Citation Nr: 1756791 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 12-09 742 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for right ear hearing loss. 2. Entitlement to service connection for right ear hearing loss. 3. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for a back disability. 4. Entitlement to service connection for a back disability. 5. Entitlement to service connection for irritable bowel syndrome (IBS). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C.S. De Leo, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1988 to August 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). When the Veteran filed his April 2012 substantive appeal following issuance of a March 2012 statement of the case, he requested a Board hearing. Initially, the Veteran was scheduled for a Board Hearing at the Central Office in Washington D.C. in March 2017, which following grant of motion to postpone hearing, was rescheduled in April 2017. Thereafter, in August 2017, the Veteran filed a motion to postpone the October 2017 hearing. In a September 2017 ruling, the Veteran's Law Judge assigned to preside over the hearing denied the motion finding that the Veteran's request to postpone the October 2017 hearing based on traveling out of the country on business is not good cause for failing to appear for the scheduled hearing. 38 C.F.R. § 20.702. The issue of entitlement to service connection for right ear hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. In a May 1994 decision, the RO denied service connection for right ear hearing loss; the Veteran did not timely initiate an appeal of that decision within one year of notification. 2. Evidence added to the record since the May 1994 decision denying service connection for right ear hearing loss, relates to an unestablished fact necessary to substantiate that claim and raises a reasonable possibility of substantiating that claim. 3. In a March 2009 decision, the RO denied service connection for a back disability; the Veteran did not timely initiate an appeal of that decision within one year of notification. 4. Evidence added to the record since the March 2009 decision denying service connection for a back disability, relates to an unestablished fact necessary to substantiate that claim and raises a reasonable possibility of substantiating that claim 5. The Veteran has not have IBS at any time from contemporaneous to when he filed his claim to the present. 6. The Veteran's current back disability did not have onset during active service and was not caused by active service. CONCLUSIONS OF LAW 1. The May 1994 RO decision that denied service connection for right ear hearing loss is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §20.1103 (2017). 2. The criteria for reopening a claim of entitlement to service connection for right ear hearing loss have all been met. 38 U.S.C. § 5108 (West 2014); 38 C.F.R. §3.156 (a) (2017). 3. The March 2009 RO decision that denied service connection for a back disability is final. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §20.1103 (2017). 4. The criteria for reopening a claim of entitlement to service connection for a back disability have all been met. 38 U.S.C. § 5108 (2012); 38 C.F.R. §3.156 (a) (2017 5. The criteria for service connection for a back disability have not all been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 6. The criteria for service connection for IBS have not all been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Reopening Hearing Loss and Lumbar Spine Claims A. Right Ear Hearing Loss Prior to the filing of the current claim of entitlement to service connection for a right ear hearing disability, the AOJ previously denied a claim of service connection for right ear hearing loss in May 1994. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §20.1100 (2017). Once the AOJ makes a determination as to a claim, it must mail to the claimant, and his or her representative if there is one, proper notice of the decision, including notice of the claimant's procedural due process and appellate rights. 38 U.S.C. § 7105 (b)(1) (2012); 38 C.F.R. §§ 3.103 (b)(1), 19.25, 20.1103 (2017). An appeal of an AOJ decision to the Board is initiated by the filing of a notice of disagreement (NOD) with the decision. 38 U.S.C. § 7105 (a) (2012); 38 C.F.R. § 20.200 (2009). An NOD is a statement, reduced to writing, which can reasonably be construed as expressing dissatisfaction with the AOJ's decision and a desire to contest the result. 38 U.S.C. § 7105 (b); 38 C.F.R. § 20.201 (2009). Except in the case of simultaneously contested claims (which this is not) the NOD must be filed within one year from the date of mailing of result of the initial determination. See 38 U.S.C. § 7105 (b)(1); see also 38 C.F.R. §§ 20.200, 20.201, 20.302 (2009). If a timely NOD is not filed, the determination becomes final and the claim will not thereafter be reopened or allowed, except as may otherwise be provided by regulations not inconsistent with Title 38 of the U.S. Code. 38 U.S.C. § 7105 (c) (West 2014). If the claimant files a timely NOD and the disagreement is not resolved, the AOJ must provide the claimant and his or her representative, if there is one, with an SOC. 38 U.S.C. § 7105 (d) (2012); 38 C.F.R. § 19.30 (2017). As a general rule, the appellant must file a substantive appeal within 60 days of the mailing of the SOC or within one year of the notice of the decision being appealed, whichever is later. 38 U.S.C. § 7105 (d)(1); 38 C.F.R. § 20.302 (b) (2017). A substantive appeal consists of a properly completed VA Form 9 or a correspondence containing the necessary information. 38 C.F.R. § 20.200 (2009). If a claimant fails to respond after receipt of the SOC, the AOJ may close the case. 38 U.S.C. § 7105 (d)(3); 38 C.F.R. § 19.32 (2017). Once the AOJ closes the case for failure to complete the appeal to the Board, the AOJ decision is final. 38 U.S.C. § 7105 (c); 38 C.F.R. § 20.1103. The exception to this rule of not reviewing the merits of a finally denied claim is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. The regulation that implements 38 U.S.C. § 5108 defines "new and material evidence" as evidence not previously submitted to agency decision makers which is neither cumulative nor redundant of evidence previously of record, and which by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim, and which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2017). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence already of record and must raise a reasonable possibility of substantiating the claim. Id. Of note, under 38 C.F.R. § 3.156(b), "new and material" evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. If VA receives new evidence within the appeal period of an AOJ decision, it must make a determination as to whether the evidence is new and material and if it does not do so then the claim does not become final but rather it remains pending. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). In determining whether evidence is "new and material," the credibility of the evidence in question must be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, the AOJ first denied service connection for right ear hearing loss disability in a May 1994 decision because the Veteran did not have a current hearing loss disability. The Veteran was notified of the decision by letter dated in June 1994. No relevant evidence was received within one year of that decision and the Veteran did not appeal the decision to the Board. Thus, that decision became final. See 38 U.S.C.A. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. Relevant evidence submitted since the May 1994 decision includes a VA examination afforded in September 2009 and June 2010 with medical opinion and diagnosis for right ear hearing loss. As this new evidence relates to the basis of the prior denial and raises a reasonable possibility of substantiating the claim, reopening of the claim for entitlement to service connection for right ear hearing loss is warranted. B. Back Claim Prior to the filing of the current claim of entitlement to service connection for a low back disability, the AOJ previously denied a claim of service connection for a low back disability in March 2009. Generally, a claim which has been denied in an unappealed AOJ decision is final and may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c) (West 2014); 38 C.F.R. §20.1100 (2017). Here, the AOJ previously denied service connection for a back disability in a March 2009 decision because the Veteran did not have a current back disability. The Veteran was notified of the decision by letter dated in April 2009. No relevant evidence was received within one year of that decision and the Veteran did not appeal the decision to the Board. Thus, that decision became final. See 38 U.S.C.A. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. Relevant evidence submitted since the March 2009 decision includes a VA examination afforded in April 2010 and December 2012 with medical opinion and diagnosis for lumbar strain. As this new evidence relates to the basis of the prior denial and raises a reasonable possibility of substantiating the claim, reopening of the claim for entitlement to service connection for a back disability is warranted. II. Due Process VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See eg. 38 U.S.C. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2017). In the instant case, VA provided adequate notice letters sent to the Veteran in February 2009 and March 2010. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service and VA treatment records are associated with the claims file. VA provided relevant examination as discussed in further on in the decision. There is no indication of additional existing evidence that is necessary for a fair adjudication of these claims that are the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. III. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"- the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A. Back Claim The Veteran seeks service connection for a back disability. He asserts the onset of back problems occurred in February 1990, in service, when he fell off the back of a truck during service in Iraq. In this case, the dispositive issue is whether there is a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Private treatment records include those of Road Family Practice, which show diagnoses of back strain and degenerative disc disease of the lumbar spine. There is no associated nexus opinion. Private treatment records also include those of Atlantic Orthopaedic Specialists, which show the Veteran presented with complaints of low back pain. A June 2010 record shows x-rays identified a degree of degenerative finding at L5-S1, with no instability noted on the films. Diagnoses were low back pain, degenerative disks of the lumbar spine, and "prior disk herniation." There is no associated nexus opinion. Correspondence dated in September 2010 from T.E.B, M.D., a private clinician of Atlantic Orthopaedic Specialists indicates the Veteran presented with complaints of back problems. He reported the onset of back pain during military service. Specifically, he reports that he injured his back on two occasions during service. There is no further discussion on the injury. According to the Veteran's reports he experienced pain on the left side of his lower back and the right side is also affected at times. Following examination, Dr. B diagnosed chronic low back pain with "degenerative appearance to at least one of the lumbar discs at L5-S1." There is no associated nexus opinion. VA records include the April 2010 and December 2012 VA-contracted exams. Treatment records show the Veteran presented with back pain following an injury. He was diagnosed with chronic back pain status-post herniated disc. The April 2010 VA examination report shows the examiner diagnosed lumbar strain. The examination report indicates that the examiner reviewed the Veteran's claims file and medical records in conjunction with the evaluation. The resulting examination report notes the Veteran reported that he initially injured his back in 1989 during military service when a hammer crashed into a pitch and a fuel tank hit his back. Thereafter, he injured his back again in 1990 when he fell out of a truck. The examiner opined that the currently diagnosed lumbar strain is less likely than not related to active duty or treatment in service for thoracic muscle strain. Noting the December 1990 service treatment record indicating the Veteran was treated for a lifting injury with pain in the mid-back, the examiner's rationale was the location of the Veteran's current lumbar strain is different than the location of pain during military service. Additionally, the examiner explained that there is only one isolated visit for transient muscle strain in the record, without evidence of ongoing issues with the back or documentation of back problems since the 1990 injury, it is difficult to establish that the current issue is a continuation. Upon review of the report of the April 2010 examination, the Board finds that it is provided minimal probative weight. Here, the examiner concluded that without continued documentation of back problems since the 1990 injury, it is difficult to establish that the current condition is associated with the in service treatment for muscle strain. The examiner failed to discuss the private treatment records from Road Family Practice and Atlantic Orthopaedic Specialists associated with the claims file in December 2005. On VA-contracted examination in December 2012, the examination report indicates that the examiner reviewed the Veteran's claims file and medical records in conjunction with the evaluation. The resulting examination report notes the Veteran reported that he injured his back in February 1990 during military service. He reported that he fell off the back of a truck during service in Iraq. Examination revealed full range of motion with repetitive testing and no objective observation of pain. X-rays of the spine were also normal. The examiner opined that the claimed back condition was less likely than not incurred or caused by the claimed in-service injury, event, or illness. The examiner opined the Veteran currently does not have diagnosis of a condition of the spine finding that the condition has resolved. The examiner's rationale was in 1990, during military service, the Veteran was diagnosed with midline bilateral thoracic paraspinal tenderness, which is different from chronic lumbar pain, which is what he is currently complaining and for which he is being treated. The examiner explained that in 1990 he was treated for the upper back and not the lower back and he did not seek treatment again until August 2006, many years following the back incident. The examiner opined the back injury did not show signs of any serious back injury but instead post-service treatment demonstrates that your in-service back injury was acute and transitory. The examiner concluded this is also consistent with the current examination findings of a normal exam with full range of motion and the December 2012 x-rays which revealed no significant abnormal findings. For the following reasons, the Board finds that entitlement to service connection for a back disability is not warranted. The Board acknowledges the Veteran's reports that the onset of back problems was during military service. Specifically, that he injured his back when he fell from the back of a truck. He also reported since that time, he has continued to have the same back pain. In this regard, given the following reasons, the record tends to show that the Veteran is not an accurate historian. In assessing the Veteran's credibility regarding his symptoms of back pain, the Board looks to the consistency of his statements and clinical histories. Here, the record shows the first evidence of treating back pain or any associated condition was private treatment records in 2007. The Board notes that these diagnoses are nearly 14 years following service discharge. In this regard, the Board is not rejecting the Veteran's reports of continuous symptoms of back pain since service as not credible based on lack of corroborating medical evidence. Rather, this determination is based on comparison of the Veteran's reports for his claim with his reports at other times as to the existence and timing of his symptoms, as well as a lack of reports in certain records where they would be expected. For instance, during military service. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Cf. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). As such, the Board has considered the Veteran's assertions, but affords them only the most minimal of probative value. The Board acknowledges the Veteran's contentions of when his symptoms arose. As to non-expert or lay opinions with regard to diagnoses or a relationship of a condition to service ("nexus"), whether such opinions are competent evidence depends on the question at issue and the particular facts of the case. A review of the record evidence shows there is no indication that the Veteran has medical expertise. Whether a specific incident in service nearly 14 years ago of back pain, leads to current disability, is not a simple question subject to non-expert opinion evidence. Thus, the Veteran's reported history, when considered with the medical evidence of record, and in the context of the record, as a whole, is more probative than the Veteran's general lay statements. Acevedo v. Shinseki, 25 Vet. App. 286, 294 (2012) (medical reports must be read as a whole and in the context of the evidence of record). Moreover, there is no contrary medical opinion in the evidence of record. Given the above, the Board finds that the most probative evidence of record shows that the Veteran does not have a current back condition that is due to incident during service and did not begin in service. Specifically, the December 2012 examination report regarding the etiology of the Veteran's back condition weighs against his claim. The examiner reviewed the overall clinical data and concluded that the post-service treatment demonstrates that in-service back injury was acute and transitory. The examiner concluded this is also consistent with the current examination findings of a normal exam with full range of motion and the December 2012 x-rays which revealed no significant abnormal findings. The examiner concluded that the Veteran did not seek treatment again until August 2006, which is many years following service discharge. The December 2012 VA-contracted examiners opinion is entitled to significant probative weight because the examiner explained the reasons for his conclusions based on an accurate and comprehensive review of the relevant evidence of record, including the Veteran's lay statements. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In this regard, if the Veteran had been experiencing recurrent symptoms of back problems during service, it would be reasonable to infer that he would have reported such symptoms during his reports of history, especially because he did report to medical for his back in December 1990 but thereafter did not report having back pain or any back problems until August 2006, 13 years after service discharge. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011) (stating that the Board, as fact finder, is permitted to draw inferences based on the evidence, so long as any such inference does not result in a medical determination). Thus, the fact that the Veteran did not report having any problems related to the back for many years post-service separation, when he presently contends that he has experienced back pain since service weighs against any assertion that these symptoms began during service and continued after service. Notably, service treatment records during this period reflect that the Veteran sought treatment for other conditions; thus it is reasonable to infer that had he experienced consistent back pain he would have reported it. Especially considering he reported back pain in service in December 1990 but did not report having back problems or any diagnosis related to the back until nearly 13 years later in 2006 as shown in private treatment records. Thus the December 2012 opinion of the VA-contracted examiner that the Veteran's thoracolumbar spine in service was acute and transitory and resolved is probative evidence against the Veteran's claim. The probative evidence of record indicates that the Veteran does not have a back disability related to incident in service. Specifically, the Veteran's earliest indication of back diagnosis, as shown by the medical evidence of record, was many years following separation from active service. The Board notes that this lapse in time weighs against the Veteran's claims. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as a factor in resolving a claim). In arriving at the decision to deny this claim, the Board has considered the applicability of the benefit-of-the-doubt rule enunciated in 38 U.S.C. § 5107(b). However, as there is not an approximate balance of evidence, that rule is not applicable in this case. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). B. Irritable Bowel Syndrome (IBS) The Veteran seeks service connection for IBS. In light of the following, the Board finds that entitlement to service connection is not warranted in this case. Pertinent evidence of record includes the June 2012 and December 2016 examination reports. These reports show that the Veteran does not have a current IBS disability. The June 2012 VA-contracted examination report shows the Veteran reported symptoms of burning down his chest, daily abdominal pain, frequent diarrhea, and bad odor on defecation. He also reports that he was diagnosed with IBS in 2003. The December 2016 VA Gulf War General Medical Examination report indicates that the examiner reviewed the Veteran's claims file and medical records in conjunction with the evaluation. The resulting examination report notes the Veteran reported that he had one, normal formed solid bowel movement daily and occasional diarrhea. Following examination, the examiner opined there is insufficient evidence to warrant or confirm irritable bowel syndrome or its residuals. The examiner's rationale was the Veteran reported normal formed bowel movements daily, which is inconsistent with a chronic condition noting the medical evidence of record is devoid of gastrointestinal condition to include a 2008 gastroenterology specialist report. The examiner concluded there was no Gulf War related chronic multisymptom illness or unexplained conditions identified. In light of the foregoing, the Board finds that service connection for IBS is not warranted. First, the record does not show a competently diagnosed IBS disability or any unidentifiable symptoms related to an unidentifiable illness at any time from contemporaneous to when the Veteran filed his claim to the present. A current disability is the cornerstone of a claim for VA disability compensation and in the absence of proof of a present disability, there can be no valid claim. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and therefore the decision based on that interpretation must be affirmed). As a current disability is required to establish entitlement to service connection for a particular disability, entitlement to service connection for IBS is not warranted. ORDER The claim of entitlement to service connection for a back disability is reopened, and to that extent only, the appeal is granted. The claim of entitlement to service connection for right ear hearing loss is reopened, and to that extent only, the appeal is granted. Service connection for a back disability is denied. Service connection for IBS is denied. REMAND The Veteran seeks service connection for right ear hearing loss. Upon review of the report of the examination, the Board finds it is inadequate to rely upon in this case. First, the December 2012 VA-contracted examiner provided conflicting etiology opinions. He opined that the etiology of tinnitus was not associated with hearing loss. However, he also opined that "the veteran's asymmetrical nature of hearing loss, unilateral right ear tinnitus and symptoms of dizziness is related and therefore less than likely that the hearing loss is related to noise exposure." He concluded "[s]ymptoms of unilateral hearing loss, tinnitus and dizziness are commonly related symptoms that require further evaluation to rule out retrocochlear pathology." He clarified this opinion by further opining that the triad of symptoms described by the Veteran indicates that further testing is necessary to rule out underlying retrocochlear pathology and suggested evaluation by ENT and/or a Neurologist. Notably, the Veteran is service-connected for tinnitus. As the opinion of the December 2012 VA-contracted examiner is unclear, an addendum opinion is required to determine whether or not right ear hearing loss is related to service-connected tinnitus. Additionally, the examiner did not provide an opinion as to the probability of any relationship between the Veteran's current right ear hearing loss and military service (i.e. 50 percent or greater probability). Finally, the examination report also indicates the examiner did not review medical records as it is noted they were not provided for review. Accordingly, on remand, the AOJ is to ensure the Veteran's claims file is provided to the clinician for review prior to rendering an addendum opinion. Accordingly, the case is REMANDED for the following action: 1. Provide the claims file to an appropriate practitioner to determine whether the Veteran's current right ear hearing loss is related to military service. A new examination is only required if deemed necessary by the AOJ or the practitioner. The entire claims file must be made available to the practitioner for review. After reviewing the file, the practitioner must provide an opinion on the following: (a) Whether it is at least as likely as not (50 percent or greater probability) the Veteran's right ear hearing loss: (1) began during active service; or (2) is otherwise related to his active duty service, to include the back injury and symptoms described by the Veteran also documented in his service treatment records. If the examiner opines that right ear hearing loss is not related to military service or injury incurred during military service, the examiner should opine as to: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that right ear hearing loss was chronically worsened or aggravated beyond normal progression by the Veteran's service-connected tinnitus disability. The examiner must include a complete rationale to support any opinion provided. 2. Then, readjudicate the claim that is the subject of this Remand. If the benefit sought is not granted in full, furnish to the Veteran and his representative a supplemental statement of the case (SSOC) and allow for an appropriate opportunity to respond thereto before returning the case to the Board, if otherwise in order. The Veteran has the right to submit additional evidence and argument on the matter 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 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 ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs