The examiner reasoned that it is expected that with increased physical demands imposed by military service that the Veteran very likely had increased pain and discomfort with the knee. However, as the examiner further noted, no progressive disease was documented and x-rays conducted in service remained normal. Nonetheless, despite the August 2015 negative opinion, in March 2017, Dr. D.M. submitted an opinion indicating that it is at least as likely as not that the Veteran's patellofemoral joint symptoms were permanently accelerated as noted by his progressive worsening knee symptoms following his boot camp physical activities, and particularly his documented injury when he passed out during the gas chamber training exercise. As both the VA and STR military examiners failed to submit their unfavorable medical opinions for no-aggravation, in strong, definitive terms, the Board once again emphasizes that clear and unmistakable evidence is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." Cotant v. Principi, 17 Vet. App. 116, 131 (2003). A finding of "insufficient evidence" of aggravation does not meet VA's burden, only affirmative evidence proving that there was no aggravation does. Horn v. Shinseki, 25 Vet. App. 231 (2012). In the instant case, this burden has not been met by VA, as there is some probative medical evidence of record showing possible in-service aggravation of the preexisting right knee condition. In other words, the evidence of record is debatable as to whether there was aggravation of a preexisting right knee condition during service. Cotant, 17 Vet. App. at 131. Therefore, the presumption of soundness has not been rebutted by VA in the present case. As previously noted above, when no preexisting condition is noted upon entry into service and the government fails to rebut the presumption of soundness by clear and unmistakable evidence both that the disease or injury existed prior to service and that the disease or injury was not aggravated by service, then the Veteran's claim is one of service connection by direct in-service incurrence. Wagner, 370 F.3d at 1096. The Veteran is presumed sound, even when as here there is evidence of a preexisting condition, if VA fails to show by clear and unmistakable evidence that a preexisting condition was not aggravated by service. Id. This essentially has the effect of converting an aggravation claim into one for a service-connected disability where the government could not show a lack of aggravation of a preexisting condition by clear and unmistakable evidence. Id. This means that no deduction for the degree of disability at the time of entrance will be made if a rating is awarded, even though the case is technically being awarded based on evidence of aggravation of a preexisting disorder. Id. On this point, the Court more recently reemphasized that once the presumption of soundness is applied, if VA is unable to rebut the presumption, the disease or injury that manifested in service is deemed incurred in service, such that the second element of service connection is established. At that point, however, a veteran still must establish that he or she has a current disability that is related to the in-service injury or disease. This nexus determination is based on a weighing of the evidence by the preponderance of the evidence standard, with the benefit of the doubt given to the Veteran. Gilbert v. Shinseki, 26 Vet. App. 48, 52 (2013). "It does not necessarily follow . . . that an unrebutted presumption of soundness will lead to service connection for the disease or injury. The claimant must still demonstrate a current disability and a nexus between his or her current disability and the injury or disease in service. Horn, 25 Vet. App. at 236-37. See also Holton v. Shinseki, 557 F.3d 1362, 1367 (Fed. Cir. 2009); Dye v. Mansfield, 504 F.3d 1289, 1292-93 (Fed. Cir. 2007) (affirming the Court's finding that the presumption of soundness does not eliminate the need to demonstrate a causal connection between a veteran's current condition and his in-service injury)." As to in-service evidence of incurrence, as discussed above, with respect to the first element of direct service connection, it is undisputed the Veteran has a current right knee disability. See August 2015 VA examination and Dr. D.M.'s March 2017 medical opinion. Additionally, as to the second element of service connection, there is evidence of in-service symptoms of a right knee disability, as indicated by the STRs dated in 1971. See 38 C.F.R. § 3.303(a). Finally, the evidence of record is at least in equipoise with respect to whether there is a nexus between the Veteran's in-service right knee symptoms and his currently diagnosed right knee osteoarthritis. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). Moreover, the Veteran has credibly stated that he has had continuing right knee symptoms from the 1970s to the present. There is no evidence of record identifying an intercurrent, post-service cause for the Veteran's knee condition. As a result, all three elements of service connection for a right knee disability have been met here. Undoubtedly, further medical inquiry can be undertaken with a view towards further developing this claim. However, in this regard, the Court has cautioned VA against seeking an additional medical opinion where favorable evidence in the record is unrefuted (or, as here, at worst evenly balanced for and against the claim) and indicated that it would not be permissible to undertake further development in this circumstance if the sole purpose was to obtain evidence against an appellant's claim. See Mariano v. Principi, 17 Vet. App. 305, 312 (2003). But see also Douglas v. Shinseki, 23 Vet. App. 19 (2009) (distinguishing Mariano and contrarily holding that VA may undertake the development of additional evidence if it is necessary to render an informed decision on the claim). Accordingly, resolving all reasonable doubt in the Veteran's favor, the evidence of record supports an award of service connection for right knee osteoarthritis. 38 U.S.C.A. § 5107 (b). VI. Service Connection for an Acquired Psychiatric Disorder The Veteran seeks service connection for an acquired psychiatric disorder, to include anxiety and depression, to include as secondary to his service-connected lumbar spine disability. Specifically, he contends that his current psychiatric disability is a result of his declining health. Having carefully considered this claim, in light of the evidence of record and the applicable law, the Board concludes that the Veteran's acquired psychiatric disorder was caused by or the result of his now service-connected lumbar spine disability and, therefore, the appeal will be granted. As noted above, the first element of secondary service connection requires medical evidence of a current disability. In August 2015, a VA examiner found a diagnosis of adjustment disorder with mixed anxiety and depression. In March 2017, Dr. J. Mangold provided a diagnosis of Major Depressive Disorder. As a result, the Veteran has satisfied the first element of secondary service connection. As previously mentioned, the second element of secondary service connection requires evidence of a service-connected disability. In this case, the Board has granted service-connection for a lumbar spine disability above. Therefore, the Veteran has satisfied the second element of secondary service connection. As stated above, the third element of secondary service connection requires medical nexus evidence establishing a connection between the service-connected disability and the current disorder. The Veteran was afforded a VA mental disorders compensation examination in August 2015. The Veteran reported being married for 12 years, but he noted that his wife had recently filed for divorce. He stated that his marriage had been good until he could no longer manage his pain. The Veteran reported that he started to experience anxiety in 2001, once he began receiving VA services. The VA examiner found a diagnosis of adjustment disorder with mixed anxiety and depression. The examiner noted the symptoms of the Veteran's condition included: depressed mood; anxiety; and, chronic sleep impairment. Further, the examiner summarized the Veteran's diagnosis as an occupational and social impairment with reduced reliability and productivity. The examiner opined that it was at least as likely as not that the Veteran's psychiatric condition was caused by or a result of his physical disabilities. While noting that the Veteran's functional impairment is primarily due to his physical condition, the examiner reiterated her opinion that the Veteran's adjustment disorder is secondary to these medical problems. Specifically, the examiner noted that the Veteran's anxiety is a result of his declining health, which began to decline while he was in boot camp during service. Similarly, in a March 2017 private psychiatric opinion, Dr. J.M. agreed with the August 2015 VA examiner's conclusion that the Veteran's acquired psychiatric disorder is secondary to his medical condition. Dr. J.M. indicated that following clinical evaluation of the Veteran, he believes the Veteran has a major depressive disorder. However, while Dr. J.M. noted an agreement with the VA examiner's determination that the Veteran's psychiatric difficulties relate to the injury he suffered in basic training, Dr. J.M. disagreed with both the VA examiner's conclusion that the Veteran's functional limitation are solely due to his physical ailments and the examiner's assessment of the severity of the Veteran's limitations. Nonetheless, Dr. J.M. opined that it is at least as likely as not that the Veteran's psychiatric condition is secondary to his lumbar spine disability, and noted that he had attributed an even higher degree of certainty in the matter. The Board notes that both the August 2015 VA examination report and Dr. J.M.'s March 2017 opinion are highly probative in support of the claim, as they represent the conclusions of medical professionals and are supported by explanations informed by review of the pertinent medical history and prior clinical findings made on examination. Moreover, there is no contradicting medical evidence of record. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). To be adequate, a medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder (or severity); instead, it must also support the conclusion with sufficient rationale and explanation. Stefl, 21 Vet. App. at 124. The probative value of an opinion is dependent, in part, upon the extent to which it reflects "clinical data or other rationale to support [the] opinion." Bloom v. West, 12 Vet. App. 185, 187 (1999). "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connected or rating context if it contains only data and conclusions." Neives-Rodriguez, 22 Vet. App. at 304, citing Stefl, 21 Vet. App. at 125 (holding that "a mere conclusion by a medical doctor is insufficient to allow the Board to make an informed decision as to what weight to assign to a doctor's opinion"); Miller v. West, 11 Vet. App. 345, 348 (1998) ("A bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record."); see also Dennis v. Nicholson, 21 Vet. App. 18, 22 (2007) ("The Court has long held that merely listing evidence before stating a conclusion does not constitute an adequate statement of reasons and bases." (citing Abernathy v. Principi, 3 Vet. App. 461, 465 (1992)). Based on the foregoing evidence of record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the most probative evidence of record supports a finding that the Veteran's acquired psychiatric disorder, to include adjustment disorder with anxiety and depression, and major depressive disorder, was caused by his service-connected lumbar spine disability. While the August 2015 examiner and Dr. J.M. found different psychiatric diagnoses and reached separate conclusions regarding the severity of the Veteran's condition, both medical opinions were consistent in establishing that his acquired psychiatric disorder was a result of his physical condition that began to decline following the in-service injury during boot camp. Having carefully considered the Veteran's claim, in light of the evidence of record and the applicable law, the Board concludes that the most probative evidence establishes that the Veteran's acquired psychiatric disorder, to include anxiety and depression, was caused by his service-connected disabilities and, thus, his claim of entitlement to service connection for an acquired psychiatric disorder is granted. ORDER 1. Service connection for a low back disability is granted. 