Citation Nr: 18149100 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-54 408 DATE: November 8, 2018 ORDER The petition to reopen a claim of entitlement to service connection for sleep apnea is granted. The petition to reopen a claim of entitlement to service connection for an acquired psychiatric disability, claimed as posttraumatic stress disorder (PTSD), is granted. Entitlement to service connection for sleep apnea is granted. Entitlement to service connection for a headache disability is denied. Entitlement to service connection for PTSD is granted. Entitlement to an initial rating in excess of 10 percent for tinnitus is denied. An effective date earlier than September 29, 2014 for the award of service connection for hearing loss, left ear, is denied. An effective date earlier than September 29, 2014 for the award of service connection for tinnitus is denied. REMANDED Entitlement to a rating in excess of 10 percent for lumbosacral strain is remanded. Entitlement to a rating in excess of 20 percent for a left foot injury is remanded. Entitlement to an initial compensable rating for left ear hearing loss is remanded. Entitlement to an earlier effective date for the grant of a 20 percent disability rating for a left foot injury is remanded. Entitlement to an earlier effective date for the grant of a 10 percent disability rating for lumbosacral strain is remanded. Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) is remanded. FINDINGS OF FACT 1. A July 2012 rating decision last denied service connection for sleep apnea and PTSD; evidence pertaining to the Veteran’s sleep apnea and PTSD since the last final rating decision was not previously submitted, relates to unestablished facts necessary to substantiate the claims, and is neither cumulative nor redundant and raises a reasonable possibility of substantiating the claims. 2. The Veteran’s sleep apnea had its onset in service or is etiologically related to his active service. 3. The preponderance of the evidence fails to demonstrate that the Veteran’s headache disability is related to service, or the result of any incident therein. 4. The Veteran’s PTSD was caused by his conceded combat stressors in the Gulf War. 5. The Veteran’s service-connected tinnitus is assigned a 10 percent rating, which is the maximum schedular rating authorized for tinnitus under Diagnostic Code 6260, for either a unilateral or a bilateral condition. 6. In a statement received by the RO on September 29, 2014, the Veteran submitted claims of entitlement to service connection for tinnitus; the RO additionally assumed a claim for hearing loss based on his tinnitus claim. 7. In a November 2014 rating decision, the RO granted service connection for tinnitus and hearing loss, left ear; an effective date of September 29, 2014 was assigned for both disabilities. CONCLUSIONS OF LAW 1. The July 2012 rating decision which denied the Veteran’s claims for sleep apnea and PTSD is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.160(d), 20.1103. 2. The evidence received since the last final July 2012 rating decision is new and material, and the claims for service connection for sleep apnea and PTSD are reopened. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156, 20.1103. 3. The criteria for service connection for sleep apnea are met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 4. The criteria for service connection for a headache disability are not met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a). 5. The criteria for service connection for PTSD are met. 38 U.S.C. §§ 1110, 1131, 1154, 5107(b); 38 C.F.R. §§ 3.303, 3.304. 6. The criteria for an initial rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. 7. The criteria for an effective date earlier than September 29, 2014, for the award of service connection for hearing loss, left ear, have not been met. 38 U.S.C. §§ 5103, 5103A, 5110; 38 C.F.R. § 3.400. 8. The criteria for an effective date earlier than September 29, 2014, for the award of service connection for tinnitus have not been met. 38 U.S.C. §§ 5103, 5103A, 5110; 38 C.F.R. § 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1984 to October 1996, from December 2004 to May 2006, and from October 2010 to March 2011. New and Material Evidence 1. Whether new and material evidence has been submitted to reopen claims of entitlement to service connection for sleep apnea and PTSD. At the time of the last final denial of the Veteran’s claims for service connection for sleep apnea and PTSD, in July 2012, evidence of record included VA treatment records, private treatment records, and a VA examination. Evidence associated with the claims file since the previous July 2012 denial includes VA treatment records, private positive etiological opinions, and statements reflecting continued issues with his claimed disabilities. Based on this new evidence, the Board finds that the new and material criteria under 38 C.F.R. § 3.156(a) have been satisfied, and the claims for service connection for sleep apnea and PTSD are reopened. Service Connection Under the relevant laws and regulations, 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, 1131 (2012). Generally, the evidence must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden element is through a demonstration of continuity of symptomatology if the disability claimed qualifies as a chronic disease listed in 38 C.F.R. § 3.309(a). Regulations also provide that service connection may be granted for a disability diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability is due to disease or injury which was incurred in or aggravated by service. 38 C.F.R. § 3.303(d). Finally, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, “[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). 2. Entitlement to service connection for sleep apnea. The Veteran asserts that he has sleep apnea related to service. The Board concludes that the Veteran has a current diagnosis of sleep apnea that is related to his active service. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service treatment records (STRs) reflect complaints of trouble sleeping and long-term sleep problems. See STRs dated April 1995, June 2005. Additionally, shortly following separation from service the Veteran reported long term sleep problems. See November 2011 treatment record. The record includes a March 2017 private medical opinion which states that based on an interview with the Veteran and review of his records, the Veteran’s sleep apnea as likely as not began in military service and continues uninterrupted to the present. Significantly, the private examiner specifically relates the Veteran’s current sleep apnea to his service. Coupled with the report from the Veteran of continuous sleep problems since service, the Board finds that the point of relative equipoise has been reached regarding a nexus between the Veteran’s service and his current sleep apnea. Therefore, with resolution of all reasonable doubt in favor of the claim, the Board finds that service connection for sleep apnea is warranted. 3. Entitlement to service connection for a headache disability. The Veteran claims he suffers from a headache disability related to service. Service treatment records reflect some complaints of headaches in service. Post-service treatment records continue to reflect treatment for headaches. The Board has also considered the Veteran’s statements regarding continuity of symptoms since service. However, the Federal Circuit has held that the theory of continuity of symptomatology can be used only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a). As the Veteran’s current headaches are not listed under 3.309(a), continuity of symptomatology is simply not applicable in the present case. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, there is no medical evidence to link his current disability to the Veteran’s periods of active duty. A November 2014 VA examination was completed. The VA examiner noted the Veteran’s history of complaints in service of headaches. The examiner opined that the Veteran’s headaches are less likely as not caused by or a result of active military service. She stated that the headaches documented in active duty during the Veteran’s first tour are quite different from the current claimed headaches. She stated that by the time of separation they had apparently resolved as the separation examination and report of medical history in 1996 and other questionnaires and service treatment records after that were silent for recurrence. She noted the Veteran’s reports of his current headaches are not the same type of headaches as documented in active duty and concluded that the most accurate description of the Veteran’s current headaches would be more in the category of a universally occurring tension headache, unrelated to active duty. The Board has closely reviewed the medical and lay evidence in the Veteran’s claims file and finds no evidence that may serve as a medical nexus between the Veteran’s service and his headache disability. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issues in this case, the etiology of his headache disability, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). In any event, the probative value of the Veteran’s contentions is outweighed by the November 2014 VA opinion. In sum, the competent evidence does not establish that the Veteran’s currently-diagnosed headache disability is related to any period of his active duty in any way. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The preponderance is against the Veteran’s claim, and as such it must be denied. 4. Entitlement to service connection for an acquired psychiatric disability, claimed as PTSD. Service connection for PTSD requires medical evidence diagnosing this disorder based on examination findings and in accordance with the DSM-5 (where, as here, certification was after August 4, 2014); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. §§ 3.304(f), 4.125(a). If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran’s service, the veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f)(2). The Veteran asserts that his PTSD was caused by stressors that occurred during his service in the Gulf War. For the reasons set forth below, the Board concludes that service connection for PTSD is warranted. The Board has considered an Informal Line of Duty Determination, issued in August 2013, which reflects that the Veteran was an Army helicopter medic who experienced traumatic images and events in Iraq during the first Gulf War in 1991. It noted that the Veteran has suffered from chronic PTSD since the first Gulf War and that his symptoms and illness were corroborated by his wife in an interview with medical personnel. Based on a totality of the evidence, including the Veteran’s statements, the Board finds that he engaged in combat with the enemy. Given that the Veteran engaged in combat, the absence of clear and convincing evidence to the contrary, and the fact that his claimed stressors are consistent with the circumstances of his service, the Board finds that the Veteran’s lay testimony establishes the occurrence of the claimed in-service stressors. The dispositive issue is whether the Veteran has PTSD that is causally related to these conceded military combat stressors. In a February 2014 letter, the Veteran’s private treating psychologist noted that the Veteran was diagnosed with PTSD as a direct result of his deployments overseas. She noted that the Veteran’s PTSD was exacerbated during his second deployment to Afghanistan in May of 2005. A June 2014 VA examiner found that the Veteran did not have a diagnosis of PTSD. The United States Court of Appeals for Veterans Claims (Court) has held that the presence of a disability at any time during the claims process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). In a January 2017 private examination report, it was noted that the Veteran suffers from PTSD more likely than not caused by his conceded stressors in service, continues uninterrupted to the present, and is aggravated by his left foot injury, lumbosacral strain, tinnitus and left ear hearing loss. This analysis was completed following a detailed interview of the Veteran and review of his records. Given the conflicting diagnoses of PTSD based on examination by mental health professionals, the Board finds that the evidence of record is approximately evenly balanced as to whether the Veteran meets the diagnostic criteria for PTSD. Cohen v. Brown, 10 Vet. App. 128, 139, 140 (1997) (mental health professionals are presumed to know the requirements applicable to their practice and to have taken them into account when diagnosing PTSD). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, the Board finds that the Veteran has met the current disability requirement with regard to the claim for service connection for PTSD. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As there is medical evidence of PTSD and conceded military combat stressors, the remaining question is whether there is a relationship between the two. Here, the private examiners have diagnosed the Veteran with PTSD based on his in-service combat experience. The Board finds the medical nexus opinions highly persuasive to show a current psychiatric disability attributable to military service, as the qualified medical professionals provided a detailed history of the Veteran’s symptoms and history and an explanation for the positive medical opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008) (value of medical opinion is found within its rationale). Additionally, the medical opinions are consistent with the additional record, to specifically include the Veteran’s report of longstanding psychiatric symptoms as noted in his lay statements. The evidence is thus at least evenly balanced as to whether the Veteran has PTSD that is related to his conceded in-service combat stressors. As the reasonable doubt created by this relative equipoise must be resolved in favor of the Veteran, entitlement to service connection for PTSD is warranted. 38 U.S.C.§ 5107(b); 38 C.F.R. § 3.102. Increased Rating 5. Entitlement to an initial rating in excess of 10 percent for tinnitus. Disability ratings are determined by the application of the VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities, which are based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2018). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2018). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2018). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2018). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran has requested an increased rating for his service-connected tinnitus. The Veteran’s service-connected tinnitus has been assigned a 10 percent rating, which is the maximum schedular rating available for tinnitus. 38 C.F.R. § 4.87, Diagnostic Code 6260. The Veteran’s tinnitus is rated 10 percent under Diagnostic Code 6260. 38 C.F.R. § 4.87 (2018). Under that diagnostic code, a single 10 percent rating is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. The maximum schedular rating available for tinnitus is 10 percent. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.87 (2018); Smith v. Nicholson, 451 F.3d. 1344 (Fed. Cir. 2006). As there is no legal basis upon which to award a higher schedular rating, or separate schedular ratings for each ear, the appeal must be denied. Sabonis v. Brown, 6 Vet. App. 426 (1994). The Board further finds that referral for consideration of an extraschedular rating is not warranted, as the evidence regarding the Veteran’s tinnitus does not show such an exceptional disability picture that would render the available schedular rating inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran has not provided any evidence that his tinnitus is of such a degree that the 10 percent schedular disability rating is insufficient. The evidence does not show frequent hospitalization or marked interference with employment as a result of tinnitus. Therefore, the Board finds that the schedular rating of 10 percent for the Veteran’s tinnitus is adequate, and no referral is required for extraschedular consideration. 38 C.F.R. § 3.321(b) (2018). Effective Dates 6. Entitlement to an effective date earlier than September 29, 2014 for the grant of service connection for (a) hearing loss, left ear and (b) tinnitus. On September 29, 2014, the RO received a claim of entitlement to service connection for tinnitus. The RO additionally considered a claim for hearing loss based on his tinnitus claim. In a November 2014 rating decision, the RO granted service connection for hearing loss, left ear, and for tinnitus, both effective September 29, 2014. The Veteran appealed, requesting effective dates prior to September 29, 2014. Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The term application, while not defined in the statute, is broadly construed by regulation to include a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). Where a formal claim has already been allowed, certain submissions will be accepted as an informal claim. Furthermore, any communication or action indicating an intent to apply for VA benefits from a claimant or representative may be considered an informal claim provided that such informal claim identifies the benefit being sought. 38 C.F.R. § 3.155(a). See Brannon v. West, 12 Vet. App. 32, 34 (1998). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Board has considered whether any evidence of record prior to September 29, 2014, could serve as an informal claim in order to entitle the Veteran to an earlier effective date for entitlement to service connection for hearing loss of the left ear or tinnitus. However, no document submitted prior to September 29, 2014, indicates intent to pursue a claim for either hearing loss or tinnitus. The Board acknowledges that treatment records show treatment for the Veteran’s hearing prior to September 2014. However, the Court has explicitly stated that the “mere presence” of a diagnosis of a specific disorder in a VA medical report “does not establish an intent on the part of the veteran” to seek service connection for that disorder. Brannon v. West, 12 Vet. App. 32, 35 (1998); see MacPhee v. Nicholson, 459 F.3d 1323; 38 C.F.R. § 3.155. Accordingly, the mere existence of medical records in a case cannot be construed as an informal claim. Id.; Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007), aff’d 541 F.3d 1364 (Fed. Cir. 2008). As previously noted, an effective date is assigned based on the date of the claim or the date entitlement arose, whichever is later. In this case, entitlement arose prior to the date of the claim. Therefore, the September 29, 2014 date selected by the RO is the earliest possible effective date with regards to the claims for service connection for left ear hearing loss and tinnitus. In the instant case, given the governing legal authority, based on these regulations, the effective dates have been appropriately assigned as the date of claim. For the reasons outlined above, the Board is precluded by law from assigning effective dates prior to September 29, 2014, for the grant of service connection for left ear hearing loss or for service connection for tinnitus. Therefore, the Veteran’s claims for earlier effective dates must be denied. REASONS FOR REMAND Further evidentiary development is required prior to reviewing the issues remaining on appeal. 1. Entitlement to a rating in excess of 10 percent for lumbosacral strain, a rating in excess of 20 percent for left foot injury, and an initial compensable rating for left ear hearing loss are remanded. The Veteran was last afforded VA examinations of his back and foot in June 2014 and his hearing loss in November 2014. The evidence of record indicates that his disabilities may have worsened since his last VA examinations. The Board finds that he should be afforded new examinations in order to determine the current nature and severity of these service-connected disabilities. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Additionally, the Board finds that the Veteran’s claims for increased ratings for his lumbosacral strain and left foot injury are inextricably intertwined with his remanded claims below for earlier effective dates. Therefore, the Board will not issue a decision on these claims at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are ‘inextricably intertwined’ when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). 2. Entitlement to an earlier effective date for the grant of a 20 percent disability rating for a left foot injury and entitlement to an earlier effective date for the grant of a 10 percent disability rating for lumbosacral strain are remanded. The Board notes that in a June 2014 rating decision the Veteran was granted an increased rating of 10 percent for his lumbosacral strain, effective May 28, 2014. His rating of 20 percent for his service-connected left foot injury was continued. In a September 2014 statement, the Veteran expressed disagreement with the effective dates assigned. When there has been an initial AOJ adjudication of a claim and a notice of disagreement as to its denial, the claimant is entitled to a statement of the case (SOC). See 38 C.F.R. § 19.26 (2018). Thus, remand for issuance of a SOC on these issues is necessary. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). However, these issues will be returned to the Board after issuance of the SOC only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997). 3. Entitlement to TDIU is remanded. A review of the evidence reflects that the issue of a TDIU has been raised by the record. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of an increased rating claim when such claim is reasonably raised by the record. In light of evidence associated with the Veteran’s claims file during the appeal period, the Board finds that the issue of entitlement to a TDIU is reasonably raised by the record and considered to be part of the Veteran’s appeal for increased ratings. The Veteran’s claim for entitlement to TDIU is inextricably intertwined with his remanded claims for increased ratings. Therefore, the Board will not issue a decision on this claim at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are ‘inextricably intertwined’ when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The Board finds that Veterans Claims Assistance Act of 2000 (VCAA) notice should be provided to the Veteran. The matters are REMANDED for the following actions: 1. A statement of the case, containing all applicable laws and regulations, on the issues of (a) entitlement to an earlier effective date for the grant of a 20 percent disability rating for a left foot injury and (b) entitlement to an earlier effective date for the grant of a 10 percent disability rating for lumbosacral strain must be issued, and the Veteran must be advised of the time period in which to perfect his appeal. Only if the Veteran’s appeal as to these issues is perfected within the applicable time period should these issues be returned to the Board for appellate review. 2. Provide the Veteran with notice in compliance with the VCAA that notifies him of what evidence he must show to support a claim for a TDIU. 3. Schedule the Veteran VA examinations to determine the nature and severity of his service-connected (a) lumbosacral strain, (b) left foot injury, and (c) left ear hearing loss. The Veteran’s claims file should be provided to the examiner. The examiner must obtain a detailed clinical history from the Veteran and must note all pertinent pathology found on examination in the report of the evaluation. Any testing deemed necessary should be performed. The examiner must provide a full description of each disability and report all signs and symptoms necessary for evaluating the Veteran’s lumbosacral strain, left foot injury and left ear hearing loss under the applicable rating criteria. The examiner must comment on the functional effects of each disability evaluated. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A.M. Clark, Counsel