Citation Nr: 18150139 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-41 224 DATE: November 14, 2018 ORDER The Veteran’s application to reopen his claim of entitlement to service connection for diabetes mellitus is, and to this extent only, the claim is granted. An effective date prior to June 6, 2001, for the grant of service connection for left knee chondromalacia with instability is denied. An effective date prior to June 15, 2005, for the grant of service connection for sleep apnea is denied. An effective date prior to August 15, 2003, for the grant of a total rating for compensation purposes based on individual unemployability due to service connected disabilities (TDIU) is denied. A 100 percent rating is granted for obstructive and restrictive pulmonary disease with sleep apnea since June 15, 2005. REMANDED The issue of entitlement to service connection for hypertension is remanded. The issue of entitlement to service connection for erectile dysfunction is remanded. The issue of entitlement to service connection for renal nephropathy is remanded. The issue of entitlement to service connection for diabetes mellitus is remanded. The issue of entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. The issue of entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. The issue of entitlement to service connection for muscle group XXI damage is remanded. The issue of entitlement to service connection for a disability resulting from the retention of a metallic clip is remanded. The issue of compensation under 38 U.S.C. § 1151 for 7th rib resection is remanded. The issue of compensation under 38 U.S.C. § 1151 for an obstructive and restrictive lung disorder is remanded. The issue of compensation under 38 U.S.C. § 1151 for disability resulting from the retention of a metallic clip is remanded. The issue of compensation under 38 U.S.C. § 1151 for chronic kidney dysfunction is remanded. The issue of special monthly compensation (SMC) for loss of use of a creative organ is remanded. The issue of an increased initial rating since June 6, 2001, for the Veteran’s service connected knee disorder is remanded. FINDINGS OF FACT 1. In August 2010, the Board denied reopening of a claim for service connection for diabetes mellitus. The Veteran was informed in writing of the adverse determination and his appellate rights at that time. 2. The August 2010 Board decision is final. 3. The additional documentation submitted since the August 2010 Board decision is new and material and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for diabetes mellitus. 4. Entitlement to service connection for a left knee disorder arose in service. 5. In a statement received by VA on June 6, 2001, the Veteran informed VA he wished to file a claim for service connection for a left knee disorder. 6. No formal claim, informal claim, or other communication requesting service connection for a left knee disorder was received by VA prior to June 6, 2001. 7. Entitlement to service connection for sleep apnea arose on June 6, 2001. 8. The Veteran submitted private treatment records which were received by VA on June 15, 2005, indicating sleep complaints and a statement dated July 19, 2006, indicated that the Veteran wished to establish service connection for sleep apnea. 9. No formal claim, informal claim, or other communication requesting service connection for sleep apnea was received by VA prior to June 15, 2005. 10. The Veteran’s service-connected disorders did not prevent him from securing or following a substantially gainful occupation until August 15, 2003. 11. With resolution of the doubt in his favor, the Veteran’s obstructive and restrictive pulmonary disease with sleep apnea caused pulmonary hypertension. CONCLUSIONS OF LAW 1. The August 2010 Board decision denying reopening service connection for diabetes mellitus is final. 38 U.S.C. § 7104 (2012); 38 C.F.R. § 20.1100 (2017). 2. New and material evidence sufficient to reopen the Veteran’s claim of entitlement to service connection for diabetes mellitus has been presented. 38 U.S.C. §§ 5103, 5103A, 5107, 5108 (2012); 38 C.F.R. §§ 3.102, 3.156, 3.159, 3.326(a) (2017). 3. The criteria for assignment of an effective date prior to June 6, 2001, for the grant of service connection for left knee chondromalacia with instability have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400 (2001). 4. The criteria for assignment of an effective date prior to June 15, 2005, for the grant of service connection for sleep apnea have not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 3.155, 3.157, 3.400 (2005). 5. The criteria for an effective date prior to August 15, 2003, for the grant of TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.326(a), 4.16 (2017). 6. The criteria for a rating of 100 percent, since June 15, 2005, for obstructive and restrictive pulmonary disease with sleep apnea have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.96, 4.97, Diagnostic Codes 6604, 6847 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the U.S. Marine Corps from July 1975 to October 1981 and from July 1982 to October 1984. Effective August 2003, the Veteran is rated as totally disabled based on individual unemployability (“TDIU”). New and Material Evidence Generally, absent the filing of an NOD within one year of the date of mailing of the notification of the initial review and determination of a veteran’s claim and the subsequent filing of a timely substantive appeal, a rating determination is final and is not subject to revision upon the same factual basis except upon a finding of clear and unmistakable error (CUE). 38 U.S.C. §§ 5108, 7105; 38 C.F.R. §§ 20.200, 20.300, 20.1103. A claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 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. 38 C.F.R. § 3.156(a). The provisions of 38 C.F.R. § 3.156(a) create a low threshold, with the phrase “raises a reasonable possibility of substantiating the claim” enabling rather than precluding reopening and not constituting a third requirement that must be met before the claim is reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010); Evans v. Brown, 9 Vet. App 273, 283 (1996). See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). The Board is required to consider the question of whether new and material evidence has been received to reopen the Veteran’s claim without regard to the RO’s determination to establish the Board’s jurisdiction to address the underlying claims and to adjudicate the claims on a de novo basis. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In August 2010, the Board denied reopening the Veteran’s claim for diabetes mellitus because there was no new and material evidence that the Veteran’s diabetes was caused by or originated during service. The additional documentation received since the August 2010 Board decision includes both VA and private medical opinions. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). Here, without examination of any other evidence of record, the newly-submitted evidence is of such significance that, when considered for the limited purpose of reopening the Veteran’s claim, it raises a reasonable possibility of substantiating his claim for service connection when considered with the previous evidence of record. As new and material evidence has been received, the Veteran’s claim is reopened. Effective Dates 1. Entitlement to an effective date prior to June 6, 2001, for the grant of service connection for left knee chondromalacia and instability. Unless otherwise specifically provided in Chapter 51 of Title 38 of the United States Code, the effective date of an award based on an original claim shall be fixed in accordance with the facts found, but shall not be earlier than the date of application therefor. 38 U.S.C. § 5110(a) (2012). The effective date shall be the date of receipt of the Veteran’s claim or the date on which entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i) (2017). During the relevant period in this case, VA regulation provided that any communication or action, indicating intent to apply for one or more benefits under the laws administered by VA, from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. 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. 38 C.F.R. § 3.155 (2001). In a statement received by VA on June 6, 2001, the Veteran stated that he wished to file a claim for service connection for his left knee. In a May 2011 rating decision, VA determined that the Veteran’s left knee chondromalacia was caused by service. In a November 2015 rating decision, VA determined that the Veteran was entitled to a separate compensable rating for left knee instability. The effective date of both ratings was established as June 6, 2001. As the Veteran’s left knee disorder was determined to have been caused by service, entitlement arose in service. However, the Veteran did not indicate that he wished to file a claim for service connection for a left knee disorder until June 6, 2001. No formal claim, informal claim, or other communication requesting service connection for a left knee disorder was received by VA prior to June 6, 2001. The effective date of the grant of service connection is the date of receipt of the Veteran’s claim or the date on which entitlement arose, whichever is later. Entitlement arose in service but the date of receipt of the claim was June 6, 2001. Therefore, that date is the correct effective date and an earlier effective date is not warranted. The appeal is denied. 2. Entitlement to an effective date prior to June 15, 2005, for the grant of service connection for sleep apnea. The Veteran’s sleep apnea is currently rated as part of his obstructive and restrictive pulmonary disease which has an effective date of June 6, 2001. An effective date prior to that for the grant of service connection for that disorder was denied by the Board in August 2010. Therefore, that date will not be reconsidered here. A September 2015 VA examination report states that the Veteran’s service connected obstructive and restrictive pulmonary disease aggravated his sleep apnea. Service connection for obstructive and restrictive pulmonary disease has been in effect since June 6, 2001. As the Veteran’s service connection for sleep apnea was granted secondary to the pulmonary disease, entitlement to service connection for sleep apnea did not arise until June 6, 2001. On June 15, 2005, VA received several treatment records submitted by the Veteran which indicated sleep complaints. A July 2006 statement from the Veteran indicated that the Veteran wished to be considered for service connection for sleep apnea. In a September 2015 rating decision, VA granted service connection for sleep apnea with an effective date of June 15, 2005. Entitlement to service connection arose on June 6, 2001. The Veteran first indicated to VA that he wished to be service-connected for sleep apnea in July 2006. However, because treatment records were received on June 15, 2005, that effective date was assigned. An earlier effective date is not warranted as the date of claim is the later of the date entitlement arose and the date of claim. The date of claim was determined to be June 15, 2005, based on the treatment records which were submitted at that time. No formal claim, informal claim, or other communication requesting service connection for sleep apnea was received by VA prior to June 15, 2005. Therefore, the effective date was correctly established as June 15, 2005. The appeal is denied. 3. Entitlement to an effective date prior to August 15, 2003, for the grant of TDIU. VA regulations allow for the assignment of TDIU when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(b). On a June 2005 TDIU application (VA Form 21-8940), the Veteran stated that he last worked full time in his job at the U.S. Postal Service on May 14, 2003. A July 2005 Request for Employment Information in Connection with Claim for Disability Benefits (VA Form 21-4192) completed by the Veteran’s employer indicated that he last worked on August 14, 2003. On a January 2007 TDIU application, the Veteran also stated that he last worked on August 14, 2003. In a November 2015 rating decision, an effective date of August 15, 2003, was established for TDIU. The Board finds that the Veteran is not entitled to an effective date prior to August 15, 2003, as the Veteran was working. He therefore was not “unable to secure or follow a substantially gainful occupation because of service-connected disabilities” and was not entitled to TDIU. The Board has considered the Veteran’s assertion on his June 2005 TDIU application that his last date of work was May 14, 2003. However, his employer has stated that his last date of work was August 14, 2003, and the Veteran has also indicated that that was his last day of work. Therefore, the Board finds that the later statement from the Veteran which is consistent with the statement from his employer is more probative of the date on which he was last able to work than the date on the June 2005 TDIU application. The Board has also considered the July 2005 Social Security Administration (SSA) decision which determined that the Veteran had “not engaged in substantial gainful activity since February 14, 2003.” However, that standard is not binding on VA and may differ from the standard for eligibility for TDIU. So, while the SSA determination is informative, it is not dispositive. As the Veteran was working until August 14, 2003, he was not unable to secure or follow a substantially gainful occupation because of service-connected disabilities until August 15, 2003. As TDIU has been established effective August 15, 2003, an earlier effective date is not warranted. The appeal is denied. Increased Initial Rating for Obstructive and Restrictive Pulmonary Disease with Sleep Apnea Disability evaluations are determined by comparing the Veteran’s current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. However, in cases protected by the provisions of Pub.L. 90-493, the graduated ratings of 50 and 30 percent for inactive tuberculosis will not be elevated. 38 C.F.R. § 4.96(a). Under 38 C.F.R. § 4.96(d), pulmonary function tests (PFT’s) are required to evaluate the conditions listed in diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845 except: (i) When the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less. If a maximum exercise capacity test is not of record, evaluate based on alternative criteria. (ii) When pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed. (iii) When there have been one or more episodes of acute respiratory failure. (iv) When outpatient oxygen therapy is required. If the DLCO (SB) (Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method) test is not of record, evaluate based on alternative criteria as long as the examiner states why the test would not be useful or valid in a case. When the PFT’s are not consistent with clinical findings, evaluate based on the PFT’s unless the examiner states why they are not a valid indication of respiratory functional impairment in a particular case. Post-bronchodilator studies are required when PFT’s are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. When evaluating based on PFT’s, use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre bronchodilator values for rating purposes. When there is a disparity between the results of different PFT's (FEV-1 (Forced Expiratory Volume in one second), FVC (Forced Vital Capacity), etc.), so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. If the FEV-1 and the FVC are both greater than 100 percent, do not assign a compensable evaluation based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96 (2017). Chronic obstructive pulmonary disease is rated according to diagnostic code 6604. A 60 percent rating is warranted for FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value, or; the ratio of FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6604 (2017). Sleep apnea is rated according to diagnostic code 6847. A noncompensable rating is warranted for sleep apnea that is asymptomatic but with documented sleep disorder breathing. A 30 percent rating is warranted for persistent day-time hypersomnolence. A 50 percent rating is warranted for sleep apnea requiring use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. A 100 rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale or for sleep apnea requiring a tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847 (2017). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran was granted service connection for sleep apnea in a September 2015 rating decision. The disorder was rated with his obstructive and restrictive pulmonary disease because of the prohibition on combining the two ratings. See 38 C.F.R. § 4.96. The RO determined that the predominant disability was the obstructive and restrictive pulmonary disease and, therefore, sleep apnea was combined with that disorder for rating purposes. The Veteran appealed his initial 60 percent rating for obstructive and restrictive pulmonary disease and the Board denied an increase in August 2010. The Veteran did not appeal and that decision is final. In this case, the Veteran is appealing his initial rating for sleep apnea, which was granted with an effective date of June 15, 2005. Therefore, the Board will consider the Veteran’s respiratory symptoms since that date to determine whether a higher rating is warranted under either diagnostic code 6604 or diagnostic code 6847. A December 2016 echocardiogram report indicates that the Veteran had pulmonary hypertension due to obstructive pulmonary disorder. Therefore, the Veteran is entitled to a 100 percent rating under diagnostic code 6604. As he cannot be separately rated for his pulmonary disease and his sleep apnea, the 100 percent rating warranted under diagnostic code 6604 is more beneficial to the Veteran than the rating he would receive under diagnostic code 6847. The 100 percent rating is warranted only since June 15, 2005, the effective date of the grant of service connection for sleep apnea, as this is the only period on appeal. The appeal is granted. REASONS FOR REMAND 1. The issue of entitlement to service connection for hypertension is remanded. 2. The issue of entitlement to service connection for erectile dysfunction is remanded. 3. The issue of entitlement to service connection for renal nephropathy is remanded. 4. The issue of entitlement to service connection for diabetes mellitus is remanded. 5. The issue of entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. 6. The issue of entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. 7. The issue of entitlement to service connection for muscle group XXI damage is remanded. 8. The issue of entitlement to service connection for a disability resulting from the retention of a metallic clip is remanded. 9. The issue of compensation under 38 U.S.C. § 1151 for 7th rib resection is remanded. 10. The issue of compensation under 38 U.S.C. § 1151 for an obstructive and restrictive lung disorder is remanded. 11. The issue of compensation under 38 U.S.C. § 1151 for disability resulting from the retention of a metallic clip is remanded. 12. The issue of compensation under 38 U.S.C. § 1151 for chronic kidney dysfunction is remanded. 13. The issue of SMC for loss of use of a creative organ is remanded. 14. The issue of an increased initial rating since June 6, 2001, for the Veteran’s service connected knee disorder is remanded. The matters are REMANDED for the following action: 1. Reasons for the remand: a. ATTEMPT TO OBTAIN STRS: The issues of service connection for hypertension, erectile dysfunction, renal nephropathy, diabetes mellitus, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, muscle group XXI damage, and for a disability resulting from retention of a metallic clip must be remanded because service treatment records (STRs) are not associated with the Veteran’s file. It appears that STRs were possibly associated with the file at some point but are no longer in the file. The only records in the file were submitted by the Veteran and are incomplete. Additionally, the only VA Forms 3101 that indicate a request for STRs were submitted by the Veteran in September and October 2016. These documents indicate copies of the STRs were mailed in August 2002 but no STRs other than those submitted by the Veteran are currently in the file. Remand is necessary to associate all STRs with the Veteran’s file. b. INEXTRICABLY INTERTWINED ISSUE: The Veteran’s claim for SMC due to loss of use of a creative organ is inextricably intertwined with the Veteran’s claim for service connection for erectile dysfunction. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Therefore, remand is necessary. c. UPDATED MEDICAL EXAMINATION: Remand of the issue of an increased initial rating for the Veteran’s left knee disorder is necessary because the Veteran was last afforded a VA examination in January 2011. An updated examination is necessary. d. OBTAIN CONSENT FORM FOR PAST VA SURGICAL PROCEDURE: The Veteran contends that he is entitled to compensation under 38 U.S.C. § 1151 for an obstructive and restrictive lung disorder, a disability resulting from the retention of a metallic clip, and for a 7th rib resection. These claimed disorders all stem from a January 1985 thoracotomy with excision of a mass. A consent form for the procedure has not been associated with the record. Therefore, remand is necessary. See 38 C.F.R. §§ 3.361(d), 17.32. e. FILE REVIEW TO OBTAIN ADDITIONAL MEDICAL OPINION: The Veteran also contends that he is entitled to compensation under 38 U.S.C. § 1151 for a chronic kidney infection due to VA medical treatment not complying with the standard of medical care. Remand is necessary to obtain a VA medical opinion. 2. Associate with the record complete STRs and any other documents missing from the file, including any records in a temporary folder. 3. Schedule the Veteran for a VA knee examination to obtain an opinion as to the current nature of his service connected left knee disorder. All indicated tests and studies should be accomplished and the findings reported in detail. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. 4. Obtain and associate with the Veteran’s file all consent to treat forms associated with his January 1985 thoracotomy with excision of a mass. Obtain a VA medical opinion (by file review) as to the cause of a chronic kidney disorder. IF NECESSARY, CONDUCT A CLINICAL EXAMINATION. All relevant medical records must be made available to the examiner for review of pertinent documents. The examination report should specifically state that such a review was conducted. The examiner must provide a comprehensive explanation for all opinions provided. The examiner should address the following: (a.) Whether the Veteran has an additional chronic kidney disability caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing hospital care, medical or surgical treatment, or examination. (b.) Whether the Veteran has an additional chronic kidney disability that was caused by an event that was not reasonably foreseeable. The examiner’s attention is drawn to the following: *December 2011 private medical opinion indicating that the Veteran’s kidney disease was caused by high creatinine levels resulting from hypertension and diabetes and stating that the Veteran should be provided a 24-hour urine test. *July 2012 informal claim where the Veteran wrote that he believed his kidney disease was a result of VA not properly treating his complaints over a 2-year period. *VA treatment records and laboratory test results indicating treatment for diabetes, hypertension, and kidney disease. VBMS Entries 7/27/2012, 3/29/2013, 4/23/2013, 4/24/2013, 1/6/2014, 8/25/15, 8/26/15, 9/18/2015, 12/29/2015, 5/18/2016, 4/19/2017. *July 2012 private medical opinion indicating that the Veteran’s kidney disease was caused by carelessness, negligence, and error in judgement by VA medical practitioners and that his kidney disease was not reasonably foreseeable. VBMS Entry 3/27/2013. *October 2012 VA treatment record indicating that the Veteran underwent a renal biopsy. VBMS Entry 3/29/2013. *December 2016 statement from the Veteran indicating his belief that he received inadequate care by VA. (Continued on the next page)   5. Readjudicate the issues on appeal. If any benefit sought on appeal remains denied, the Veteran should be provided a supplemental statement of the case (SSOC). An appropriate period should be allowed for response before the case is returned to the Board. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. E. Miller, Associate Counsel