Citation Nr: 1803675 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 16-47 734 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial compensable evaluation for a right ear disorder classified as right ear canal stenosis. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD C. Eckart, Counsel INTRODUCTION The Veteran served on active duty from August 1960 to July 1962. This matter comes to the Board of Veteran's Appeals (Board) on appeal from a July 2015 rating decision which granted service connection for a right ear canal stenosis and assigned an initial compensable rating. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT For the entire rating period on appeal, the Veteran's right ear canal stenosis has been manifested by symptoms of tinnitus and two episodes of right ear hearing loss shown to correspond to a Level I and Level III hearing loss; but with no evidence of vestibular disorder with vertigo or dizziness; no evidence of suppuration or aural polyps; and no evidence of recurrent itching and discharge requiring frequent and prolonged treatment. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for an initial 10 percent disability rating, and no higher, for right ear canal stenosis with symptoms of tinnitus have been met. 38 U.S.C. § 1155 (2014); 38 C.F.R. §§ 4.3, 4.7, 4.20, 4.87; Diagnostic Code 6200, 6260 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). Additionally the Board is granted the requested rating (10 percent) raised by the Veteran in his October 2008 notice of disagreement (NOD), accordingly any error in the duty to notify and assist is harmless in this instance. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2016). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1 (2016). Ratings are established by comparison to a specific Diagnostic Code (DC) in the Rating Schedule. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2016). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2016) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran's service-connected disabilities. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Service connection was granted for a right ear disorder in a July 2015 rating decision, and an initial noncompensable rating was established under the rating criteria for chronic otitis externa under an analogous rating. 38 C.F.R. § 4.20. Otitis externa (inflammation or infection of the external auditory canal, the auricle, or both) is evaluated under Diagnostic Code 6210, which provides a maximum10 percent disability rating for swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. 38 C.F.R. § 4.87. The Board shall consider other potentially applicable criteria. As will be discussed further, review of the evidence discloses that it is in equipoise as to whether the manifestations of the service connected right ear canal stenosis more closely resemble the criteria of chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination). Thus, the Board shall consider these criteria, as well as the criteria for otitis externa. Chronic suppurative otitis media, mastoiditis, or cholesteatoma (or any combination) is rated in accordance with 38 C.F.R. § 4.87, Diagnostic Code 6200. A 10 percent rating is warranted during suppuration or with aural polyps. Hearing impairment, and complications such as labyrinthitis, tinnitus, facial nerve paralysis, or bone loss of skull, are rated separately. 38 C.F.R. § 4.87, Diagnostic Code 6200, Note (2017). Chronic nonsuppurative otitis media with effusion (serous otitis media) is rated on the basis of hearing impairment. 38 C.F.R. § 4.87, Diagnostic Code 6201. A 10 percent rating is warranted for recurrent tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. A separate evaluation for tinnitus may be combined with an evaluation under diagnostic codes 6100, 6200, 6204, or other diagnostic code, except when tinnitus supports an evaluation under one of those diagnostic codes. 38 C.F.R. § 4.87, Diagnostic Code 6260, NOTE (1). Bilateral hearing loss is evaluated under Diagnostic Code 6100. 38 C.F.R. § 4.86. Chronic nonsuppurative otitis media is evaluated under Diagnostic Code 6201, which uses the same hearing impairment criteria as bilateral hearing loss under Diagnostic Code 6100. 38 C.F.R. § 4.86. VA recognizes impaired hearing as a disability for service-connection purposes pursuant to 38 C.F.R. § 3.385, which provides that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. Evaluations for defective hearing are based upon organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, along with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85, Tables VI, VII. To evaluate the degree of disability for service-connected bilateral hearing loss, the rating schedule establishes eleven auditory acuity levels, designated from Level I for essentially normal acuity, through Level XI for profound deafness. Table VI is used to determine the Roman numeric designation, based on test results consisting of puretone thresholds and Maryland CNC test speech discrimination scores. The numeric designations are then applied to Table VII to determine the appropriate rating for hearing impairment. Id. Where there is an exceptional pattern of hearing impairment, a rating based on pure tone thresholds alone may be assigned (Table VIA). This alternative method for rating hearing loss disability may be applied if the puretone thresholds at 1000, 2000, 3000, and 4000 Hertz are all at 55 decibels or higher, or if the puretone threshold at 1000 Hertz is 30 or less and at 2000 Hertz is 70 or more. 38 C.F.R. § 4.86. Each ear is to be evaluated separately under this part of the regulations. If a veteran is only service-connected for hearing loss in one ear, the non-service connected ear will be assigned a hearing impairment level of I. 38 C.F.R. § 4.85 (f). Table VII is used to combine the Roman numeral designations to determine the schedular evaluation. 