Citation Nr: 18144457 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 12-16 299 DATE: 1. Entitlement to a disability rating in excess of 50 percent for the service-connected major depressive disorder (MDD) prior to July 18, 2013. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, prior to July 18, 2013. October 25, 2018 ORDER Entitlement to a disability rating in excess of 50 percent for the service-connected MDD prior to July 18, 2013 is denied. REMANDED Entitlement to a TDIU, to include on an extraschedular basis, prior to July 18, 2013 is remanded. FINDING OF FACT For the entire period covered by this claim prior to July 18, 2013, the Veteran’s service-connected MDD has been productive of an overall disability picture that more nearly approximates occupational and social impairment with reduced reliability and productivity due to such symptoms as panic attacks more than once a week, difficulty understanding complex commands, disturbances of motivation and mood, chronic sleep impairment, one or two suicide attempts, and occasional fleeting thoughts of suicidal ideation, but without plan; and, difficulty in establishing and maintaining effective work and social relationships; however, judgment and insight have been consistently intact, the Veteran is consistently oriented in all spheres, he was able to function independently, and consistently acted appropriately and effectively during examinations, regularly attended therapy sessions and social worker visits; and, only neglected his personal appearance at home, as grooming was consistently adequate at all examinations, therapy sessions, and social worker visits. CONCLUSION OF LAW The criteria for entitlement to a disability rating in excess of 50 percent for the service-connected MDD prior to July 18, 2013 have not been met nor more nearly approximated. 38 U.S.C. §§ 1155, 5107, 7104 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.130, Diagnostic Code 9434 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1972 to April 1976. This case is before the Board of Veterans’ Appeals (Board) on appeal from a May 2009 Regional Office (RO) rating decision. In that rating decision, the RO granted service connection for MDD and assigned an initial 30 percent rating. In July 2013, the Veteran testified at a Travel Board hearing at the RO before the undersigned Veterans Law Judge. A transcript of his testimony is associated with the claims file. In November 2014 the Board remanded the case to the RO for further development and adjudicative action. Before the case was returned to the Board, the RO issued a rating decision in July 2016 granting an increased rating to 70 percent for the service-connected MDD, and awarding a TDIU, both effective from September 12, 2013. In a June 2017 decision, the Board assigned an initial 50 percent rating for the service-connected MDD effective for the period on appeal prior to July 18, 2013, and assigned an earlier effective date of July 18, 2013 for the award of TDIU. The Veteran appealed that part of the Board’s June 2017 decision that denied entitlement to a rating in excess of 50 percent for MDD prior to July 18, 2013, and denied entitlement to a TDIU prior to July 18, 2013, to the United States Court of Appeals for Veterans Claims (CAVC or Court). While his claims were pending at the Court, the Veteran's representative and the VA Office of General Counsel filed a Joint Motion in January 2018 requesting that the Court vacate the Board's decision insofar as it denied entitlement to a rating in excess of 50 percent for MDD prior to July 18, 2013 and denied entitlement to a TDIU prior to July 18, 2013; and remand those matters back to the Board for further development and readjudication. In a January 2018 Order, the Court granted the Joint Motion. The case was returned to the Board. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See, Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See, Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). In a September 2018 argument, the Veteran’s counsel asserted that the Veteran is entitled to an earlier effective date for the grant of service connection for major depressive disorder. The Board notes that the RO has yet to adjudicate this issue. As such, the Board does not have jurisdiction over the Veteran’s claim for an earlier effective date for the grant of service connection for major depressive disorder, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9 (b) (2017). (Continued on next page.)   Entitlement to a disability rating in excess of 50 percent for the service-connected MDD prior to July 18, 2013. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Where the rating appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See, Fenderson v. West, 12 Vet. App. 119 (1999). In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of a veteran's disability. Schafarth v. Derwinski, 1 Vet. App. 589, 594 (1991). When evaluating a mental disorder, consideration shall be given to the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. The evaluation will be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. It is the responsibility of the rating specialist to interpret examination reports in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2, 4.126 (2017). The Veteran seeks a disability rating higher than 50 percent for his service-connected MDD prior to July 18, 2013, pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9434. Diagnostic Code 9434 governs ratings for MDD, based on the regulations set forth in 38 C.F.R. § 4.126 and § 4.130, the General Rating Formula for Mental Disorders. Under 38 C.F.R. § 4.130, Diagnostic Code 9434, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Use of the term "such as" in the criteria for a rating under § 4.130 indicates that the list of symptoms that follows is "non-exhaustive," meaning that VA is not required to find the presence of all, most, or even some of the enumerated symptoms to assign to a rating. See, Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see also, Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). However, because "[a]ll nonzero disability levels [in § 4.130] are also associated with objectively observable symptomatology," and the plain language of the regulation makes it clear that "the veteran's impairment must be 'due to' those symptoms," "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio, 713 F.3d at 116-17. "[I]n the context of a 70 [percent] rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas." Id. at 117. Thus, assessing whether a 70 percent evaluation is warranted requires a two-part analysis: "The . . . regulation contemplates [: (1) ] initial assessment of the symptoms displayed by the veteran, and if they are of the kind enumerated in the regulation[; and (2) ] an assessment of whether those symptoms result in occupational and social impairment with deficiencies in most areas." Vazquez-Claudio, 713 F.3d at 118. Effective August 4, 2014, VA amended the portion of the Schedule for Rating Disabilities dealing with mental disorders to remove outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), and replaced them with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). The provisions of the interim final rule apply to all applications for benefits that are received by VA or that were pending before the Agency of Original Jurisdiction (AOJ) on or after August 4, 2014. This appeal was pending long before August 4, 2014. Although DSM-IV applies to this appeal, it is worth noting that, according to the DSM-5, clinicians do not typically assess GAF scores. The DSM-5 introduction states that it was recommended that the GAF be dropped from DSM-5 for several reasons, including its conceptual lack of clarity (i.e., including symptoms, suicide risk, and disabilities in its descriptors) and questionable psychometrics in routine practice. In reviewing the evidence of record, the Board will consider the assigned GAF score; however, the Board is cognizant that GAF scores are not, in and of themselves, the dispositive element in rating a disability. Rather, GAF scores must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned. See 38 C.F.R. § 4.126(a). GAF scores, which reflect the psychological, social, and occupational functioning of an individual on a hypothetical continuum of mental health, can be useful indicators of the severity of a mental disorder. See Diagnostic and Statistical Manual of Mental Disorders (4th ed.) (DSM-IV). GAF scores ranging between 61 to 70 reflect mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally indicate that the individual is functioning pretty well, and has some meaningful interpersonal relationships. Scores between 51 to 60 are indicative of moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers). GAF scores between 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). Scores between 31 to 40 indicate some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work). The medical evidence in this case shows that the Veteran has been receiving psychiatric treatment on an outpatient basis, on and off, throughout the period covered by this claim. In addition, the Veteran was also afforded VA examinations during the relevant period in question in October 2008 and April 2010. When all of this evidence is viewed collectively, the Board finds that the overall disability picture more nearly approximates the criteria for the assignment of a 50 percent rating, but not a 70 percent rating. As noted in greater detail below, the record shows that the Veteran has reported one or two suicide attempts; and, suicidal ideation on occasion, but without plan. The Veteran has not reported that he has suicidal ideation on a consistent basis. By contrast, the outpatient treatment records consistently show that the Veteran does not present with suicidal ideation, and specifically denied suicidal ideation. See July 2008, VA mental health treatment records. Additionally, these records show that mental status examinations in 2008, 2009, 2010, 2011 and 2012 consistently show that the Veteran is fully oriented, with insight and judgment normal, good eye contact, appropriate behavior, and appropriate attire. While the Veteran has reported that he neglects his hygiene at home, particularly when he goes through depressed periods when he does not want to get out of bed, he has consistently presented to therapy appointments, social worker appointments and examinations clean, kemp, and adequately dressed. Likewise, the Veteran’s daughter has reported that her father can exhibit impaired impulse control, but this is not something that the Veteran’s psychiatrists, therapists, social workers or examiners have indicated is a regular occurrence or a pattern. The Veteran’s daughter also reported that the Veteran was always depressed. This is consistent with the mental health records. However, the Veteran’s self-reported history at the October 2008 VA examination and April 2010 examination is somewhat inconsistent with what he told his treatment mental health therapists, social workers, and psychiatrist during this same period. For example, at an October 2008 VA examination the Veteran reported that he was struggling with isolation, feelings of worthlessness, relationship difficulties, sleep difficulties and anger. He reported feeling depressed daily, and acknowledged thoughts of suicide, but without any plan. The report notes that the Veteran has three failed marriages; that he has three children, two from his first marriage, with whom he has no contact; and, one child from his second marriage with whom he speaks and sees daily. The Veteran reportedly had a few friends, but did not socialize with them. He enjoyed going to the movies. He was able to cook, clean, run errands, and complete activities of daily living such as grooming and dressing, although he endorsed a lack of motivation to do these things on some days. On mental status examination, the Veteran was alert and fully oriented. He was dressed in pants, a short-sleeved shirt and dress shoes. Grooming was good. His overall mood was dysphoric. Affect was congruent with this. Eye contact was minimal. Speech was normal in tone and rate. Thought process was concrete and goal-oriented. He denied any current suicidal or homicidal ideation. There was no evidence of a psychotic disorder. Judgment and insight were fair and impulse control was appropriate during the interview. Cognitive abilities appeared average. The diagnosis was MDD, moderate. GAF was 51. At the April 2010 VA examination, the Veteran reported continued problems with depression, isolation and social withdrawal. He endorsed suicidal ideation, but without plan or intent. The Veteran reported struggling with concentration and focus, noting that he gets confused at times, although he noted that his daughter and neighbor were very supportive. The Veteran reported sleep disturbance and being easily frustrated and irritable. He reported having a very good relationship with his daughter and granddaughter, with whom he lived, as well as with a few friends in his neighborhood. He also enjoyed watching movies. He was able to cook, clean, dress and groom himself without assistance. On mental status examination, the Veteran was alert and fully oriented. He was early for his evaluation, and grooming was good. His overall mood appeared dysphoric. Affect was restricted. Eye contact was appropriate. Speech was normal in rate and tone. There was no psychomotor agitation or retardation observed. His thought process was logical and goal-oriented. He denied any current suicidal or homicidal ideation, and there was no evidence of a psychotic disorder. Judgment and insight were adequate and impulse control during the interview was appropriate. Cognitive abilities appeared average and memory appeared intact. The diagnosis was MDD, moderate. GAF was 51. VA mental health treatment records between 2008 and 2010 note that the Veteran’s depression was worse on some days, and better on others. For example, a July 2008 psychiatry progress note indicates that the Veteran reportedly struggled every day; however, he nevertheless denied hopelessness, suicidal ideation, homicidal ideation, and panic attacks. A July 2008 mental status evaluation indicated that the Veteran was alert, oriented, well-groomed, maintained good eye contact, was friendly, polite and cooperative with the interview process. Speech rate, volume, and quantity were within normal limits. Mood was anxious and sad, but thought process was logical and goal directed. The Veteran denied suicidal ideation. In August 2008, the Veteran reported that he was feeling “very good.” He denied depression and denied suicidal ideation. He also reported that his relationship with family was good. A November 2008 VA psychiatry progress report noted that the Veteran was alert, oriented time 4, appeared well, was well-groomed and made good eye contact. He was friendly, polite, and cooperative with the interview process. Speech rate and volume were within normal limits. The Veteran’s mood was “stressed,” and affect was congruent with mood. Thought process was logical, goal-directed, and coherent. There were no psychotic symptoms and no perceptual disturbances. The Veteran denied suicidal ideation, intent or plan. Insight and judgment were intact. The assessment was depressive disorder. GAF was 53. In November 2008, the Veteran reported that he was sleeping better with new medications. A November 2008 mental status examination was similar to the August 2008 findings. Similarly, a February 2009 psychiatry progress note indicates that the Veteran’s mood was good and he denied depression. He was feeling good and denied suicidal and homicidal ideation. On mental status examination, the Veteran’s appearance was good, and he was well-groomed, with good eye contact. He was friendly, polite, and cooperative with the interview process. Speech rate, volume, and quantity were within normal limits. Mood was “good,” and affect was congruent with mood. He reacted appropriately, and had a full range of affect. Thought process was logical and goal-directed. Thought content was without psychotic symptoms, and without perceptual disturbances. The Veteran denied suicidal ideation, intent, or plan. Insight and judgment were intact. The examiner’s assessment was depressive disorder in remission. GAF was 53. An August 2009 VA psychiatry progress note indicates that the Veteran was depressed, with low energy and motivation. His main stressor at that time was that his step son had recently committed suicide. He endorsed some passive suicidal ideation, but denied psychotic/manic symptoms. He was not sleeping well because of back pain. On mental status examination, the Veteran was alert, oriented and well-groomed. He had good eye contact and was cooperative. Speech was normal. Mood was depressed, but thought process was logical, goal-directed and coherent. He denied suicidal ideation. GAF was 49. A December 2009 VA mental health outpatient note shows that the Veteran had some stress recently due to his daughter being in the hospital. He reported irritability and anger, with low motivation. His memory was good and he was able to concentrate and focus. He was polite, cooperative, alert and orient. Judgment and insight were good. Thoughts were coherent and relevant to the conversation. The assessment was depression. A February 2010 social worker’s assessment notes that the Veteran overdosed on pills in 2009, which he attributed to increased depression. He reported continued isolation and severe pain from a back disability; however, he indicated that he currently had an adequate support system from his daughter, friends, and his parents. He also denied suicidal ideation, intent or plan at that time. The Veteran indicated that his chronic back pain often interfered with activities of daily living, noting that he may go a few days without showering if the pain gets too intense. On mental status examination, the Veteran was dressed appropriately, and made good eye contact. Thought content was optimistic/goal oriented. Thought process was tangential and the Veteran was talkative. There was no current suicidal or homicidal ideation. The Veteran became tearful during the interview, but was consoled and able to complete the interview. Affect was euthymic and congruent with reported mood. Other VA mental health treatment records from 2010 show that the Veteran regularly attended group therapy for recovered substance abusers in remission. The group therapy notes that the Veteran was an active participant in the group. A July 2012 VA mental health outpatient note indicates that the Veteran stopped taking his medications because it makes him tired. He reported being more depressed over the last month, with a lack of motivation. His sleep was interrupted and he felt tired all the time. Another July 2012 VA social worker note indicates that the Veteran continued to struggle with depression, but he had the support of friends, and was planning to return to church for additional support networks. An August 2012 VA mental status examination; and, October 2012 and April 2013 social worker notes indicated findings similar to previous reports from 2009 and 2010, with depression being the overriding symptom. A VA psychiatrist’s progress note from April 2013 suggests that the Veteran was doing a little better at that time, with his mood being less depressed than previously noted. Other findings were similar, and included good eye contact, cooperative with the interview process, and normal speech rate and rhythm. He exhibited a logical, goal-directed, and coherent thought process, without psychotic symptoms and without perceptual disturbances. The Veteran denied suicidal ideation, intent, or plan. He was alert and fully oriented. Insight and judgment were appropriate, and adequate for medical decision-making ability. GAF was 55. In May 2013, the Veteran reported to a VA social worker that his mood was “very good,” and that he had been busy with his new grandchild. However, at his July 2013 Board hearing, the Veteran reported that his symptoms had gotten worse. He testified that he was becoming more and more withdrawn, and did not like to leave his house. He also testified that he kept his windows and curtains closed. He also testified that he was no longer able to get along with others, and became easily irritated by people. Hearing Transcript, pp. 4-5. The Veteran also testified that his insomnia was getting worse as he only slept two to three hours a night. Hearing Transcript, p. 6. The Veteran testified that for the entire month prior to the hearing, he had been feeling dreary and not cheerful. He had a lack of motivation to do anything, and he had been lying in his bed most of the day. Hearing Transcript, p. 14. Based on the foregoing, the Board finds that the overall disability picture prior to the July 2013 hearing more nearly approximates the criteria for the assignment of a 50 percent rating, but not a 70 percent rating. Although the Veteran has exhibited acute and isolated episodes of suicidal ideation, it is not an overriding or consistent manifestation. The Veteran has denied suicidal ideation on numerous occasions as noted above and given that the Veteran is highly functioning in most other areas, the Board finds it inappropriate to assign a 70 percent rating based on suicidal ideation. Similarly, while the Veteran has admittedly ignored his hygiene during periods when he stays at home, the Board finds that such neglect of personal hygiene in private does not warrant the assignment of a 70 percent rating, particularly when the evidence clearly demonstrates that the Veteran attends all of his examinations and therapy appointments appropriately dressed and clean. In other words, the Board finds that the Veteran’s neglect of personal hygiene at home does not fall within the context of the intent of the regulations. Rather, the Board interprets the symptom of “neglect of personal appearance and hygiene,” which is associated with the assignment of a 70 percent rating, to mean neglect in a public setting. Moreover, while the Veteran has consistently exhibited near-continuous depression, this symptom has not prevented the Veteran from functioning independently, appropriately or effectively, as shown by the Veteran’s therapy notes, examination reports and social worker visits. As such, the Board finds that the preponderance of the evidence demonstrates that the Veteran’s MDD does not meet any of the criteria for a rating higher than 50 percent and that his symptoms are substantially less than those reflective of a 70 percent rating. Consequently, the Veteran does not more nearly meet or approximate the criteria for a 70 percent rating prior to July 18, 2013. See 38 C.F.R. § 4.7. REASONS FOR REMAND 1. Entitlement to a TDIU, to include on an extraschedular basis, prior to July 18, 2013 is remanded. The Veteran’s service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) prior to July 18, 2013. However, in a September 2018 argument, the Veteran’s counsel argued that he could not work due to symptomatology associated with service-connected major depressive disorder. The Veteran’s claim for TDIU prior to July 18, 2013 is being remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. The matter is REMANDED for the following action: 1. Refer the Veteran’s claim for TDIU to VA’s Director of Compensation Service for extraschedular consideration prior to July 18, 2013. 2. After completing the requested actions, and any additional development deemed warranted, readjudicate the claims in light of all pertinent evidence and legal authority. If the benefits sought remain denied, furnish to the Veteran a Supplemental Statement of the Case and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. P. Keeley, Associate Counsel