Citation Nr: 1753611 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 13-34 281A ) DATE ) ) On appeal from the Department of Veterans Affairs Medical and Regional Office Center in Wichita, Kansas THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right knee instability. 2. Entitlement to an initial rating in excess of 10 percent for left knee instability. 3. Entitlement to an initial rating in excess of 10 percent for right knee medial meniscus tear. 4. Entitlement to an initial rating in excess of 10 percent for left knee osteoarthritis, chondromalacia of patella, and medial meniscus tear. 5. Entitlement to an initial compensable rating for scar associated with left knee bursectomy. 6. Entitlement to an effective date earlier than July 15, 2011, for the award of service connection for right knee instability. 7. Entitlement to an effective date earlier than July 15, 2011, for the award of service connection for left knee instability. 8. Entitlement to an effective date earlier than July 15, 2011, for the award of service connection for right knee medial meniscus tear. 9. Entitlement to an effective date earlier than July 15, 2011, for the award of service connection for left knee osteoarthritis, chondromalacia of patella, and medial meniscus tear. 10. Entitlement to an effective date earlier than July 15, 2011, for the award of service connection for scar associated with left knee bursectomy. 11. Entitlement to a total rating based on individual unemployability due to service-connected disability (TDIU). ATTORNEY FOR THE BOARD R. Behlen, Associate Counsel INTRODUCTION The appellant served on active duty in the Air Force from June 1973 to July 1982. This matter comes before the Board of Veterans' Appeals (Board) from July 2012 and October 2013 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction was subsequently transferred to the RO in Wichita, Kansas. In the July 2012 rating decision, the RO granted service connection for right and left knee disabilities, effective March 26, 2012, and assigned an initial 10 percent disability rating for right knee instability under Diagnostic Code 5257 and a separate 10 percent rating for symptoms associated with a right knee medial meniscus tear, pursuant to Diagnostic Code 5260. See VA O.G.C. Prec. Op. No. 23-97 (July 1, 1997); 62 Fed. Reg. 63,604 (1997); see also VA O.G.C. Prec. Op. No. 9-98 (Aug. 14, 1998); 63 Fed. Reg. 56,704 (1998) (holding that compensating a claimant for separate functional impairment under Diagnostic Code 5257 (for instability) and Diagnostic Code 5003 (for arthritis and limitation of motion or arthritis and painful motion) does not constitute pyramiding). With respect to the left knee, the RO assigned an initial 10 percent rating for left knee instability, a separate 10 percent rating for left knee osteoarthritis, chondromalacia patella and meniscal tear, and a separate noncompensable rating for a left knee scar associated with a bursectomy. In August 2012, the appellant submitted a notice of disagreement with the initial ratings assigned for his service-connected knee disabilities. A Statement of the Case addressing these issues was provided to the appellant in November 2013. In the October 2013 rating decision, the RO assigned earlier effective dates of July 15, 2011, for the award of service connection for the appellant's right and left knee disabilities. In December 2013, the appellant submitted a VA Form 21-0958 (Notice of Disagreement), with the effective dates assigned by the RO for his service-connected right and left knee disabilities. The appellant also expressed continued dissatisfaction with the initial ratings assigned for his knee disabilities. The RO accepted this communication as a substantive appeal with respect to those initial rating issues. See DRO Conference report, dated May 28, 2015. In August 2015, the RO issued a Statement of the Case addressing the earlier effective date issues raised by the appellant's December 2013 NOD. The appellant perfected an appeal via his submission of a VA Form 9 in August 2015. The Board notes that in the July 2012 rating decision, the RO also granted service connection for chronic rhinosinusitis and assigned an initial noncompensable rating, effective April 19, 2012; and denied service connection for a broken nose. In August 2012, the appellant submitted a notice of disagreement with these determinations. In November 2013, a Statement of the Case addressing these issues was provided to the appellant. The appellant, however, did not thereafter submit a substantive appeal within the applicable time period nor did VA take any action which may constitute a waiver of the requirement for filing a timely substantive appeal. As such, these issues are not in appellate status. See Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). The Board notes that in an October 2015 statement, the appellant claimed that someone who helped him fill out a form decided to list his left knee scar, rather than note his complaints about a broken nose from technical school, which resulted in chronic sinusitis and dental problems. For the reasons discussed above, these issues are not in appellate status. The appellant is advised that, effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155. Should the appellant wish to file a claim for an increased rating for his chronic rhinosinusitis, an application to reopen the previously denied claim of entitlement to service connection for a broken nose, or a claim of service connection for a dental disability, he should do so on the proper form. Should the appellant wish to pursue a claim for a dental disability, he is advised that, under current VA regulations, service connection for VA compensation purposes is only available for specified dental and oral conditions which are specifically delineated in 38 C.F.R. § 4.150, including chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Compensation is also available for loss of teeth but only if such loss is due to loss of substance of body of maxilla or mandible due to trauma or due to disease such as osteomyelitis, but not due to the loss of the alveolar process as a result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Code 9913, Note. A veteran may be entitled to service connection for other dental conditions not listed in section 4.150, including treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease, for the sole purposes of receiving VA outpatient dental services and treatment, if certain criteria are met. 38 U.S.C.A. § 1712; 38 C.F.R. §§ 3.381(b), 17.161. The record reflects that the appellant submitted an application for TDIU in July 2012 and that entitlement to TDIU was denied in a February 2013 rating decision. No NOD was received within one year of such rating decision. However, a claim for TDIU, either expressly raised by the appellant or raised by the record, is not a separate "claim" for benefits, but rather, is part and parcel of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Further, the appellant stated on a substantive appeal, received in August 2015, that he was unemployable due to his bilateral knee disabilities. Thus, the issue of TDIU has been included above, as part and parcel of the claims for higher initial ratings for the appellant's right and left knee disabilities. In correspondence received in July 2017, the appellant requested that his appeal be advanced on the docket due to severe financial problems. He explained that he had recently inherited real estate and was experiencing difficulty making payments on the property as he had recently purchased a new car and had continued insurance payments on his car as well as his motorcycle. As such, he indicated that he could possibly be facing foreclosure on the property. In support of the claim, the appellant submitted various financial documents. 38 C.F.R. § 20.900(c) allows for advancement on the docket where a claimant is experiencing "severe financial hardship." Based on the evidence, however, the Board finds that the motion to advance on the docket is denied. Difficulty making payments on a second vehicle or home and worry about the possibility of a future foreclosure does not rise to the level of "severe" financial hardship as contemplated by the regulation. Absent evidence of an immediate or near term inability to meet reasonable family living expenses, severe financial hardship is not established. The issues of entitlement to initial ratings in excess of 10 percent for right knee instability, left knee instability, right knee medial meniscus tear, left knee osteoarthritis, chondromalacia of patella, and medial meniscus tear, and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The appellant's scar associated with left knee bursectomy is not painful, unstable, or otherwise symptomatic and its total area is not at least 39 square cm. (six square inches). 2. The appellant's original claim of entitlement to service connection for right knee bursitis and left knee tendonitis was received by VA in August 1982. 3. In an unappealed October 1982 rating decision, the RO denied entitlement to service connection for right knee bursitis and left knee tendonitis. 4. The appellant's request to reopen the claims of entitlement to service connection for bilateral knee disabilities was received by VA in February 2007. 5. In an unappealed July 2007 rating decision, the RO denied service connection for bilateral knee disabilities. 6. On July 15, 2011, the appellant's informal request to reopen his claim of service connection for a bilateral knee disability was received by VA. 7. The RO has awarded service connection for right knee instability, left knee instability, right knee medical meniscus tear, left knee osteoarthritis, chondromalacia of patella, and medial meniscus tear, and scar associated with left knee bursectomy, effective July 15, 2011. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for scar associated with left knee bursectomy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2016). 2. The criteria for an effective date earlier than July 15, 2011, for the award of service connection for right knee instability have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 20.1100 (2017). 3. The criteria for an effective date earlier than July 15, 2011, for the award of service connection for left knee instability have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 20.1100 (2017). 4. The criteria for an effective date earlier than July 15, 2011, for the award of service connection for right knee medical meniscus tear have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 20.1100 (2017). 5. The criteria for an effective date earlier than July 15, 2011, for the award of service connection for left knee osteoarthritis, chondromalacia of patella, and medial meniscus tear have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 20.1100 (2017). 6. The criteria for an effective date earlier than July 15, 2011, for the award of service connection for scar associated with left knee bursectomy have not been met. 38 U.S.C. §§ 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.400, 20.1100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 (VCAA) The appellant has not 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). II. Applicable Law A. Standard of Proof The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). "It is in recognition of our debt to our veterans that society has [determined that,] [b]y tradition and by statute, the benefit of the doubt belongs to the veteran." See Gilbert, 1 Vet. App. at 54. B. Increased Evaluations Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous. . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. i. Scars The appellant's scar associated with left knee bursectomy is rated under Diagnostic Code 7805, scars, other. Diagnostic Code 7805 directs the rater to evaluate any disabling effects not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. Scars of the head, face or neck are evaluated under Diagnostic Code 7800. Under Diagnostic Code 7801, scars (other than those of the head, face, or neck), that are deep or that cause limited motion are rated as follows: If the area or areas exceed 6 square inches (39 sq. cm.), a 10 percent rating is assigned. If the area or areas exceed 12 inches (77 sq. cm.), a 20 percent rating is assigned. Under Diagnostic Code 7802, scars (other than those of the head, face, or neck), that are superficial and that do not cause limited motion are assigned a maximum 10 percent rating if the scar covers an area of 144 square inches (929 sq. cm.) or more. Diagnostic Code 7803 provides a maximum 10 percent rating for a superficial scar which is unstable. Note (1) to this code provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Under Diagnostic Code 7804, a maximum 10 percent rating is warranted for one or two superficial scars which are unstable or painful on examination. 38 C.F.R. § 4.118, Diagnostic Code 7804. C. Effective Dates Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of an application therefor. 38 U.S.C. § 5110(a) (2012); 38 C.F.R. § 3.400 (2017). When there is a final denial of a claim, and new and material evidence is subsequently received, the effective date of the award of compensation is the date of receipt of the new claim or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(2). III. Analysis A. Entitlement to an initial compensable rating for scar associated with left knee bursectomy In May 2012, the appellant's scar associated with left knee bursectomy was observed; however, it was not painful or unstable; and its total area was not greater than 39 square cm. (6 square inches). During the appellant's July 2012 VA examination, such scar was observed to be a 5 cm. horizontal surgical scar on the patellar aspect of the left knee. As noted in the June 2015 VA examination report, the appellant's scar is not painful or unstable, it is not located on the head, face, or neck, and its total area is not at least 39 square cm. (six square inches). Rather, it measured 5 cm. by 0.2 cm. The examiner stated that one was "almost not able to see" such scar, and noted that it was well-healed and superficial. The appellant has not contended otherwise. The Board notes that the appellant has specifically stated that he does not seek compensation for such scar. See August 2015 Substantive Appeal ("I have never asked or applied for anything having to do with my scar"). Thus, the Board finds that the preponderance of the evidence is against the award of an initial compensable rating for scar associated with left knee bursectomy because the characteristics of such scar do not meet the requirements for a compensable rating under any diagnostic code for scars. As the evidence preponderates against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). B. Service connection effective dates The appellant seeks an effective date earlier than July 15, 2011, for the awards of service connection for right knee instability, left knee instability, right knee medical meniscus tear, left knee osteoarthritis, chondromalacia of patella, and medial meniscus tear, and scar associated with left knee bursectomy. The appellant's original application for compensation was received by VA in August 1982, upon which he claimed service connection for bursitis of the right knee and tendonitis of the left knee. In an October 1982 rating decision, the RO denied service connection for the claimed disabilities. The appellant was duly notified of the RO's decision and his appellate rights. The appellant did not appeal, nor was new and material evidence received, within one year of notification of such decision. Absent a showing of clear and unmistakable error, which has not been shown or alleged here, this decision is final. 38 U.S.C. § 4005(c) (1976); 38 C.F.R. §§ 3.104, 19.118, 19.153 (1982). The appellant again filed a claim of service connection for bilateral knee disabilities, received in February 2007. In a July 2007 rating decision, the RO denied service connection for bilateral knee disabilities. The appellant was duly notified of this determination and his appellate rights in a July 2007 letter, but he did not appeal, nor was new and material evidence received, within one year of notification of such decision. Absent a showing of clear and unmistakable error, which has not been shown or alleged here, this decision is final. 38 U.S.C. § 7105(c) (2002); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2006). On July 15, 2011, VA received a Statement in Support of Claim from the appellant upon which he requested his service records to demonstrate the need for bilateral knee replacement. In March 2012, the appellant telephoned the RO and indicated that he would like to initiate a claim of service connection for bilateral knee disabilities. After considering the new and material evidence assembled in support of the claims, including a July 2012 VA medical opinion linking the appellant's current knee disabilities to his active service, in a July 2012 rating decision, the RO reopened the claims and granted service connection for right knee instability, left knee instability, right knee medical meniscus tear, left knee osteoarthritis, chondromalacia of patella, and medial meniscus tear, and scar associated with left knee bursectomy, effective March 26, 2012. In an October 2013 rating decision, the RO assigned an earlier effective date for each disability of July 15, 2011, the date of receipt of the appellant's statement that he was trying to demonstrate the need for a bilateral knee replacement, because the RO determined that such statement was an informal claim to reopen his previously denied claims of service connection for bilateral knee disabilities. As set forth above, the law provides that the effective date of an award of compensation based on a claim reopened after a final adjudication shall be the date of receipt of the new claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(q)(2). In this case, the RO has awarded an effective date of July 15, 2011, corresponding to the date of receipt of the appellant's request to reopen. The appellant has pointed to no earlier pending claim to reopen, formal or informal, and a review of the record reveals no communication which could be construed as a claim to reopen prior to September 20, 2010. See 38 C.F.R. § 3.151, 3.155. In reaching this determination, the Board has considered VA clinical records showing that on September 20, 2010, the appellant complained of bilateral knee pain and was diagnosed as having bilateral knee osteoarthrosis. Although clinical records may, in some instances, be considered informal claims under 38 C.F.R. § 3.157(b)(1), this provision is inapplicable, as the clinical evidence does not pertain to examination or treatment of a disability for which service connection has been previously established. Pacheco v. Gibson, 27 Vet. App. 21 (2014). The Board has also carefully considered the appellant's contentions in his August 2015 substantive appeal to the effect that an earlier effective date is warranted because he has experienced bilateral knee problems since 1977. Under 38 U.S.C. § 5101(a), a specific claim must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. See also 38 C.F.R. § 3.151(a). Here, the record does not show, nor does the appellant contend, that he filed a claim of service connection in 1977. Although he filed earlier claims in 1982 and 2007, those claims were denied because the evidence then of record did not support an award of service connection. Because the appellant did not appeal those determinations, they are final. The appellant's application to reopen, received on July 15, 2011, was granted based on the receipt of new and material evidence, including a VA medical opinion linking his current knee disabilities to service. Again, the applicable law provides that the effective date of an award of compensation based on a claim reopened after final disallowance will be the date of receipt of the claim or date entitlement arose, whichever is later. See 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. Thus, July 15, 2011, is the