Citation Nr: 18159033 Decision Date: 12/19/18 Archive Date: 12/18/18 DOCKET NO. 16-24 963 DATE: December 19, 2018 ORDER Entitlement to a compensable initial evaluation for bilateral hearing loss disability is denied. Entitlement to service connection for coronary artery disease (CAD) is denied. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a thoracolumbar spine disability is remanded. Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. At no time during the rating period on appeal has the Veteran’s bilateral hearing loss disability been more severe than Level I impairment. 2. The most probative evidence of record is against a finding that the Veteran’s coronary artery disease manifested to a compensable degree within one year of separation from service, or is otherwise related to, or aggravated by, active service. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for the Veteran’s bilateral hearing loss disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.85, Diagnostic Code 6100. 2. The criteria for service connection for coronary artery disease are not met. 38 U.S.C. §§ 1110, 1112, 1113, 5107(b); 38 C.F.R. §§ 3.102, 3.303(a)-(b), (d), 3.307, 3.309(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1993 to November 1997. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by the Muskogee, Oklahoma Regional Office (RO). Legal Criteria Rating Disabilities in general Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. Id. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. Id. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Service Connection Establishing service connection generally requires medical evidence or, in certain circumstances, lay evidence of the following: (1) A current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) nexus between the claimed in-service disease and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Service connection may also be awarded on a presumptive basis for certain chronic diseases, to include arteriosclerosis, listed in 38 C.F.R. § 3.309(a), that manifest to a degree of 10 percent within one year of service separation. Id. §§ 3.303(b), 3.307. Service connection may be awarded on the basis of continuity of symptomatology for those conditions listed in 38 C.F.R. § 3.309(a) if a claimant demonstrates (1) that a condition was noted during service; (2) evidence of post-service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); 38 C.F.R. § 3.303(b). In each case where service connection for any disability is being sought, due consideration shall be given to the places, types, and circumstances of such Veteran's service as shown by such Veteran's service record, the official history of each organization in which such Veteran served, such Veteran's medical records, and all pertinent medical and lay evidence. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Reference to the Veteran’s disabilities is presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence of record does not present findings concerning the Veteran’s disabilities that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision Entitlement to a compensable initial rating for bilateral hearing loss disability In a January 2015 rating decision, the Veteran was granted service connection for bilateral hearing loss disability and assigned a noncompensable rating based on January 2015 VA examination findings. The Veteran disagreed with the evaluation, and subsequently submitted a private October 2018 audio examination report in support of his claim. The Board finds, based on the evidence of record, that a compensable rating is not warranted for any period on appeal. Disability ratings for hearing loss are derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are performed. See Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Hearing loss disability evaluations range from noncompensable to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a pure tone audiometric test. The horizontal lines in Table VI (in 38 C.F.R. § 4.85) represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. The vertical columns in Table VI represent nine categories of decibel loss based on the pure tone audiometric test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the horizontal row appropriate for the percentage of discrimination and the vertical column appropriate to the pure tone decibel loss. The percentage evaluation is found from Table VII (in 38 C.F.R. § 4.85) by intersecting the horizontal row appropriate for the numeric designation for the ear having the better hearing acuity and the appropriate vertical column to the numeric designation level for the ear having the poorer hearing acuity. See 38 C.F.R. § 4.85 (e). On the authorized audiological evaluation in January 2015, puretone thresholds (air conduction), in decibels (dB), for the Veteran were as follows: HERTZ 1000 2000 3000 4000 RIGHT 30 30 35 30 LEFT 30 35 35 30 The Veteran’s average puretone threshold for the right ear was 31.25 dB. The Veteran’s average puretone threshold for the left ear was 33.75 dB. His speech recognition score was 100 percent for the right ear, and 96 percent for the left ear. Applying 38 C.F.R. § 4.85, Table VI to the audiometric examination findings and speech recognition scores, the Veteran’s right and left ear hearing loss are both Level 1 impairments. Applying the criteria from Table VI to Table VII, a noncompensable evaluation is derived. Because the Veteran’s air conduction thresholds were poorer than 15 dB, bone conduction testing was also performed, and the following results noted: HERTZ 1000 2000 3000 4000 RIGHT 30 30 30 30 LEFT 30 35 35 25 The puretone average (bone conduction) was 30 dB for the right ear, and 31.25 dB for the left ear. Applying 38 C.F.R. § 4.85, Table VI to the audiometric examination findings and speech recognition scores, the Veteran’s right and left ear hearing loss are both Level 1 impairments. Applying the criteria from Table VI to Table VII, a noncompensable evaluation is derived. The Board has considered the provisions of 38 C.F.R. § 4.86 and Table VIA but finds that they are not applicable based on the Veteran’s puretone thresholds. The Board has also considered the private October 2018 audiological evaluation. The Veteran’s puretone thresholds in decibels (dB) were as follows: HERTZ 1000 2000 3000 4000 RIGHT 25 35 35 30 LEFT 25 40 40 40 Based on the foregoing, the Board finds that a compensable rating is not warranted for any period on appeal. The Veteran’s right ear average is 31.25, and his left ear average is 36.25. The examination report reflects 100 percent speech recognition bilaterally; however, it also reflects that the W-22 test was used rather than the VA-required CNC Maryland test. Thus, the examination results are not adequate for VA rating purposes. Regardless, even assuming arguendo that they were adequate, they do not support a higher rating. Nor do they require VA to obtain another VA examination. This is so because, although 5 of the 8 data points showed increased values, most of these reflected only a 5 Hertz difference from the January 2015 VA examination. Although these increased values could indicate potential worsening of hearing acuity, given that they were so slight, and that the other 3 data points showed reduced values (suggesting an improvement of hearing acuity), the Board does not find that the evidence requires VA to schedule another VA audiology examination. Even using the private results, the Veteran still has a Level 1 impairment in each ear. The Board acknowledges the Veteran’s statements with regard to his hearing acuity, to include, that he is on the “verge of needing hearing aids”, and the handwritten notation on the private audiogram which appears to indicate that he would be offered a trial set. The Board does not dispute that the Veteran has some abnormal hearing acuity. However, in determining the actual degree of disability, the objective examinations are more probative of the degree of the Veteran’s impairment than lay statements and merely the need for hearing aids. Furthermore, the opinions and observations of the Veteran cannot meet the burden imposed by the rating criteria under 38 C.F.R. § 4.85, DC 6100 with respect to determining the severity of his service-connected bilateral hearing loss disability. See Moray v. Brown, 2 Vet. App. 211, 214 (1993); 38 C.F.R. § 3.159 (a)(1) and (2). In this Veteran’s situation, he has a hearing loss disability for VA purposes and has been in receipt of service connection for such since June 2013. However, his hearing loss disability does not rise to the level of severity which warrants financial compensation under the applicable rating criteria. In essence, although he has difficulty with hearing, his impairment is considered noncompensable under VA regulations. The rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment, as these are precisely the effects that VA’s audiometric tests are designed to measure. When “hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the scheduler rating criteria.” See Doucette v. Shulkin, No. 15-2818, 2017 U.S. App. Vet. In sum, the Board finds that an increased rating is not warranted. The Board has considered the doctrine of giving the benefit of the doubt to the appellant, under 38 U.S.C. § 5107, and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its application. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Entitlement to service connection for coronary artery disease (CAD) The Veteran contends that his CAD went undiagnosed in service and may be related to his alcoholism in service. The Veteran has not alleged symptoms of CAD in service, but rather, he contends that the severity of his disability after service is indicative that it was present in service. The Board finds, based on the evidence of record as a whole, that service connection is not warranted. The evidence, as discussed in further detail below, is against a finding of symptoms or manifestation in service or in the year after separation from service. The evidence is also against a finding that the disability is otherwise related to service. As noted above, the Veteran separated from service in November 1997. The earliest clinical evidence of CAD is not for almost a decade after separation. (The earliest clinical evidence of hypertension is not for several years after separation from service.) The Veteran’s in-service 1994 Report of Medical History for overseas screening reflects that he denied heart trouble, high or low blood pressure, shortness of breath, or pain or pressure in the chest. An August 1995 Medical Surveillance/Certification Exam report reflects that the Veteran denied heart disease, high blood pressure, a stroke, chest pain, angina, heart attack, heart palpitations, or shortness of breath. An August 1996 flight deck physical reflects that the Veteran denied irregular heartbeat, shortness of breath, or chest pain/pressure. The Veteran’s 1997 Report of Medical History for separation purposes reflects that he reported that he was currently in good health and not taking any medications. He denied shortness of breath, pain or pressure in the chest, heart trouble, and high or low blood pressure. His blood pressure was 134/86 with no clinical indication that this was hypertensive. A 1997 Report of Medical Assessment reflects that the Veteran reported that he was not taking any medication. All the medical evaluations of the heart were normal. The Veteran’s June 2002 for re-enlistment purposes (he did not re-enlist) reflects that he denied heart trouble, palpitation, pounding heart, or abnormal heart beat, denied high or low blood pressure, and reported that he was currently in good health. His blood pressure was 124/80. Post-service VA clinical records in 2002 and 2003 are against a finding of hypertension or CAD, and note that the Veteran had normal heart sounds, no gallop or extra sounds, and a regular heart. His blood pressure readings were not noted to be indicative of hypertension. An August 2005 VA clinical record reflects a history of elevated blood pressure and that the Veteran was to monitor it at home, and a February 2006 record reflects a diagnosis of hypertension but reflects no complaints of the cardiovascular system. The records reflect that the Veteran was a smoker and had been continually urged to quit. A June 2007 VA clinical record reflects that the Veteran has a history of smoking, hypertension, and dyslipidemia who was referred to cardiology after he presented with a two-month history of chest pain. He was found to need a coronary artery bypass graft. The Board notes that this is almost ten years after separation from service. The lapse of time between service separation and the earliest documentation of current disability is a factor for consideration in deciding a service connection claim. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Given the evidence of record, the preponderance of the evidence is against a finding that the Veteran’s heart disorder was incurred in service; or was manifested to a compensable degree within a year of service; or was manifested by continuous symptoms since service; or is otherwise related to service. The Veteran’s DD 214 reflects that he is in receipt of the Southwest Asia Service Medal. A January 2016 VA Gulf War General Medical Examination report reflects that the Veteran’s CAD has a clear and specific etiology and diagnosis. The clinician noted that research published in peer-reviewed medical journals has not established a causal relationship between CAD and exposure events experienced by service members in Southwest Asia. In sum, the most probative evidence of record is against a finding that service connection is warranted. The Board has considered the Veteran’s contention that his alcohol use may have contributed to his CAD. However, the Veteran has not been shown to have the experience, training, or education necessary to make an etiology opinion to the claimed disability. Although lay persons are competent to provide opinions on some medical issues, the Board finds that a lay person is not competent to provide a probative opinion as to the specific issues in this case in light of the education and training necessary to make a finding with regard to the complexities of cardiovascular system. The Board finds that such etiology findings fall outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Moreover, although the Veteran was noted to drink alcohol in service, the clinical records of evidence do not indicate that alcohol use in service was related to his hypertension and/or CAD diagnosed many years after separation. Regardless, section 8052 of Pub. L. No. 101-508, the Omnibus Budget Reconciliation Act of 1990, amended 38 U.S.C. 1110 and 1131 to prohibit payment of compensation for any disability resulting from the Veteran’s own abuse of alcohol or drugs. VAOPGCPREC 2-97. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that compensation could not be awarded pursuant to 38 U.S.C. § 1110 and 38 C.F.R. § 105(a) either for a primary alcohol abuse disability incurred during service or for any secondary disability that resulted from primary alcohol abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a thoracolumbar spine disability is remanded. The Board find that further development is needed with regard to private records, VA clinical records, and a VA opinion. Such development is necessary because the Veteran had a pre-service diagnosis of a back disability, in-service complaints of the back and neck within a week of entrance but not subsequently in service, and a post-service injury. The Veteran’s primary specialty in service was as a technician and he has reported being a “plane captain” aboard ship. Post-service, he worked in construction, and as a pneudraulics mechanic, and rides a motorcycle. A VA clinical record also reflects that the Veteran is a smoker and has been counseled on the negative impact of cigarette smoking on spine health. The Veteran contends that he has a cervical spine disability and a thoracolumbar spine disability due to carry hundreds of pounds of chains on his shoulders and neck in service. The Veteran completed a Report of Medical History for enlistment purposes on November 10, 1993 and denied recurrent back pain at that time. The November 10, 1993, Report of Medical Examination at enlistment noted that the Veteran had a normal spine on clinical evaluation. However, a recruit in-processing record from November 14, 1993 reflects that the Veteran related having been in a motor vehicle accident, “unrestrained driver, broadsided,” in August 1993, and that he had seen a private medical doctor and a chiropractor and treated with pain medication. An attempt should be made to obtain these private records. The Veteran related pain with flexion over the entire lumbar and low thoracic area. He was assessed with low back pain status post motor vehicle accident. The Veteran entered active duty three days later on November 17, 1993. A November 22, 1993, record noted “recruit screening examination and review of entrance medical examination and history conducted this date in compliance with Manual of the Medical Department, Article 15-26. All significant defects, if any, have been evaluated and have been determined to be non-disqualifying.” The space next to “Defects Noted:” was left blank. An STR from November 23, 1993 reflects that the Veteran reported mid-thoracic and left cervical pain for 1.5 weeks since he had stopped seeing a chiropractor. He again reported having been in an August 1993 motor vehicle accident. He was assessed with mechanical thoracic and cervical back strain, given limited duty for three days, exercises, and medication. There are no additional STRs reflecting complaints of the spine. A November 1994 Report of Medical History for overseas screening reflects that he denied recurrent back pain. An August 1995 Medical Surveillance/Certification reflects that he denied a back injury. The Veteran’s Report of Medical History for separation purposes in July 1997 reflects that he reported that he was in good health and that he denied recurrent back pain, and denied arthritis, rheumatism, bursitis, bone, joint, or other deformity. The July 1997 Report of Medical Examination at separation noted that the Veteran had a normal spine on clinical evaluation. A June 2001 VA radiology record reflects that the Veteran reported back pain for four years, and that he had an injury six months ago. The impression of the back was normal. The vertebral body heights and the intervertebral disc spaces were normally maintained. There was no evidence of spondylolysis or spondylolisthesis. A June 19, 2001 VA clinical record reflects that the Veteran reported that he had had low back pain for five years but that the pain got worse after he injured it the last summer when he fell and was bedridden for six weeks. A November 2001 VA radiology (MRI) report reflects that the Veteran had a back injury in the summer of 2000. The MRI reflects changes of degenerative disc disease at L4 and L5 with central protruding discs at L4 and L5 which indents the thecal sac. In June 2002, the Veteran completed another Report of Medical History for purposes of enlisting the Navy Reserve. At that time, he reported that he was in good health, and denied recurrent back pain or any back problem, and denied arthritis, rheumatism, bursitis, bone, joint, or other deformity. A January 2015 VA examination report reflects the opinion of the VA examiner that the Veteran reported that his back pain started in service when he had to run with heavy chains on his back, and has continued since then. With regard to the neck, the Veteran denied having any neck pain in service and stated that he started having shoulder pain and hand numbness approximately a year ago. An MRI performed at that time indicated narrowing of cervical spine foramina. The 2015 VA examiner opined that the Veteran’s thoracolumbar spine disability clearly and unmistakably existed prior to service and is less likely as not aggravated beyond its natural progression by mid-thoracic pain during service. As this opinion uses the incorrect standard for assessing whether the Veteran is entitled to the presumption of soundness, a supplemental opinion is needed. With regard to the cervical spine, the 2015 VA examiner found that the Veteran’s cervical spine disability was less likely as not aggravated beyond its natural progression by the Veteran’s in-service mid-thoracic pain, but did not address whether the Veteran’s cervical spine was as likely as not due to service, to include the Veteran’s duties. The Board finds that VA should attempt to obtain the Veteran’s post-service records from a 2000 or 2001 back injury which he has reported required him to have bedrest for six weeks. The Veteran has reported that in 2000, he went the emergency room for “severe and crippling” back pain; thus, those records may be useful to the Board in adjudicating his claim. He has also been noted to see a private non-VA spine specialist. Entitlement to service connection for sleep apnea The Veteran contends that he had sleep apnea which went undiagnosed in service. He contends that it was not known at that time that the excessive snoring or length between breaths was an issue other than normal snoring, and that only in recent years has it become known that this is a more serious medical condition requiring treatment. (The Board acknowledges that a lay person may not have heard of sleep apnea until recently; however, VA did recognize sleep apnea as a disability in the 1990s, when the Veteran was in service (e.g. effective October 7, 1996, the rating criteria for the respiratory system were revised, to include a specific diagnosis code for sleep apnea).) The Veteran denied frequent trouble sleeping in November 1994, June 1997, June 2002. The earliest clinical evidence of sleep disturbances is in 2010 when it was noted that the Veteran had insomnia. A September 2011 record reflects that the Veteran reported daytime sleepiness which just started two to three weeks earlier, and which the Veteran felt was due to his blood sugar levels dropping; it was noted that his citalopram (for depression) would be decreased. February 2015 records reflect that the Veteran reported that once he stopped using Amitriptyline he has not been drowsy. A February 2015 VA record reflects a prior medical history of OSA (obstructive sleep apnea). A March 2015 VA CPAP clinic progress note reflects that a consult was placed for a CPAP to be ordered and mailed to the Veteran. However, sleep study records are not associated with the claims file. The Board is unsure if any such records are private and/or VA records. The matter is REMANDED for the following action: 1. Please obtain any outstanding (updated) VA clinical records. 2. Ask the Veteran to complete a VA Form 21-4142 for all private treatment and examination which he has received for his back, neck, and sleep apnea (to include all sleep studies) from August 1993 to present, to include: (a.) Private physician records regarding treatment following an August 1993 motor vehicle accident; (b.) Private chiropractor records regarding treatment following an August 1993 motor vehicle accident; (c.) Private, including emergency room, records for his spine in 2000 and/or 2001 and when he has contended that he was on bedrest for his spine. Make two requests for the authorized records, unless it is clear after the first request that a second request would be futile. 3. Thereafter, obtain a supplemental clinical opinion with regard to the BACK as to the following: a. Is it at least as likely as not that the Veteran’s pre-existing back disability (as found in the January 2015 VA examination) increased in severity during service? b. If so, is it clear and unmistakable (obvious, manifest, undebatable) that the increase in severity during service of the Veteran’s pre-existing back disability (as found in the January 2015 VA examination) was due to the natural progress of the disease? b. If it is not clear and unmistakable that the worsening of the Veteran’s pre-existing back disability was due to the natural progress of the disease, is it as likely as not (50 percent or greater) that the Veteran has a current back disability is causally related to active service? The clinician should consider the pertinent evidence of record to include: a.) the November 10, 1993 Report of Medical Examination reflecting normal clinical back examination; b.) the November 14, 1993 recruit in-processing STR; c.) the November 23, 1993 STR; d.) the November 1994, August 1995, and July 1997 reports of medical history/assessment which reflect that the Veteran denied back complaints; e.) the June 2001 VA and November 2001 radiology records; f.) the Veteran’s report of a back injury in 2000 or 2001 requiring six weeks bedrest; g.) the Veteran’s in-service duties; h.) the Veteran’s post service duties in construction and as a mechanic; and i.) the January 2015 VA examination report. 4. With regard to the CERVICAL spine, obtain a supplemental clinical opinion as to the following: Is it as likely as not (50 percent or more) that the Veteran has a cervical spine disability causally related to active service? The clinician should consider the pertinent evidence of record to include: a.) the November 23, 1993 STR; b.) the December 2014 MRI of the cervical spine; c.) the January 2015 VA examination report; d.) the Veteran’s in-service duties; e.) the Veteran’s post service duties in construction and as a mechanic.   5. Please obtain an examination with a medical opinion which addresses whether the Veteran carries a diagnosis of sleep apnea, and if so, whether such disorder is at least as likely as not related to service, to include his complaints of excessive snoring and lengths between breaths in service. M. C. GRAHAM Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Wishard