2. Service connection for left lower extremity radiculopathy is granted. 3. Service connection for right lower extremity radiculopathy is granted. 4. Service connection for a right knee orthopedic disability is granted. 5. Service connection for an acquired psychiatric disorder, to include anxiety and depression, is granted. REMAND When the medical evidence of record is insufficient, the Board may supplement the record by seeking an advisory opinion or ordering another medical examination. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). Following review of the many VA examinations and medical opinions of record, the Board finds that additional development of the medical evidence is necessary before adjudicating the Veteran's claim of entitlement to service connection for a left knee disability. Specifically, the medical evidence of record currently only addresses whether the Veteran's left knee disability is directly related to his service. However, a medical opinion has not been providing regarding whether his left knee condition is secondary to his now service-connected lumbar spine disability and/or right knee disability. As a result, the Board finds that a medical opinion must be obtained to address whether the Veteran's left knee condition was caused or aggravated by his now service-connected lumbar spine disability and/or right knee disability. Additionally, the evidence of record indicates that the Veteran is unemployable, at least in part, because of his now service-connected disabilities. See August 2015 VA examinations; Dr. D.M.'s March 2017 medical opinion; and, Dr. J.M.'s March 2017 psychiatric opinion. However, until the AOJ assigns disability ratings for the recent award of service connection for the disabilities discussed above, it is unclear whether Veteran meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). Therefore, after the RO has assigned disability ratings to the newly granted service-connected disabilities and after it has completed the development requested herein, the issue of entitlement to a TDIU should be readjudicated in light of the additional evidence; and, if the claim is not granted, the matter should be returned to the Board for further appellate consideration. See Harris v. Derwinski, 1 Vet. App 180 (1991) (two issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on the resolution of a second issue). If, after the assignment of disability ratings, the Veteran continues to fail to meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), the AOJ should consider whether referral for extraschedular consideration is warranted. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Implement the Board's decision awarding service connection for a lumbar spine disability; bilateral lower extremity radiculopathy; right knee disability; and an acquired psychiatric disorder. 2. Obtain a medical opinion from an appropriate medical professional that addresses whether the Veteran's current left knee condition was incurred in or otherwise etiologically related to service, including as secondary to his service-connected disabilities. The claim file and a copy of this remand must be provided to the examiner. If, after review of the claim file, the examiner determines that another VA examination is necessary, such must be scheduled and the Veteran must be notified. Thereafter, the examiner must address the following: (a) Is it at least as likely as not (50 percent probability or more) that the Veteran's left knee condition is etiologically related to his service? (c) Is it at least as likely as not (50 percent probability or more) that the Veteran's left knee condition is proximately due to or aggravated by his service-connected lumbar spine disability? (d) Is it at least as likely as not (50 percent probability or more) that the Veteran's left knee condition is proximately due to or aggravated by his service-connected right knee disability? The examiner should note that the term "aggravated by" refers to "any increase in severity" of a nonservice-connected disability that is proximately due to or the result of a service-connected disability, and not due to the natural progress of the nonservice-connected disability. If the examiner opines that either the Veteran's service-connected lumbar spine or right knee disability has aggravated his left knee condition, then the examiner should specify, so far as possible, the degree of disability resulting from such aggravation. All answers to the questions listed above must be supported by a clear rationale. The examiner is asked to explain in detail the underlying reasoning for his or her opinion, to include citing to relevant evidence, supporting factual data, prior medical opinions, and medical literature, as appropriate. If any requested opinion cannot be provided without resorting to mere speculation, the examiner must explain why a more definitive response is not possible or feasible. In other words, merely saying he or she cannot respond will not suffice. The absence of evidence of contemporaneous medical evidence in the service treatment records cannot, standing alone, serve as the basis for a negative opinion. 3. Ensure that the requested examination report is responsive to the applicable rating criteria. If it is not, obtain all necessary additional information. Stegall v. West, 11 Vet. App. 268, 271 (1998). 38 C.F.R. § 4.2. 4. After completing the development requested in items 1 and 2, the AOJ should review the evidence and determine whether further development is warranted for a TDIU for the entire period on appeal. The AOJ should take any additional development as deemed necessary. 5. After completing the above and any other development deemed necessary by the AOJ, readjudicate the claims on appeal. If any issue remains denied, or is not granted to the Veteran's satisfaction, send him and his representative a Supplemental Statement of the Case (SSOC) and give them time to respond to it before returning the file to the Board for further appellate consideration of the claim. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ M. H. Hawley Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs