Citation Nr: 18152002 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 16-49 176 DATE: November 20, 2018 ORDER Entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease (GERD) is denied. Entitlement to a rating in excess of 10 percent prior to October 21, 2016 and in excess of 40 percent thereafter for a lumbar spine disability is denied. Entitlement to a separate 10 percent rating for radiculopathy of the right lower extremity is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The Veteran’s GERD has been manifested by dysphagia, pyrosis, reflux, and sleep disturbance with no evidence of substernal or arm or shoulder pain, productive of considerable impairment of health. 2. Prior to October 21, 2016, the Veteran’s lumbar spine disability was productive of painful motion, but not productive of forward flexion of the thoracolumbar spine not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, incapacitating episodes of more than two weeks in a 12-month period, or the functional equivalent of such manifestations. 3. From October 21, 2016, the Veteran’s lumbar spine disability has been manifested by painful limited motion of the thoracolumbar spine, but no spinal ankylosis or incapacitating episodes due to invertebral disc syndrome (IVDS) requiring bedrest and treatment prescribed by a physician has been shown. 4. The Veteran’s right lower extremity radiculopathy has been mild and wholly sensory in nature. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent GERD have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, Diagnostic Code 7346. 2. Prior to October 21, 2016, the criteria for entitlement to a rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes 5235-5243. 3. From October 21, 2016, the criteria for entitlement to a rating in excess of 40 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.71a, Diagnostic Codes 5235-5243. 4. The criteria for entitlement to a separate 10 percent rating, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from May 1979 to March 2000. During the course of the appeal, the Veteran’s rating for a lumbar spine disability was increased from 10 percent to 40 percent effective October 21, 2016. However, as that increase does not represent a full grant of benefits sought on appeal, the claim remains before the Board. AB v. Brown, 6 Vet. App. 35; 38 U.S.C. § 7104; 38 C.F.R. § 20.101. Increased Ratings Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. See 38 U.S.C. § 1155; 38 C.F.R. Part 4. To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. See Schafrath v. Derwinski, 1 Vet. App. 589, 594 (2002). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. See Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App 119 (1999). The United States Court of Appeals for Veterans Claims (Court) has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. 1. Entitlement to a rating in excess of 10 percent for GERD In this case, the Veteran claims that the severity of his service-connected GERD is greater than is reflected in his current 10 percent disability rating. As his increased rating claim was received in September 2013, the Board must consider the evidence from September 2012 to the present. Under Diagnostic Code 7346, hiatal hernia, a 10 percent rating is assigned when the veteran experiences two or more of the symptoms for a 30 percent evaluation with less severity. A 30 percent rating is assigned when the veteran experiences persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is warranted where there are symptoms of pain, vomiting, material weight loss and hematemesis (vomiting blood) or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114. VA treatment records indicate that the Veteran has an ongoing diagnosis of GERD and takes medication to control this condition. There are no notations of arm or shoulder pain attributed to the Veteran’s GERD or otherwise. Nor are there indications of chest pain. The Veteran underwent a VA examination in March 2014. There, he reported having frequent heartburn and belching for the past twenty years. He stated that since his diagnosis he took daily medication and the symptoms had markedly improved; however, he did experience some breakthrough symptoms on an average of ten times a year. No symptoms including epigastric distress, dysphasia, pyrosis, reflux, regurgitation, substernal arm or shoulder pain, sleep disturbance, anemia, weight loss, nausea, vomiting, hematemesis, or melena were noted. The Veteran did not have esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. The examiner did not find any functional impact on the Veteran’s ability to work. He underwent a second VA examination in November 2016. There, he reported reflux, heartburn, and burping. He stated that he had the symptoms day and night, that increased when he laid down. The Veteran reported continuous use of over-the-counter medications to control the condition. The examiner noted that the following symptoms: dysphagia, pyrosis, reflux, and sleep disturbances that recurred four or more times a year, with the average duration being ten days or more. He indicated that the Veteran did not have esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. No other pertinent physical findings, complications, conditions, signs or symptoms related to the diagnosis were found. The examiner did not find any functional impact on the Veteran’s ability to work. Based on the foregoing the Board finds that no more than a 10 percent rating is warranted at any time during the appellate period. The Veteran experienced dysphagia, pyrosis, reflux, and sleep disturbances; however, they occur during a limited period throughout the year, and are controlled by medication. There is no evidence of sufficient severity of symptoms of GERD to warrant a 30 percent rating. There is no evidence of substernal or arm or shoulder pain related to his GERD in any of the Veteran’s medical treatment records. It also must be noted that considerable impairment of health is not demonstrated by the evidence of record; notably, none of the VA examiners found the Veteran’s condition had a functional impact on his ability to work. Further, he does not meet the criteria for a 60 percent rating, as there is no evidence of material weight loss, hematemesis, melena anemia or severe impairment of health. The preponderance of the evidence is against the claim for a rating in excess of 10 percent. The doctrine of reasonable doubt is not for application. 38 U.S.C. § 5107 (b); see also, e.g., Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 10 percent prior to October 21, 2016 and in excess of 40 percent thereafter for a lumbar spine disability The Veteran sought a rating in excess of 10 percent for a lumbar spine disability in September 2013. During the course of the appeal, the Veteran’s rating for his lumbar spine disability was increased to 40 percent, effective October 21, 2016. As the Veteran’s increased rating claim was received in September 2013, the Board must consider the evidence from September 2012 to the present to determine the appropriate ratings throughout the appellate period. The Veteran’s lumbar spine disability is currently rated under Diagnostic Code 5237 (lumbar strain), based on limitation of motion as applied under the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71 (a). Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area of the spine affected by the residuals of injury or disease, a 10 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or an abnormal kyphosis. A 40 percent evaluation is warranted for disability of the thoracolumbar spine when there is forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine is evaluated as 50 percent disabling, and unfavorable ankylosis of the entire spine is evaluated as 100 percent disabling. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5237. Note (1) permits the evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Each range of motion measurement should be rounded to the nearest five degrees. See Plate V, 38 C.F.R. § 4.71 and 38 C.F.R. § 4.71a, Notes (2) and (4). The Veteran complained of lumbar spine pain that was radiating down his left leg and was progressively worsening in September 2013. A lumbar spine MRI revealed normal lordosis, no listhesis, and no compression fracture. Endplate marginal osteophytes at L4 and L5 were unchanged. Lumbar disc spaces were preserved. Mild sclerosis was seen at the SI joints. In February 2014, the Veteran went to a VA hospital again complaining of lower back pain with shooting pain down his left leg that this time had resulted in a fall. At the resulting examination, the examiner noted that the Veteran walked with a cane. He also observed that the Veteran had no tenderness to palpation in his low back, but did have mild pain with palpation. The Veteran was provided a VA examination in March 2013. There, he complained of sharp, stabbing, burning pain in his left lower back that had begun during service and had been reoccurring since 2005. He stated that he experienced flare-ups that consisted of more pain and stiffness. Range of motion testing was performed. Forward flexion was to 80 degrees with no objective evidence of painful motion. Extension was to 20 degrees with objective evidence of painful motion at 20 degrees. Right lateral flexion was to 25 degrees with no objective evidence of painful motion. Left lateral flexion was to 25 degrees with no objective evidence of painful motion. Right lateral rotation was to 25 degrees with no objective evidence of painful motion. Left lateral rotation was to 25 degrees with no objective evidence of painful motion. The Veteran could perform repetitive-use testing with three repetitions. Range of motion testing after repetitive use revealed the same values. While the Veteran did not have additional limitation in range of motion after repetitive-use testing, the examiner did note that there was functional loss and/or functional impairment of the Veteran’s back that resulted in less movement than normal, weakened movement, and stinging pain on movement. The Veteran also displayed guarding and/or muscle spasm; however, they did not result in an abnormal gait or spinal contour. Muscle strength testing was performed. Hip flexion was normal. Right knee extension was normal. Left knee extension displayed active movement against some resistance. Right ankle plantar flexion was normal. Left ankle plantar flexion displayed active movement against some resistance. Right ankle dorsiflexion was normal. Left ankle dorsiflexion displayed active movement against some resistance. Great toe extension of the right foot was normal. Great toe extension of the left foot displayed active movement against some resistance. Muscle atrophy was present in the Veteran’s calf circumference (calf not specified). Reflex examination was normal. Straight leg raising tests were negative. Radiculopathy was found in the Veteran’s left lower extremity. No other neurologic abnormalities, such as bowel or bladder problems/pathologic reflexes were observed. The Veteran did not have invertebral disc syndrome (IVDS) or incapacitating episodes. The examiner noted that the Veteran regularly used a cane due to left lower extremity weakness from radiculopathy. No surgical scars were observed. Imaging studies were performed and did not reveal arthritis or a vertebral fracture. Regarding the functional impact of the Veteran’s lumbar spine disability, the examiner wrote that the Veteran was rarely able to lift more than 40 pounds and frequently unable to lift more than 10 pounds, and was unable to sit or stand comfortably for more than 30 minutes at a time during an eight-hour work day. He noted that the Veteran did not complain of pain while walking, thus there were no walking limitations. The Veteran was diagnosed with lumbosacral strain and left lower extremity radiculopathy. In the Veteran’s notice of disagreement, he stated that he had received Tramadol injections for muscle spasms. He noted the results of his September 2013 MRI which showed mild sclerosis of the SI joints. He also noted that he had been issued an electric heating pad and a cane to assist in standing and a back brace. VA treatment records confirm the Veteran’s statements. At an October 2013 surgical evaluation for an unrelated condition, the Veteran’s back was noted to be within normal limits, although no range of motion values were listed. The Veteran was provided a second VA examination in October 2016. The Veteran reported constant pain in his lower back that felt like numbness, tingling, and a burning sensation. He stated that at times it radiated down the left side of his body down to his toes. The numbness in his left leg resulted in falls. He also said that he had stiffness in the morning when he woke up. He reported pain with forward bending and that his back would give out at times. When asked about treatment, he reported using a TENS unit, physical therapy, steroid injections, and pain medication. He said that he experienced flare-ups at which time his back stiffened and the pain worsened. Regarding functional loss, he stated that he could not sit for too long or bend forward. Sitting was problematic because it caused his left leg to become numb. Range of motion testing was performed. Forward flexion was to 30 degrees. Extension was to 20 degrees. Right lateral flexion was to 30 degrees. Left lateral flexion was to 30 degrees. Right lateral rotation was to 30 degrees. Left lateral rotation was to 30 degrees. The abnormal range of motion resulted in the Veteran’s inability to bend forward or backwards. Pain was noted on forward flexion and extension. Objective evidence of moderate localized tenderness or pain on palpation of the joint was noted in the lumbar region, L4/L5. The localized tenderness did not result in abnormal gait or abnormal spinal contour. There was evidence of pain with weightbearing. Repetitive-use testing was performed. There was no additional loss of function or range of motion after three repetitions. The Veteran did not display guarding or muscle spasms. Muscle strength testing was performed. The Veteran’s right side was normal. All testing on the Veteran’s left side revealing active movement against some resistance. No muscle atrophy was present. The Veteran’s reflex examination of his knees and ankles showed hypoactivity. Sensory examinations were normal. The Veteran’s straight leg raising test was negative. Radiculopathy was observed in the Veteran’s left lower extremity. There was no ankylosis or neurological abnormalities. The Veteran did not have IVDS or incapacitating episodes. The regular use of a brace and the constant use of a cane was noted. The examiner observed that, with ambulation, the Veteran was obviously in pain and was unable to put complete weight on his left leg. Regarding the functional impact of the Veteran’s disability, the examiner noted that any occupational tasks requiring prolonging sitting, walking, twisting, or lifting heavy objects would impact his ability to work. The Veteran’s diagnoses of lumbosacral strain with decreased flexion and extension and left lower extremity radiculopathy were confirmed. Additional VA treatment records show that the Veteran has continued to seek treatment for chronic back pain, although none of these records reflect additional range of motion testing. They also indicate that the Veteran experienced radicular symptoms in his right leg extending past his knee and a mild sensory deficit along the lateral aspect of his right calf and great toe. Considering the pertinent evidence in light of the applicable rating criteria and considerations delineated above, the Board finds that a rating in excess of 10 percent prior to October 21, 2016 is not warranted. A higher rating is warranted for evidence of forward flexion of the thoracolumbar spine not greater than 60 degrees, combined range of motion of the thoracolumbar spine not greater than 120 degrees, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, incapacitating episodes of at least two weeks but less than four weeks in a 12-month period, or the functional equivalent of such manifestations. The Board finds no credible evidence of such manifestations. The above evidence reflects that prior to October 21, 2016 the Veteran’s lumbar spine disability was manifested by pain, muscle spasm, stiffness, and painful, limited motion of the lumbar thoracolumbar spine that resulted in radiculopathy of the left lower extremity. Range of motion testing revealed that, at worst, the Veteran’s forward flexion was limited to 80 degrees. Additionally, the Veteran’s combined range of motion testing was greater than 120 degrees. While the Veteran displayed muscle spasms, they were not noted to be of the severity to result in an abnormal gait or abnormal spinal contour. Moreover, the Veteran was not diagnosed with IVDS, nor did he report any incapacitating episodes or physician prescribed bed rest. Hence, there is no adequate evidence of any “incapacitating episodes” of IVDS as defined by VA and a higher rating under the Formula for Rating IVDS based on incapacitating episodes of IVDS is not warranted. 38 C.F.R. § 4.71a, DC 5243, Note (1). The record does reflect any bowel or bladder dysfunction attributable to the Veteran’s lumbar spine disability during this time. However, it does reflect radiculopathy of the lower left extremity. This manifestation of the Veteran’s lumbar spine disability has been separately service-connected and, as such, need not be discussed further herein. The Veteran’s disability rating for his lumbar spine disability was increased to 40 percent effective October 21, 2016, the date of the VA examination that revealed forward flexion of 30 degrees or less. Concerning the period from October 21, 2016 to the present, the Board finds that a rating in excess of 40 percent is not warranted. The above evidence for that period reflects that the Veteran’s lumbar spine disability has continued to be manifested by stiffness and painful, limited motion. The 40 percent rating currently assigned is the maximum schedular rating for limitation of motion of the thoracolumbar spine under the General Rating Formula. Notably, a rating in excess of 40 percent for the thoracolumbar spine under the General Rating Formula requires a finding of ankylosis. Ankylosis is defined in general as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Colayong v. West, 12 Vet. App. 524 (1999) (citing Dorland’s Illustrated Medical Dictionary (28TH Ed. 1994) at 86). The rating criteria provide that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). In this case, there is no evidence of the Veteran’s thoracolumbar spine being fixed in position or ankylosed at any point during the appeal, and he has retained the ability to move his spine (albeit a limited ability). Also, the absence of ankylosis was specifically noted during the most recent VA back examination in October 2016 and its presence has not been asserted by the Veteran. The Board also considered whether a higher disability evaluation is warranted on the basis of functional loss due to fatigability, incoordination, pain on movement, pain on weight-bearing, flare-ups, and weakness. 38 C.F.R. §§ 4. 40, 4.45, 4.59; see Sharp v. Shinseki, 29 Vet. App. 26 (2017); Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 206-07 (1995). In this case, the Veteran has complained that he is limited in performing activities of daily living due to pain and stiffness. However, while the Veteran experiences the aforementioned symptoms, overall, it does not appear that these symptoms result in additional and significant functional loss, and his complaints are adequately contemplated in the ratings he currently receives. See Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011) (pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance). The Board notes that a remand for further compliance with the recent guidance provided in Correia and Sharp is not in order and would not result in higher ratings for the Veteran’s back disability as a rating in excess of 40 percent for the period from October 21, 2016 would not be predicated on limitation of motion but rather on unfavorable ankylosis, and further, a current examination would not provide additional findings relevant to the period prior to October 2016. Therefore, the rating considerations pertaining to functional loss due to pain and other factors (as delineated in 38 C.F.R. §§ 4.40 and 4.45, and DeLuca), provide no basis for any higher rating, and a rating in excess of 40 percent under the General Rating Formula is not warranted at any time pertinent to the current claim. Moreover, the Veteran has not been diagnosed with IVDS, nor has he reported any incapacitating episodes or physician prescribed bed rest during this portion of the appeal period. Hence, there is no adequate evidence of any “incapacitating episodes” of IVDS as defined by VA and a higher rating under the Formula for Rating IVDS based on incapacitating episodes of IVDS is again unwarranted. 38 C.F.R. § 4.71a, DC 5243, Note (1). While the record again does not reflect any bowel or bladder dysfunction attributable to the Veteran’s lumbar spine disability, the Board finds that it does reflect right lower extremity radiculopathy. Although the Veteran has not been diagnosed with this disability at any VA examination, the Veteran has recently been consistently reporting symptomatology reflective of this disability and it has been observed by VA physicians in VA treatment records. In light of this evidence, which includes objective findings of radicular symptoms, the Veteran is entitled to a separate rating under 38 C.F.R. § 4.124a, Diagnostic Code 8520, for associated right lower extremity radiculopathy. Under Code 8520, paralysis of the sciatic nerve is rated as follows: a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis resulting in the foot dangling and dropping, no possible active movement of muscles below the knee, and weakened or (very rarely) lost flexion of the knee. 38 C.F.R. § 4.124a. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild or, at most, the moderate degree. The ratings for peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. The Board finds that the evidence supports a 10 percent rating, but no higher, for the Veteran’s radiculopathy of the right lower extremity, as VA treatment records described the Veteran’s impairment as a mild sensory deficit. A 20 percent rating is not warranted as there is no evidence of moderate symptomatology in the Veteran’s right lower extremity. As noted, generally, in rating peripheral nerve impairment, when the involvement is wholly sensory, the rating assigned should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, note following Diagnostic Code 8421. (Continued on the next page)   In conclusion, the Board finds that the evidence does not warrant a rating in excess of 10 percent for the Veteran’s lumbar spine disability prior to October 21, 2016, or in excess of 40 percent thereafter. 38 C.F.R. § 4.71a, Code 5237. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is not for application. 38 U.S.C. § 5107. The Board further finds that a separate rating of 10 percent, but no higher, is warranted for radiculopathy of the right lower extremity. 38 C.F.R. § 4.71a, Code 5237, Note (1); 38 C.F.R. § 4.124a, Code 8520. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Bush