38 C.F.R. § 4.85 (e). Ratings for hearing impairment are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345 (1992). Initially, the Board finds that the evidence is in equipoise as to whether certain symptoms are associated with the service-connected right ear canal stenosis. Specifically, there is evidence of right ear hearing loss and tinnitus that is as likely as not associated with the right canal stenosis. Conflicting opinions were obtained from VA examiners in March 2017 as to whether these were manifestations of stenosis. The favorable opinion was provided by the VA physician J. O-M, who initially determined in a July 2015 VA examination that the Veteran's diagnosed right ear canal stenosis with claimed ear discomfort originated from in-service ear trauma requiring suturing including the canal with recurrent cerumen build up and with greater hearing loss then the left, although the audiological test results did not meet the VA criteria for hearing loss at the time. See 38 C.F.R. § 3.385. Dr. J. O-M gave favorable opinions in VA examinations on March 3, 2017 and again on March 20, 2017 finding the Veteran's right ear canal is collapsed compared to the non-damaged ear and noting associated symptoms of hearing loss that had progressed to the point where he required hearing aids and tinnitus increased to the point that it interfered with sleep. The opinion was accompanied by rationale explaining the findings on prior audiogram in May 2016 showing mild to severe sensorineural nearing loss with negative middle ear pressure as well as the physical findings of the collapsed ear canal when compared to the left ear. Therefore his claim of ear blockage was at least as likely as not incurred by ear trauma. His external ear canal was also noted to be so stenosed that even the smallest hearing aids could not fit inside his ear without pain and discomfort. His tinnitus was noted to be present since the event that injured his ear. Later on March 20, 2017, when addressing whether other peripheral vestibular conditions were the same examiner Dr. J. O-M essentially repeated this favorable opinion regarding the etiology of his hearing loss and tinnitus finding as being a result of an ear laceration. This examiner also gave an unfavorable opinion regarding the claimed etiology of vestibular disorders with intermittent vertigo lasting seconds occurring 1-4 times a month, pointing out that the onset of vertigo was post active duty and with physical examination findings showing negative testing for vertigo. This same examiner also gave an opinion that the ear trauma associated with hearing loss and tinnitus is unrelated to ear disease and loss of sense of smell. The unfavorable opinions regarding hearing loss and tinnitus were authored by VA audiologist N D-C in a VA examination dated on March 18, 2017. This audiologist confirmed the presence of hearing loss in a May 16, 2016 VA audiological report, although audiological test results in the March 2017 VA examination did not meet the VA criteria for hearing loss. This examiner diagnosed sensorineural hearing loss in the 500- 4000 Hertz range and gave an opinion that the Veteran's hearing loss and tinnitus were not directly related to service including noise exposure but then gave a somewhat contradictory opinion as to whether the hearing loss or tinnitus was associated with his service connected ear canal disorder. The examiner, N. D-C answered using favorable wording that right ear hearing loss is at least as likely as not proximately due to or the result of the Veteran's service connected right ear canals stenosis but then provided an unfavorable rationale finding that multiple audiological examinations were within normal limits for the right ear except for the May 19, 2016 evaluation, which showed right conductive hearing loss secondary to Eustachian tube dysfunction. This examiner stated that the middle ear component present at that time had resolved and that his hearing loss was most likely associated with presbycusis and post service noise exposure. The examiner stated that it was less likely that the hearing loss and tinnitus are related to the service connected canal stenosis. The Board finds these favorable and unfavorable opinions are in equipoise for the purposes of determining whether hearing loss and tinnitus present are associated symptoms of his service-connected canal stenosis. The Board thus accepts the opinion of the ENT physician over that of the audiologist, particularly since the rationale of the audiologist is somewhat self-conflicting. Accordingly, the Board finds that consideration of hearing loss and tinnitus is appropriate as associated symptoms per the Diagnostic Code 6200. However, the evidence is against a finding of any other claimed symptoms such as vertigo or other sensory loss as the same opinion from Dr. J. O-M provided unfavorable opinions finding that vertigo and loss of smell were less likely than not an associated symptoms of the canal stenosis. The Board notes that separate claims of service connection for hearing loss, tinnitus, and a peripheral vestibular disorder were denied by the RO in an April 2017 decision. The Board is not addressing this rating as it has yet to be appealed. However the claimed issues are intertwined with the issue of an increased rating for the right ear canal stenosis, as they are symptoms to be adjudicated under the rating criteria for otitis media. In this case, the symptoms are limited only to the service connected right ear and the Board shall only address them in the context of symptoms of the right ear canal stenosis for rating purposes. VA treatment records show that in July 2013 the Veteran complained of ear trauma in service, although he could not remember which ear was involved. He said that his ear canal had narrowed. Physical examination disclosed a narrow right ear canal (as well as a narrow left ear canal) with wax, and TMs could not be visualized. He underwent lavage of the bilateral ears for the wax and plans for further ENT consult were made. An August 2013 audiological consult showed no significant change since his last evaluation and examination of the ears and canals were normal. His hearing for the right ear was noted to be as follows on audiometric testing: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 20 20 25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. His hearing was normal for VA purposes. In an April 2014 ENT consult the Veteran complained of occasional hearing loss in his right ear, claiming trauma in active duty. Examination revealed canals and TM okay and the impression was of normal bilateral hearing loss except for mild sensorineural hearing loss in the right ear. In November 2014 he complained of wax in both ears with lavage requested. For records from July 2013 to April 2014, see 64 pg. CAPRI docs in LCM pg. 20-24, 26, 42-43. A July 3, 2015 private audiological report contained an un-interpreted audiogram showing approximate findings as follows for the right ear: HERTZ 500 1000 2000 3000 4000 RIGHT 40 50 50 50 60 The average puretone thresholds from 1000 to 4000 Hertz is 52.5 (rounded up to 53). Speech audiometry was not recorded. The findings correspond with a level III hearing loss under Table VIA for puretone threshold averages only. See medical record received by VA on 7/21/15. The report of a July 2015 VA ear disorders examination diagnosed right ear canal stenosis with a history of right ear trauma and complaints of ear discomfort, ear pressure but with adequate hearing and no tinnitus report in this examination. He took no continuous medication for this diagnosed disorder. He had no signs or symptoms attributable to Meniere's syndrome (endolymphatic hydrops), a peripheral vestibular condition other such diagnosed disorder. He also had no evidence of any infectious, inflammatory or other ear disorder, to include signs or symptoms of chronic ear infection, inflammation or cholesteatoma. No impairment of function was shown due any benign neoplasm. The history of surgical repair of ear laceration in July 1961 was noted with residuals confirmed. On physical examination, his ear canal was stenotic, measuring 3 millimeters by 3 millimeters. Otherwise, his external ear and tympanic membranes were normal. His gait was normal and tests for vertigo or other coordination tests were not indicated. No other significant physical findings were noted. His hearing for the right ear was noted to be as follows on audiometric testing: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 20 25 25 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. His hearing was normal for VA purposes. Impedance findings indicated normal middle ear function. No functional impact on his ability to work was shown. Aside from audiological findings the records showed the Veteran had continued issues with cerumen (wax) in his ears treated by the VA with lavage in October 2015 and March 2016. See 188 pg. CAPRI entered in LCM 4/27/17 at pg. 123-124, 137, 145. On May 19, 2016 a VA audiogram and follow up evaluation was obtained for a history of collapsed canal (stenosis); right ear partial hearing loss and ear canal surgery with complaints of a sensation of fullness in the right ear, as well as tinnitus and progressive hearing loss. He also complained of periodic positional vertigo and unbalance. His hearing for the right ear was noted to be as follows on audiometric testing: HERTZ 500 1000 2000 3000 4000 RIGHT 45 40 35 35 45 Speech audiometry revealed speech recognition ability of 100 percent in the right ear. Acoustic emittance testing showed normal compliance of TM but with middle ear negative pressure. Ears were negative for cerumen on physical examination. The right ear diagnosis was mild to severe essentially conductive hearing loss with middle ear negative pressure and excellent speech recognition. The average puretone thresholds from 1000 to 4000 Hertz is 38.75 (rounded up to 39). This corresponds with a Level I hearing loss under Table VI. In June 2016 the Veteran was seen in ENT consult for right ear hearing loss and tinnitus after his in-service trauma with audiogram from May 2016 noted to show conductive hearing loss of the unilateral right ear with unrestricted hearing on the left. The impression was stenotic right ear canal with conductive hearing loss, right. He was referred for a hearing aid. In August 2016 he was fitted for a hearing aid and in October 2016 he was issued a hearing aid. However, his ear canal was so stenosed that even the smallest ear dome hearing aid receiver would not fit. He complained of too much pain and discomfort and the hearing aid was returned. In February 2017 he was seen for right ear complaints including ringing and a sensation of fullness ever since his in-service trauma. Examination revealed some wax and he was advised to restart using Debrox ear drops and to return for an ear lavage if the drops didn't work. See 188 pg. CAPRI entered in LCM 4/27/17 at pg. 27-30, 104, 111-118. On March 3, 2017 the Veteran underwent an ear disorders examination by the same examiner who conducted the July 2015 VA examination. The diagnosis for the right ear remained ear canal stenosis. A history of right ear trauma from assault during active duty was noted. His right ear was stenosed as a result of trauma with other secondary problems including tinnitus that has been constant since the event and hearing loss which has become worse with aging. As reported in the 2015 examination, he took no continuous medication for this diagnosed disorder. He again had no signs or symptoms attributable to Meniere's syndrome, a peripheral vestibular condition other such diagnosed disorder. He also had no evidence of any infectious, inflammatory or other ear disorder, to include signs or symptoms of chronic ear infection, inflammation or cholesteatoma. No impairment of function was shown due any benign neoplasm. The surgical history was again noted to have taken place in July 1961 with residuals of reduced canal opening to 3 x 3 millimeters. Physical examination disclosed canal stenosis, collapse or posterior wall conchal cartilage. Otherwise, the findings were normal as per the July 2015 examination, and tests for and tests for vertigo or other coordination tests were again not indicated. The findings and audiogram report from November 16, 2016 was attached to the March 3, 2017 VA examination as were the findings from the VA audiology and ear treatment records in May 2016 and October 2016 and the non-VA record from August 2016; these records showed evidence of canal stenosis and reduced hearing in the right ear. No other significant diagnostic test findings were shown. As for functional impact, the impacts of the Veteran's ear or peripheral vestibular conditions on his ability to work was that persistent and increased tinnitus has resulted in insomnia. As for the service connected right ear canal stenosis, the level of severity was increased; his current diagnosis was a progression of the service connected disability. The examiner described how the traumatic injury to the right ear had resulted in the canal developing stenosis, despite repair to the external canal. Aside from external ear trauma, the inner ear was affected resulting in hearing loss and tinnitus. The hearing loss had progressed to the extent he requires hearing aids and is limited in use due to the stenotic canal. Additionally the tinnitus had progressed to the point of insomnia. Based on the findings from the examination and review of the records, the examiner state that the Veteran's claimed right ear blockage is at least as likely as not incurred by ear trauma in service. The report of a March 18, 2017 VA examination for hearing loss and tinnitus included a review of the evidence and examination of the Veteran. As previously discussed, this examination included an unfavorable etiology opinion pertaining to hearing loss and tinnitus but the Board otherwise finds the evidence to be in equipoise as to this question. On audiometric testing, hearing for the right ear was noted to be as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 25 30 20 25 Speech audiometry revealed speech recognition ability of 96 percent in the right ear. These findings showed normal hearing for VA purposes. Other audiologic findings on tympanometry included normal acoustic emittance, but abnormal acoustic reflexes both ipsilaterally and contralaterally. The diagnosis was right ear sensorineural hearing loss in the frequency of 500 to 4000 Hertz. The functional impact on ordinary conditions of daily life and ability to work was of difficulty hearing in his right ear per his self-report. The examiner also noted that on audiological testing, pediatric insert foam was used for the right ear as regular sized foam resulted in discomfort and pain. The Stenger test was positive for the right ear. As for tinnitus, the Veteran complained of its presence since his in-service head trauma. The impact of tinnitus on his ordinary conditions of daily life, including ability to work was that it was very bothersome in quiet surroundings and sometimes at night. On March 20, 2017 the Veteran underwent a VA examination which provided the favorable etiology opinions as to the hearing loss and tinnitus being symptoms of the right ear canal stenosis. This examination, provided by the same examiner who examined the Veteran in July 2015 and on March 3, 2017, also contained an unfavorable opinion as to a claimed associated vestibular disorder of reported episodes of vertigo described as occurring intermittently and lasting for seconds. As for his associated tinnitus, it occurred more than once a week and lasted less than 24 hours. He took no continuous medication for this diagnosed disorder. He had no signs or symptoms attributable to infectious, inflammatory or other ear disorder, to include signs or symptoms of chronic ear infection, inflammation or cholesteatoma. No impairment of function was shown due any benign neoplasm. Physical exam included normal canal, TM and gait. Romberg test was negative and a Dix Hallpike test (Nylen-Barany test) for vertigo was normal; no vertigo or nystagmus during testing. No other pertinent physical findings were noted. The examiner reviewed the evidence in the claims file and attached pertinent reports including the findings from the May 19, 2016 a VA audiogram which disclosed findings showing a left ear hearing loss for VA purposes and other VA and private records showing a right ear canal stenosis. Otherwise the findings from this examination were identical to those made on March 3, 2017. As for functional impact the examiner found that the Veteran's ear/peripheral vestibular disorder did not impact the Veteran's ability to work due to no response given. In April 2017 the Veteran was seen for right ear hearing loss with irregular ear canal for orientation and counseling about hearing device options other than standard hearing aids. He tested out an assistive listening device and one was ordered. See 28 pg. docs entered in LCM on 4/18/17. Based on review of the evidence the Board finds that a 10 percent rating is warranted for complications of tinnitus resulting from the service connected right ear canal stenosis under the criteria for chronic suppurative otitis media, mastoiditis, or cholesteatoma, DC 6200. As discussed above, the evidence is in equipoise as to whether the tinnitus is a manifestation of his service-connected right ear disorder. The evidence includes the medical evidence discussed at length above, as well as the Veteran's lay history indicating that the tinnitus existed since his traumatic injury to the right ear. Hence a 10 percent rating is warranted for the tinnitus since initial entitlement under the criteria for tinnitus DC 6260. However, a separate 10 percent rating for symptoms of suppuration or aural polyps is not warranted under DC 6200 as the medical records and examinations fail to show evidence of suppuration or aural polyps. Thus, the criteria for a compensable rating under DC 6200 is not shown and a 10 percent rating in addition to the 10 percent rating for tinnitus is not warranted. Regarding associated symptoms of hearing loss, most of the audiological examination reports in the records and VA examination reports are noted to be normal for VA purposes, not meeting the VA criteria for a disability of hearing loss under 38 C.F.R. § 3.385. However, in the instances where hearing loss disability is shown, such disability is not shown to meet the criteria for a compensable rating for hearing loss. Namely, the May 19, 2016 VA audiogram, while disclosing hearing loss, yielded findings with a Level I hearing loss under Table VI, which when evaluated with the non-service-connected left ear, is a noncompensable rating. Likewise the July 3, 2015 private audiogram findings correspond with a level III hearing loss under Table VIA for puretone threshold averages only. Again when evaluated with the non-service-connected left ear, this is a noncompensable rating. 38 C.F.R. §§ 4.85, 4.86 Diagnostic Code 6100. Accordingly even though hearing loss, when actually present, is recognized as an associated symptom of this service connected right ear disability, a separate compensable rating is not warranted. The Board further notes that a compensable rating is not warranted under the criteria for otitis externa, DC 6210, as the evidence fails to show swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. Although he has had episodes of cerumen requiring occasional lavage, such episodes do not show frequent and prolonged treatment for this. Moreover the 10 percent rating now in effect based on his tinnitus is the equivalent of the maximum 10 percent rating under DC 6210. A higher rating for the right ear disorder with compensable tinnitus is not warranted under any other potentially applicable criteria offering a higher rating. There is not shown to be any associated peripheral vestibular disorder with vertigo or dizziness per the opinion of the VA examiner on March 20, 2017. None of the other medical evidence is shown to refute this opinion. Nor is there evidence of Meniere's syndrome, loss of auricle or neoplasms--malignant or benign, shown in any of the records or examinations. Accordingly, a higher rating under DCs 6204, 6205, 6207, 6208 or 6209 is not warranted. In sum, an initial 10 percent rating, but no more, is warranted for the service connected right ear disorder manifested by canal stenosis and associated tinnitus. ORDER Entitlement to an initial 10 percent rating for a right ear disorder classified as right ear canal stenosis with associated tinnitus is granted. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs