Citation Nr: 18144270 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 17-11 719 DATE: October 24, 2018 ORDER New and material evidence having been received, the appeal to reopen service connection for sleep apnea is granted. New and material evidence having been received, the appeal to reopen service connection for posttraumatic stress disorder (PTSD) is granted. New and material evidence having been received, the appeal to reopen service connection for an acquired psychiatric disorder, to include anxiety disorder and depression, is granted. New and material evidence having been received, the appeal to reopen service connection for right lower extremity radiculopathy is granted. Service connection for sleep apnea is denied. Service connection for posttraumatic stress disorder (PTSD) is denied. Service connection for right lower extremity radiculopathy, including as secondary to the service-connected bilateral shin splints, is denied. A higher initial rating of 10 percent, but no higher, for the service-connected prurigo nodularis (skin disorder) is granted. REMANDED Service connection for an acquired psychiatric disorder, to include anxiety disorder and depression, including as secondary to service-connected disabilities is remanded. FINDINGS OF FACT 1. In an unappealed November 2012 rating decision, the Regional Office (RO) denied service connection for sleep apnea on the basis that the evidence did not show a current disability; evidence received since the November 2012 rating decision relates to the unestablished fact of a current disability, which is necessary to substantiate a claim for service connection. 2. In an unappealed November 2012 rating decision, the RO denied service connection for PTSD on the basis that the evidence did not show a current disability; evidence received since the November 2012 rating decision relates to the unestablished fact of a current disability, which is necessary to substantiate a claim for service connection. 3. In an unappealed November 2012 rating decision, the RO denied service connection for an acquired psychiatric disorder on the basis that the evidence did not show a nexus to service; evidence received since the November 2012 rating decision relates to the unestablished fact of a nexus to service, which is necessary to substantiate a claim for service connection. 4. In an unappealed November 2012 rating decision, the RO denied service connection for right lower extremity radiculopathy on the basis that the evidence did not show a nexus to service; evidence received since the November 2012 rating decision relates to the unestablished fact of a nexus to service, which is necessary to substantiate a claim for service connection. 5. The Veteran is currently diagnosed with sleep apnea; the current sleep apnea is not etiologically related to active service. 6. The Veteran does not have, nor has he had at any time proximate to the relevant claim period on appeal, a current diagnosis for PTSD. 7. The Veteran does not have, nor has he had at any time proximate to the relevant claim period on appeal, a current diagnosis for right lower extremity radiculopathy. 8. For the entire initial rating period on appeal from October 31, 2011, the service-connected skin disorder has been manifested by a rash that affects less than 5 percent of the entire body and exposed body areas, and treated with constant or near constant systemic therapy such as corticosteroids. CONCLUSIONS OF LAW 1. The November 2012 rating decision denying service connection for sleep apnea, PTSD, an acquired psychiatric disorder, and right lower extremity radiculopathy, became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the November 2012 rating decision is new and material to reopen service connection for sleep apnea, PTSD, an acquired psychiatric disorder, and right lower extremity radiculopathy. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. 3. The criteria for service connection for sleep apnea have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304. 4. The criteria for service connection for PTSD have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304, 4.125. 5. The criteria for service connection for right lower extremity radiculopathy, including as secondary to the service-connected bilateral shin splints, have not been met. 38 U.S.C. §§ 1110, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.301, 3.303, 3.304, 3.310. 6. Resolving reasonable doubt in the Veteran’s favor, for the entire initial rating period on appeal from October 31, 2011, the criteria for an initial 10 percent disability rating, and no higher, for the service connected prurigo nodularis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.21, 4.118, Diagnostic Code 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from August 1995 to December 1995, from February 1998 to February 2001, and from November 2001 to April 2006. 1. Reopening service connection for sleep apnea 2. Reopening service connection for PTSD 3. Reopening service connection an acquired psychiatric disorder, to include anxiety disorder and depression 4. Reopening service connection for right lower extremity radiculopathy Finally decided claims cannot be reopened in the absence of new and material evidence. 38 U.S.C. § 5108; 38 C.F.R. § 3.156; Barnett v. Brown, 8 Vet. App. 1 (1995) (citing 38 U.S.C. §§ 5108, 7104(b)). Unappealed rating decisions by the RO are final with the exception that a claim may be reopened by submission of new and material evidence. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. § 3.156. When a veteran seeks to reopen a claim based on new evidence, VA must first determine whether the additional evidence is “new” and “material.” See Smith v. West, 12 Vet. App. 312 (1999). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a). Material evidence means 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 of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to consideration of whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. A November 2012 rating decision denied service connection for sleep apnea, PTSD, an acquired psychiatric disorder, and right lower extremity radiculopathy. The RO found that the evidence did not show a current diagnosis for sleep apnea or PTSD, and that the evidence did not show a nexus between right lower extremity radiculopathy or an acquired psychiatric disorder and active service. Because the Veteran did not submit a Notice of Disagreement, and no additional evidence was received within one year of the notice of the rating decision, the November 2012 rating decision became final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103. Since the November 2012 rating decision (final disallowance), additional evidence has been received in the form of VA treatment records, VA examination reports, private treatment records, and lay statements, which evidence is new because they have not been previously submitted. Evidence received since the November 2012 rating decision includes a March 2017 VA treatment record indicating a current diagnosis for sleep apnea and a May 2017 private medical letter indicating the Veteran had previously been diagnosed with PTSD. Additionally, since the November 2012 rating decision, the Veteran has advanced new theories of entitlement to service connection for an acquired psychiatric disorder (as secondary to service-connected disabilities) and right lower extremity radiculopathy (as secondary to the service-connected bilateral shin splints). Such evidence relates to the unestablished facts of a current disability and nexus to service. Based on the foregoing, the Board finds that the additional evidence received is new and material to reopen service connection for sleep apnea, PTSD, an acquired psychiatric disorder, and right lower extremity radiculopathy. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in service disease or injury and the current disability. With any claim for service connection (under any theory of entitlement), it is necessary for a current disability to be present. See Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (service connection may be warranted if there was a disability present at any point during the claim period, even if it is not currently present); Romanowsky v. Shinseki, 26 Vet. App. 289 (2013) (when the record contains a recent diagnosis of disability immediately prior to a veteran filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See id.; Harder v. Brown, 5 Vet. App. 183, 187 (1993). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In other words, service connection may be granted for a disability found to be proximately due to, or the result of, a service-connected disease or injury. To prevail on the issue of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). The Veteran is currently diagnosed with sleep apnea, anxiety disorder, and depression, which are not “chronic diseases” under 38 C.F.R. § 3.309(a); therefore, the presumptive provisions of 38 C.F.R. § 3.303(b) for “chronic” in service symptoms and “continuous” post service symptoms do not apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 5. Service connection for sleep apnea The Veteran generally contends that service connection for sleep apnea is warranted. See January 2014 Claim. Initially, the Board finds that the Veteran is currently diagnosed with sleep apnea. See March 2017 VA treatment record. After a review of all the evidence, lay and medical, the Board finds that the current sleep apnea is not etiologically related to active service. Service treatment records do not reflect any complaints, symptoms, diagnosis, or treatment for sleep apnea during service. An October 2004 service treatment record reflects the Veteran complained of insomnia and increased stress levels; the Veteran also reported difficulty sleeping with previous episodes of stress. The October 2004 service provider assessed the Veteran’s insomnia was due to stress. Service treatment records do not reflect any further sleep-related symptoms or complaints. The Veteran underwent a VA examination in October 2012. The October 2012 VA examination report shows the Veteran was diagnosed with insomnia related to a mental disorder, but the VA examiner ruled out a diagnosis for obstructive sleep apnea. During the October 2012 VA examination, the Veteran denied the major diagnostic criteria to support a possible sleep apnea diagnosis such as snoring, air hunger while sleeping, nonrestorative sleep, daytime somnolence, and disordered sleep breathing. The record shows that the Veteran was not diagnosed with sleep apnea until March 2017. See March 2017 VA treatment record. Because the record does not contain any competent medical opinion establishing a medical nexus between the current sleep apnea and active service, the Board finds that the criteria for service connection for sleep apnea have not been met. 6. Service connection for PTSD Service connection for PTSD requires the following three elements: (1) a current medical diagnosis of PTSD (presumed to include the adequacy of the PTSD symptomatology and the sufficiency of a claimed in-service stressor in accordance with 38 C.F.R. § 4.125(a)), (2) credible supporting evidence that the claimed in service stressor(s) actually occurred, and (3) medical evidence of a causal relationship between current symptomatology and the specific claimed in-service stressor(s). See 38 C.F.R. § 3.304(f). In adjudicating a claim for service connection for PTSD, the Board is required to evaluate evidence based on places, types, and circumstances of service, as shown by the veteran’s military records and all pertinent medical and lay evidence. Hayes v. Brown, 5 Vet. App. 60, 66 (1993); see also 38 U.S.C. § 1154(a); 38 C.F.R. § 3.304(f). The evidence necessary to establish the occurrence of an in-service stressor for PTSD will vary depending on whether or not the veteran “engaged in combat with the enemy.” Id. If VA determines that the veteran engaged in combat with the enemy and that the alleged stressor is related to combat, then the veteran’s lay testimony or statements are accepted as conclusive evidence of the occurrence of the claimed stressor. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(f). No further development or corroborative evidence is required, provided that the claimed stressor is “consistent with the circumstances, conditions, or hardships of the veteran’s service.” Id. If, however, VA determines that the veteran did not engage in combat with the enemy or that the alleged stressor is not related to combat, the veteran’s lay testimony by itself is not sufficient to establish the occurrence of the alleged stressor. Instead, the record must contain service records or other evidence to corroborate the veteran’s testimony or statements. See Moreau v. Brown, 9 Vet. App. 389, 394 (1996). In this case, the Veteran asserts having developed PTSD due to seeing dead bodies and experiencing mortar attacks while deployed in Iraq. See October 2012 VA examination report. After a review of all the evidence, lay and medical, the Board finds that the weight of the evidence demonstrates that, during and immediately prior to the claim, the Veteran does not have a current diagnosis for PTSD. The Veteran underwent a VA examination in October 2012, the VA examination report for which reflects that the Veteran does not have a diagnosis of PTSD that conforms with the DSM criteria; instead, the Veteran was diagnosed with anxiety disorder, which is discussed below. As noted above, the Veteran reported seeing dead bodies and experiencing mortar attacks while deployed in Iraq; however, the October 2012 VA examiner assessed that the claimed stressor event was not adequate to support a diagnosis for PTSD. Further, the VA examiner found the Veteran did not fulfill the persistent avoidance of stimuli associated with the trauma and numbing of general responsiveness criteria; as such, the VA examiner concluded the Veteran did not fulfill the DSM diagnostic criteria for PTSD. The Veteran underwent another VA examination in May 2014, which also reflects the Veteran does not have a diagnosis of PTSD that conforms with the DSM criteria, but was again diagnosed with anxiety disorder instead. During the May 2014 VA examination, the Veteran reported seeing dead bodies while deployed in Iraq. The VA examiner assessed that although the reported stressor was sufficient to support a diagnosis for PTSD, the Veteran did not meet any of the other criteria necessary for a PTSD diagnosis. The May 2017 private medical letter of record reflects the Veteran reported previously being diagnosed with PTSD; however, the private provider only diagnosed the Veteran with anxiety disorder and major depression. Although the May 2017 private medical letter shows the Veteran reported being diagnosed with PTSD, this report is contrary to the other medical evidence of record that shows the Veteran does not meet the DSM diagnostic criteria for PTSD. Medical opinions premised upon an unsubstantiated account of a claimant are of no probative value and does not serve to verify the occurrences described. See Swann v. Brown, 5 Vet. App. 229, 233 (1993); Reonal v. Brown, 5 Vet. App. 458, 461 (1993). As such, the Board finds the May 2017 private medical letter is of no probative value in establishing a current PTSD diagnosis. As discussed above, with any claim for service connection, it is necessary for a current disability to be present. See Moore, 21 Vet. App. at 215; Brammer at 225; Rabideau v. Derwinski, 2 Vet. App. 141, 143 44 (1992); McClain, 21 Vet. App. 319; Romanowsky, 26 Vet. App. 289. For the reasons discussed above, the Board finds that the weight of the evidence demonstrates that the Veteran does not have a current diagnosis for PTSD. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 7. Service connection for right lower extremity radiculopathy, including as secondary to the service-connected bilateral shin splints The Veteran generally asserts that service connection for right lower extremity radiculopathy as secondary to the service-connected bilateral shin splints is warranted. See January 2014 Claim. The Board notes that service connection for left lower extremity radiculopathy has been granted as secondary to the service-connected lumbar spine disability; therefore, the Board will also consider service connection for right lower extremity radiculopathy as secondary to the service-connected lumbar spine disability. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence demonstrates that the Veteran is not currently diagnosed with right lower extremity radiculopathy. VA treatment records and VA examination reports from September 2008, May 2014, July 2014, August 2014, February 2016, and June 2017 reflect negative findings for right lower extremity radiculopathy upon examination and clinical testing. Because the weight of the evidence demonstrates no current diagnosis for right lower extremity radiculopathy, the claim for service connection for right lower extremity radiculopathy, including as secondary to the service-connected shin splints, must be denied. 8. A higher (compensable) initial rating for the service connected prurigo nodularis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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 the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. For the entire initial rating period on appeal from October 31, 2011, the Veteran is in receipt of a noncompensable (0 percent) disability rating for the service-connected skin disorder under Diagnostic Code 7806. 38 C.F.R. § 4.118. Under Diagnostic Code 7806, the rating code for dermatitis and eczema, a 0 percent rating is provided when less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past 12-month period. A 10 percent rating is provided when at least 5 percent, but less than 20 percent, of the entire body is covered, or at least 5 percent, but less than 20 percent, of exposed areas are affected, or for intermittent systemic therapy, such as corticosteroids or other immunosuppressive drugs, required for a total duration of less than six weeks during the past 12-month period. A 30 percent rating is provided when 20 to 40 percent of the entire body is covered, or 20 to 40 percent of exposed areas are affected, or for required systemic therapy, such as corticosteroids or other immunosuppressive drugs, for a total duration of six weeks or more, but not constantly, during the past 12-month period. A 60 percent disability rating is provided when more than 40 percent of the entire body is covered, or more than 40 percent of exposed areas are affected, or for required constant or near-constant systemic therapy, such as corticosteroids or other immunosuppressive drugs, during the past 12-month period. 38 C.F.R. § 4.118. The disability may also be rated as disfigurement of the head, face, or neck (Diagnostic Code 7800) or scars (Diagnostic Codes 7801 through 7805), depending upon the predominant disability. 38 C.F.R. § 4.118, Diagnostic Code 7806. After a review of all the evidence of record, the Board finds that the evidence is at least in equipoise on the question of whether manifestations of the skin disorder more closely approximates the criteria for a higher 10 percent rating under Diagnostic Code 7806. Although October 2012 and December 2016 VA examination reports reflects the skin disorder affects less than five percent of the entire body and exposed areas, both VA examiners found that the service-connected skin disorder requires constant or near-constant topical corticosteroid therapy, which is a disability picture commensurate with a 10 percent schedular rating under Diagnostic Code 7806. Based on the foregoing evidence, and resolving reasonable doubt in favor of the Veteran, the Board finds that a higher initial disability rating of 10 percent under Diagnostic Code 7806 for the service connected skin disorder is warranted for the entire initial rating period from October 31, 2011. 38 C.F.R. §§ 4.3, 4.7, 4.118. As such, the appeal for a higher initial rating for prurigo nodularis is fully granted in the Board’s instant decision. In an April 2016 Notice of Disagreement and a September 2018 Informal Hearing Presentation, the Veteran conveyed that a 10 percent disability rating would satisfy the appeal as to this issue. Such a full grant of benefits sought, coupled with express indication that the rating percentage sought fully satisfies the appeal, is distinguished from a case where a veteran does not express satisfaction with a partial increased rating during an appeal that is less than the maximum schedular rating. See A.B. v. Brown, 6 Vet. App. 35, 39 (1993) (recognizing that a claimant may limit the claim or appeal to the issue of entitlement to a particular disability rating which is less than the maximum allowed by law for a particular service connected disability). The Board finds the Veteran’s waiver of the remaining aspects of the appeal for a higher initial rating for the service-connected skin disorder in excess of the 10 percent granted was knowing and intelligent, and is supported by the evidence of record. Because a higher 10 percent initial rating for the service-connected skin disorder is granted for the entire initial rating period on appeal from October 31, 2011, which the Veteran represented would fully satisfy the initial rating issue on appeal, the Veteran has limited this appeal in both extent and time by withdrawing the aspects of the appeal that encompassed a higher initial rating than 10 percent for the entire initial rating period, including any questions of extraschedular referral or rating. See 38 C.F.R. § 20.204 (providing that an appellant may withdraw an issue at any time before the Board issues a final decision). For these reasons, any question of higher disability rating for the skin disorder is rendered moot with no remaining questions of law or fact to decide. See 38 U.S.C. § 7104; Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). In summary, the Board finds that the service connected skin disorder more closely approximates the criteria for a 10 percent rating under Diagnostic Code 7806 for the entire initial rating period on appeal from October 31, 2011; therefore, the appeal is fully granted, leaving no remaining rating questions, including questions of referral for extraschedular rating under 38 C.F.R. § 3.321(b). 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Service connection for an acquired psychiatric disorder, to include anxiety disorder and depression, including as secondary to service-connected disabilities The Veteran generally contends that an acquired psychiatric disorder developed as a result of his deployments to Iraq and exposure to mortar attacks and seeing dead bodies. Additionally, the Veteran asserts that an acquired psychiatric disorder developed due to his service-connected disabilities. During the October 2012 VA examination discussed above, the VA examiner opined that the current anxiety disorder was not the result of active service due to the lack of psychiatric treatment during service, and lack of any complaints, treatment, or findings within one year after service separation. On the contrary, an October 2004 service treatment record reflects the Veteran complained of insomnia with stress and endorsed having nightmares about Iraq. Additionally, a September 2006 VA treatment record shows the Veteran endorsed symptoms of depression, which was less than six months following service separation. The May 2014 VA examination report discussed above contains the VA examiner’s opinion that the current anxiety disorder and depression are not etiologically related to active service, and are not related to, or aggravated by the Veteran’s service-connected disabilities; however, the May 2014 VA examiner did not provide a rationale for the above opinions. Furthermore, neither the October 2012 VA examiner or the May 2014 VA examiner addressed the Veteran’s in-service reports of having nightmares about Iraq or the complaints of depression symptoms within six months following service separation. Therefore, the Board finds that remand for another VA examination and medical opinion is needed. The matter is REMANDED for the following action: Schedule a VA examination in order to assess the Veteran’s current acquired psychiatric disorder(s). The relevant documents in the electronic file should be made available to, and be reviewed by, the VA examiner. The VA examiner should note such review in the requested medical opinion. The VA examiner should provide the following opinions: a. It is at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s current acquired psychiatric disorder is related to active service, including to the related service stressor? In providing this opinion, the VA examiner should address the October 2004 service treatment record showing the Veteran endorsed nightmares about Iraq, and the September 2006 VA treatment record showing the Veteran endorsed symptoms of depression. b. Is it at least as likely as not (i.e., a 50 percent probability or greater) that the Veteran’s current acquired psychiatric disorder is caused, or worsened beyond its normal progression, by the service-connected disabilities? (Continued on the next page)   The term “at least as likely as not” does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. J. PARKER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD E. Choi, Associate Counsel