appropriate effective date of the award of service connection. See Flash v. Brown, 8 Vet. App. 332, 340 (1995) ("When a claim to reopen is successful and the benefit sought is awarded upon readjudication, the effective date is the date of the claim to reopen."). ORDER Entitlement to an initial compensable rating for scar associated with left knee bursectomy is denied. Entitlement to an effective date earlier than July 15, 2011, for the award of service connection for right knee instability is denied. Entitlement to an effective date earlier than July 15, 2011, for the award of service connection for left knee instability is denied. Entitlement to an effective date earlier than July 15, 2011, for the award of service connection for right knee medial meniscus tear is denied. Entitlement to an effective date earlier than July 15, 2011, for the award of service connection for left knee osteoarthritis, chondromalacia of patella, and medial meniscus tear is denied. Entitlement to an effective date earlier than July 15, 2011, for the award of service connection for scar associated with left knee bursectomy is denied. REMAND In his August 2015 VA Form 9, the appellant contends that the VA examination for his knee disabilities was insufficient because both active and passive ranges of motion were not tested. The U.S. Court of Appeals for Veterans Claims (Court) has held that, pursuant to 38 C.F.R. § 4.59 (2017), joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing situations, in order for an examination to be considered adequate. See Correia v. McDonald, 28 Vet. App. 158 (2016). Thus, the appellant must be afforded an appropriate examination for his bilateral knee disabilities. As discussed above, the appellant's claim of TDIU is part and parcel of his claims for increased ratings for his bilateral knee disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As resolution of the appellant's bilateral knee claims may have an impact on the appellant's claim of entitlement to TDIU, the issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue would have a "significant impact" upon another, and that impact in turn could render any appellate review meaningless and a waste of judicial resources, the two claims are inextricably intertwined). The appellant originally designated the Texas Veterans Commission as his representative. Since that time, however, he has relocated to Kansas. During his May 2015 Decision Review Officer (DRO) hearing, the appellant was informed that the Texas Veterans Commission does not take jurisdiction of cases outside the State of Texas. Thus, the appellant no longer has representation. The appellant expressed a desire to possibly pursue different representation in the future. However, absent a formal designation, the Board cannot recognize any representation at this time. See 38 C.F.R. §§ 20.602 - 20.605. Thus, should the appellant desire representation, he should contact a representative or Veterans Service Organization and submit the proper appointment of representative form to the RO. Accordingly, the case is REMANDED for the following action: 1. Any outstanding VA medical records should be associated with the claims file. 2. Develop and adjudicate the issue of entitlement to a TDIU, to include providing the Veteran with the formal TDIU application form (VA Form 21-8940). 3. Schedule the appellant for an appropriate medical examination to clarify the severity of his multiple service-connected right and left knee disabilities. Access to the appellant's electronic VA claims file should be made available to the examiner for review in connection with the examination. After examining the appellant and reviewing the record, the examiner should specifically delineate all pathology and symptoms attributable to the service-connected right and left knee disabilities, to include any arthritis and/or meniscal pathology, as well as any limitation of motion, instability, subluxation, locking, pain or effusion. The examination report should include the range of motion of the right and left knee in degrees. The examiner must, to the extent practicable, specifically measure both active and passive range of motion, in weight-bearing and nonweight-bearing, as required by 38 C.F.R. § 4.59. If any such testing cannot be performed on the joint at issue, he or she should state so and provide an explanation. Additionally, the examiner should comment on the extent of any functional impairment resulting from painful motion, weakness, fatigability, and incoordination. If feasible, this determination should be expressed in terms of the degree of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. A clear rationale for all opinions must be provided. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. 5. When the development requested has been completed, the case should be readjudicated by the AOJ. If any benefit sought is not granted in full, the appellant should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ K. Conner Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs