Citation Nr: 1804605 Decision Date: 01/24/18 Archive Date: 02/05/18 DOCKET NO. 11-27 346 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for patellofemoral chondromalacia, right knee. 2. Entitlement to an evaluation in excess of 10 percent for chondromalacia patella, left knee. 3. Entitlement to an initial rating in excess of 10 percent prior to May 14, 2016, and an evaluation in excess of 20 percent thereafter, for residuals of a right thumb injury, to include laceration of branches of the digital nerve, radial nerve. 4. Entitlement to service connection for herpes zoster. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Odya-Weis, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1982 to August 1985, September 1990 to October 1990, and from November 2003 to November 2005, with additional service in the Army and Air Force Reserves. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2010, August 2010, and May 2011 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal was remanded in December 2015. An April 2016 rating decision granted entitlement to service connection for fibromyalgia. In addition, a May 2016 rating decision increased the evaluation for the Veteran's residuals of a right thumb injury to 20 percent, effective May 14, 2016, and granted entitlement to service connection for erectile dysfunction. As the RO did not assign the maximum disability rating possible for the right thumb disability for the entire appeal period, the claim for a higher initial evaluation remains before the Board. See AB v. Brown, 6 Vet. App. 35 (1993). However, as the grants of entitlement to service connection for fibromyalgia and erectile dysfunction constitute full grants of the benefits sought on appeal, those claims are no longer in appellate status. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The issue of entitlement to service connection for herpes zoster is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's right knee disability has been manifested by painful motion with flexion limited to 105 degrees. 2. The Veteran's left knee disability has been manifested by painful motion with flexion limited to 85 degrees. 3. Throughout the appeal period, the Veteran's residuals of a right thumb injury have been manifested by pain, tingling, and numbness that most nearly approximated mild incomplete paralysis of the radial nerve. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 10 percent for right knee patellofemoral chondromalacia have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5260 (2017). 2. The criteria for an evaluation in excess of 10 percent for chondromalacia patella, left knee, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5260 (2017). 3. The criteria for a 20 percent rating, but not higher, have been met for residuals of a right thumb injury prior to May 14, 2016. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8514 (2017). 4. The criteria for a rating in excess of 20 percent for residuals of a right thumb injury have not been met since May 14, 2016. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8514 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Right and left knee disabilities Service connection for a left knee disability was granted in a November 1985 rating decision and assigned a 0 percent rating. A May 2008 rating decision continued the 0 percent evaluation. In May 2009, the Veteran reported a knee injury noted in 1985 was among medical conditions that worsened due to his deployments, which was construed as a claim for increase of the left knee rating; subsequently, the February 2010 rating decision on appeal assigned a 10 percent evaluation for chondromalacia patella of the left knee, effective May 4, 2009. In addition, service connection and a 10 percent evaluation for patellofemoral chondromalacia of the right knee was granted, effective July 30, 2009, in the May 2011 rating decision on appeal. As discussed below, the Board finds that the criteria for an evaluation in excess of 10 percent for the Veteran's left knee disability and the criteria an initial evaluation in excess of 10 percent for the right knee disability are not met. Separate ratings can be assigned for knee disabilities when none of the symptomatology overlaps and the separate rating is based on additional disabling symptomatology; this includes separate ratings based on limitation of flexion (Diagnostic Code 5260), limitation of extension (Diagnostic Code 5261), lateral instability or recurrent subluxation (Diagnostic Code 5257), and meniscal conditions (Diagnostic Codes 5258, 5259). See VAOPGCPREC 23-97, 62 Fed. Reg. 63,603 (1997); VAOPGCPREC 9-98, 63 Fed. Reg. 56,703 (1998); VAOPGCPREC 9-2004; 69 Fed. Reg. 59,988 (2004); Lyles v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1704 (Nov. 29, 2017). The normal range of motion of the knee is from 0 degrees extension to 140 degrees flexion. 38 C.F.R. § 4.71, Plate II (2017). Limitation of flexion warrants 10, 20, and 30 percent ratings when limitation is to 45 degrees, 30 degrees, and 15 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Limitation of extension warrants 10, 20, 30, 40, and 50 percent ratings when limitation is to 10 degrees, 15 degrees, 20 degrees, 30 degrees, and 45 degrees, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5261. A 10 percent rating can also be assigned for the knee joint if there is painful motion without compensable limitation of motion. 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5003 (2017); see also Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the applicability of 38 C.F.R. § 4.59 is not limited to arthritis claims). Recurrent subluxation and lateral instability of the knee warrants a 10, 20, or 30 percent rating if slight, moderate, or severe, respectively. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Ratings can be assigned when the knee disability affects the meniscus. Specifically, a 10 percent rating is warranted when there is dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. A 20 percent rating is warranted when there has been removal of semilunar cartilage (e.g., meniscectomy) and current residual symptoms. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Ratings can also be assigned for impairment of the tibia or fibula, genu recurvatum, or ankylosis of the knee. 38 C.F.R. § 4.71a, Diagnostic Codes 5256, 5262, 5263. Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). In this case the evidence does not reflect and the Veteran does not allege that he has tibia or fibula impairment, genu recurvatum, or ankylosis of either knee. As such, those diagnostic codes are not for application. The left knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260 for limited or painful motion of the left leg. See 38 C.F.R. §§ 4.45(f), 4.59; Burton, 25 Vet. App. 1. The right knee disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5260 for limitation of flexion of the right leg. The May 2011 rating decision noted the Veteran's right knee disability did not result in limitation of flexion to 45 degrees or less to warrant a 10 percent evaluation, but assigned a 10 percent rating due to evidence of painful motion of the joint. See 38 C.F.R. §§ 4.45(f); 4.71a, Diagnostic Codes 5003, 5010, 5260; see also 38 C.F.R. § 4.59; Burton, 25 Vet. App. 1. With regard to the right knee, the Board concludes that the preponderance of the evidence is against a finding for a higher rating, or any separate ratings, at any point. Range of motion testing was performed during VA examinations in July 2010 and May 2016, and was at worst 105 degrees of flexion and 0 degrees of extension. At the examinations, the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed by the examiner, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. In this regard, the July 2010 examiner reported right knee pain affected flexion beyond 120 degrees and that repetitive motion produced slight additional pain but no fatigue, lack of endurance, or additional limitation on the range of motion of the joint. A May 2016 examination reported functional limitations due to pain and lack of endurance impacted running, extending the knee, and using stairs but that pain observed at the examination did not result in additional functional loss, including after repetitive use. The reports do not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing, nor does any other evidence of record to include the Veteran's lay statements. In other words, although the Veteran has essentially stated that he has reduced motion in his knee, he has not described a range of motion less than that found on examination, specifically the requisite limitation of motion necessary for a higher or separate rating. Treatment records also do not show greater limitation of motion than the examination findings; rather a June 2015 private treatment record indicated full range of motion of all joints. Even when considering right knee pain's impact on physical activities, prolonged standing, and climbing stairs, the criteria for a higher or separate rating based on the Veteran's range of motion are not met and he has been compensated for painful motion in the 10 percent evaluation. See 38 C.F.R. § 4.59; see also Burton, 25 Vet. App. 1. In addition, the Veteran also reported swelling and locking of the right knee in a July 2010 examination; however, there were no clinical findings of a semilunar cartilage disability to warrant a separate rating under Diagnostic Code 5258; rather, a May 2012 private medical record noted that a magnetic resonance imaging (MRI) report found no evidence of meniscal tear. Similarly, even though an April 2012 VA treatment record prescribed knee sleeves for mild instability, there were no clinical findings of instability in subsequent June 2015 private medical records or at the May 2016 examination. While the Veteran may experience a feeling that his knee may give way or is unstable, the medical findings regarding instability, dislocation, and subluxation are more probative as to the actual presence of these conditions. Notably, there are specific medical tests that are designed to reveal instability and laxity of the joints. These tests were administered by the medical professionals in this case and revealed no instability or laxity. Hence, the evidence is against a separate rating for the knee under Diagnostic Code 5257. 38 C.F.R. § 4.71a. With regard to the left knee disability, the Board also finds that the criteria for an evaluation in excess of 10 percent are not met. Even after taking into account the medical findings and the lay statements, the evidence does not suggest that motion is limited to the requisite degree for a higher or separate rating at any point. Range of motion testing was performed during VA examinations in May 2009 and May 2016, and was at worst 85 degrees of flexion and 0 degrees of extension. Treatment records do not show greater limitation of motion than the examination findings. The reports also do not suggest that the specific findings on examination, in terms of range of motion, would change to the degree required for a higher rating during a flare-up, after repetitive use, due to pain, or with weight bearing. The May 2009 examiner reported left knee pain, stiffness, giving way, weakness, and decreased speed of the joint resulted in limitation of flexion to 85 degrees and extension to 0 degrees that was not further limited on repetition and the Veteran also reported flare-ups every three or four months due to damp or cold weather lasted hours and prevented full weight-bearing. The frequency of these flare-ups is such that the disability picture does not more nearly approximate the criteria for a higher rating. See 38 C.F.R. § 4.7. The May 2016 examination reported functional limitations of pain and lack of endurance due to running, extending the knee, or using stairs but that pain during examination did not result in additional functional loss, including after repetitive use. The Veteran denied having flare-ups of the condition. Given the above, a higher or separate rating is not warranted based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5260, 5261. The Board has considered whether there is any other basis for granting a higher or separate rating but has found none. Although the Veteran also reported weakness, swelling, lack of endurance, and locking of the left knee in a March 2010 notice of disagreement, there were no clinical findings of a semilunar cartilage disability or instability to warrant a higher evaluation or separate rating under Diagnostic Code 5258. Notably, May 2012 private MRI report found no evidence of a left knee meniscal tear. Further, even though the Veteran's report of mild instability was noted in an April 2012 VA treatment record, a June 2015 private medical record and May 2016 examination report provided negative testing results for instability. While the Veteran may experience a feeling that his knee may give way or is unstable, the medical findings regarding instability, dislocation, and subluxation are more probative as to the actual presence of these conditions as the medical tests were designed to reveal instability and laxity of the joints and were administered by the medical professionals in this case. Hence, the evidence is also against a separate rating for the left knee under Diagnostic Code 5257. As the preponderance of the evidence is against finding the Veteran's knee disabilities more nearly approximate the criteria for a higher rating, a rating in excess of 10 percent is not warranted for either the right or left knee disabilities. 38 C.F.R. §§ 4.3, 4.7 (2017). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Residuals of a right thumb injury The August 2010 rating decision on appeal granted service connection and a 10 percent evaluation for residuals of a right thumb injury, to include laceration of branches of the digital nerve, effective August 25, 2009. The Veteran disagreed and a May 2016 rating decision increased the evaluation to 20 percent, effective May 14, 2016. The Board notes that the December 2015 Board decision granted an initial 10 percent evaluation for residual scarring of the right thumb. As such, any reported symptomatology related to the residual right thumb scar will not be addressed in the discussion of the residual manifestations of the right thumb injury below. For impairment of an upper extremity, the disability rating depends on whether the extremity is the major or minor extremity. See 38 C.F.R. § 4.69. The Veteran is right-hand dominant and the evaluations are assigned based on the major extremity. Prior to May 14, 2016, the Veteran's residuals of a right thumb injury were rated as analogous to neuritis of the ulnar nerve under Diagnostic Code 8699-8616, which assigns ratings based upon the Schedule of Ratings for Diseases of the Peripheral Nerves. 38 C.F.R. § 4.124a; see 38 C.F.R. §§ 4.20, 4.27 (unlisted disabilities may be rated under a closely-related disability in which not only the functions affected, but also the anatomical location and symptomatology are closely analogous). Since May 14, 2016, the Veteran's residuals are rated under Diagnostic Code 8514, for the musculospiral nerve (radial nerve). Neuritis of the major extremity ulnar nerve warrants a 10, 30, or 40 percent rating for mild, moderate, or severe involvement of the ulnar nerve, respectively. 38 C.F.R. § 4.124a, Diagnostic Code 8616. Paralysis of the major extremity radial nerve warrants a 20, 30, or 50 percent rating for mild, moderate or severe incomplete paralysis, respectively. 38 C.F.R. § 4.124a, Diagnostic Code 8514. Initially, the Board finds the Veteran's right thumb disability picture is most analogous to paralysis of the radial nerve under Diagnostic Code 8514 throughout the appeal period. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (noting all potential applicable diagnostic codes must be considered); 38 C.F.R. § 4.20 (when an unlisted condition is encountered, a disability may be rated under a closely related disease or injury in which not only the functional affected, but the anatomical localization and symptomatology are closely analogous). The Board finds the evidence of record indicates the Veteran's right thumb injury more closely approximated paralysis of the radial nerve than paralysis of the ulnar nerve. In that regard, no medical evidence of record demonstrates ulnar nerve involvement. Specifically, a September 2009 private medical record noted decreased sensation on the radial side of the thumb with normal sensibility and sweating on the ulnar side. In addition, the August 2010 examination report (that is the basis of the 10 percent evaluation prior to May 14, 2016) notes that the Veteran had nerve ending injuries at the tip of the right thumb but did not designate which upper extremity nerve was affected. Further, the May 2016 VA examination attributed the Veteran's right thumb symptomatology due to the radial nerve. Based on the above, the Board finds the evidence supports application of Diagnostic Code 8514 for paralysis of the radial nerve to the entire appeal period. As such, the right thumb disability warrants, at minimum, a 20 percent evaluation for mild incomplete paralysis of the radial nerve affecting the major extremity prior to May 14, 2016. However, the Board also concludes that the preponderance of the evidence does not support a finding that the right thumb disability warranted an evaluation in excess of 20 percent at any point throughout the period on appeal. Rather, the medical evidence indicates the right thumb symptomatology was only sensory, to include symptoms of numbness, tingling, and pain, and generally described as mild. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves (noting when the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree). The medical records did not note any significant organic changes, such as muscle atrophy. Specifically, the May 2016 examination found normal muscle strength and reflexes and indicated that symptoms of mild pain, paresthesias, and numbness would require avoidance of extreme temperature variations or moist areas, working with sharp objects, and avoidance of direct chemical exposure on the skin. Moreover, the Board finds the May 2016 examiner's report consistent with other evidence of record indicating the Veteran's symptoms were wholly sensory during the period on appeal. A September 2009 private medical record reported decreased sensation without atrophy and demonstrated good pulse, range of motion, and circulation. To the extent that the Veteran and other lay statements have reported additional functional loss due to the right thumb disability of difficulty gripping and holding objects and performing some household chores, the Board notes that the August 2010 examiner explained that the Veteran's reported symptoms of right wrist, thumb, and index finger numbness and functional loss were related to right wrist carpal tunnel syndrome affecting the median nerve that was not attributable to residuals of a right thumb injury based on the onset of right thumb and index finger symptomatology that coincided with treatment for right wrist carpal tunnel syndrome. The Board finds the August 2010 examiner's opinion to be probative evidence that the symptomatology and related functional loss were not manifestations of the right thumb disability as the examiner reviewed the Veteran's records, to include his statements, and based the opinion on the reported medical history and examination of the Veteran. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight of the opinions are within the province of the adjudicator); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion). The Board acknowledges the lay statements on the functional limitations the Veteran believes are due to the right thumb disability, including impaired grip that limits his ability to manipulate small objects and use tools, but notes that establishing this link between the symptoms and service-connected disability is beyond the purview of lay observation and requires medical expertise. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board has considered whether there is any other schedular basis for granting a higher rating but has found none. In addition, the Board has considered whether the right thumb disability presents an exception or unusual disability picture rendering impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Here, to the extent that the Veteran's symptomatology includes loss of dexterity of the right thumb resulting in additional functional limitations such as difficulty writing because it precludes his ability to hold a pen between his thumb and index finger, the criteria for the threshold factor under Thun have been met. See id. However, the Board finds further consideration under 38 C.F.R. § 3.321(b) is not in order as there is no indication that the Veteran's disability picture, to include an altered writing style, resulted in marked interference with employment or frequent hospitalizations. Notably, the Veteran testified that he had to relearn how to write but did not report that he was precluded from writing with his right hand or that he was unable to work due to the change in writing style. Further, the Board notes that the Veteran attributed functional loss to painful right thumb scar tissue that is separately rated and not currently on appeal. As such, referral of this case for extra-schedular consideration under 38 C.F.R. § 3.321(b) is not in order. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette, 28 Vet. App. at 369-370. ORDER A rating in excess of 10 percent for a left knee disability is denied. An initial rating in excess of 10 percent for a right knee disability is denied. An initial 20 percent rating, but not higher, for residuals of a right thumb injury under Diagnostic Code 8514 is granted prior to May 14, 2016, subject to the regulations governing the award of monetary benefits. An evaluation in excess of 20 percent for residuals of a right thumb injury is denied since May 14, 2016. REMAND While further delay is regrettable, additional development is warranted before the claim of entitlement to service connection for herpes zoster may be decided. Specifically, an additional examination and medical opinion are required to address all relevant evidence of record. The Veteran contends that he has residual back pain, described by his physician as neuralgia, due to an outbreak of herpes zoster, or shingles, during a period of active service. His service treatment records note he was assessed herpes zoster in June 2004 based on an itchy, painful rash on his left flank. A July 2010 examination noted some hyperpigmentation on the posterior aspect of the Veteran's left lower ribcage without tenderness or disfigurement and found no residuals of herpes zoster; however, it does not appear that the examiner considered whether the Veteran may have neurological residuals of herpes zoster in light of his competent statements of flare-ups of low back pain since treatment for herpes zoster in service or his report that a physician told him the pain was post-herpetic neuralgia due to the herpes zoster. As such, the Board finds the claim must be remanded for an additional examination and medical opinion. Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify all outstanding treatment records relevant to the claim related to herpes zoster, to include records from any medical clinicians who indicated he has neuralgia which may be residuals of herpes zoster. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. After any necessary records development, the Veteran should be afforded an examination to determine the nature and etiology of herpes zoster, to include any residuals thereof. Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail. Following examination of the Veteran and review of the records, the examiner should provide an opinion as to whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran has had herpes zoster, or any residuals thereof, during the period of the appeal (since approximately 2009) that began in service or is otherwise related to service. In making this determination the examiner should address the June 2004 service medical records indicating a left flank rash was assessed as herpes zoster and consider the Veteran's statements regarding onset of intermittent back pain symptoms since that a physician diagnosed as post-herpetic neuralgia. A complete rationale for all opinions provided must be expressed. 3. After completing the requested action, and any additional actions deemed warranted, the agency of original jurisdiction (AOJ) should readjudicate the claim. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and an opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if 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 Court for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ Nathan Kroes Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs