Citation Nr: 18159305 Decision Date: 12/18/18 Archive Date: 12/18/18 DOCKET NO. 08-09 837 DATE: December 18, 2018 ORDER Entitlement to service connection for a neck condition is denied. Entitlement to service connection for bilateral sensorineural hearing loss (SNHL) is denied. Entitlement to service connection for tinnitus is granted. FINDINGS OF FACT 1. The preponderance of the competent medical evidence is against a finding that the Veteran has a neck condition that is attributable to a disease or injury in service, to specifically include the May 1977 motor vehicle accident. 2. The competent medical evidence does not demonstrate that the Veteran’s bilateral SNHL was incurred in service or is otherwise attributable to his service. 3. In giving the benefit of the doubt to the Veteran, the Board finds that he has tinnitus which is at least as likely as not attributable to in-service noise exposure. CONCLUSIONS OF LAW 1. Service connection for a neck condition is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. § 3.303. 2. Service connection for bilateral SNHL is not warranted. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385. 3. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 1111, 1112, 1153, 1154, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1976 to May 1981. These matters plus the issue of entitlement to service connection for a right shoulder condition were last before the Board in September 2017, whereupon all four issues were remanded to the Regional Office (RO) for further development of the record. In a September 2018 rating decision, the RO granted service connection for a right shoulder condition, constituting a full grant of benefits on appeal; as such, that issue is appropriately not before the Board. The RO denied the remaining three issues in a September 2018 supplemental statement of the case, and returned those three issues to the Board for its adjudication. The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2012; a copy of the transcript of the hearing is of record. Service Connection 1. Entitlement to service connection for a neck condition The Veteran contends that he developed a cervical spine condition following an in-service motor vehicle accident that has continued to the present. The question for the Board is whether the Veteran has a neck condition that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran is currently diagnosed with degenerative arthritis of the cervical spine, the preponderance of the evidence weighs against finding that the Veteran’s neck condition is related to an in-service injury, event, or disease, to include the in-service motor vehicle accident. 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), (d). A review of service medical records indicates that the Veteran was involved in a motor vehicle accident in service in May 1977. He complained of pain in the back of his neck and was prescribed pain medication. An X-ray examination did not reveal any fracture. A subsequent treatment record from two weeks later shows that the Veteran was still experiencing neck pain and also began experiencing muscle spasms in his neck. Treatment involved a cervical collar as well as hot wraps around the neck. Thereafter, records dated in June 1977 and in August 1977 reflect that the Veteran continued to complain of chronic neck pain, with treatment to include a cervical collar and hot wraps. A September 1977 orthopedic consultation report shows that the Veteran complained mainly of right shoulder pain and cervical pain. No neck condition diagnosis was set forth, however, and the prescribed treatment was a hot pack for the neck and upper back. No additional service medical records show that the Veteran received any additional treatment for a neck condition in service following his immediate treatment after the May 1977 motor vehicle accident. Specifically, no neck or spinal abnormalities were noted on the April 1981 discharge examination. Following service, no medical records are available which document any treatment for a neck condition prior to a November 2003 workplace injury in which the Veteran struck his head on a concrete ceiling while standing on a ladder. Following the injury, he experienced headaches and cervical pain. Radiological examinations dated in April 2004 showed diffuse cervical spondylosis with cervical disc herniation. The veteran underwent physical therapy, with no relief of his pain symptoms. The Veteran has submitted treatment records from a Dr. E.V.. beginning in February 2004 and continuing throughout that year. These records reflect that the Veteran continued to seek treatment for neck pain following the November 2003 workplace injury without experiencing any relief of his symptoms. Specifically, in a March 2004 letter, Dr. E.V. noted that the Veteran had no prior history of having any problems with his neck prior to the November 2003 workplace injury. In a June 2004 neurological evaluation, a Dr. R.A. stated that the Veteran’s November 2003 injury “could easily explain” the cervical symptoms he was seeking treatment for. In a June 2005 medical record review, a Dr. C. C. opined that the effects of the workplace injury had resolved by April 2004 and that the Veteran had extensive preexisting ordinary disease of life degenerative disc disease independent of the workplace injury. No rationale was offered for this statement, although Dr. C.C. did refer to diagnostic testing generally. Post-service VA medical records do not reflect any complaints of neck pain when the Veteran began treatment with VA in 2003, although the Veteran did have documented sciatica according to an July 2003 outpatient report. In fact, the first documentation of neck pain in the available VA medical records is in a November 2009 outpatient record. Subsequent VA treatment records reflect continued treatment for pain and muscle spasms throughout the cervical spine. The neck condition was first evaluated by VA in a joint examination dated in June 2011. The Veteran reported that he was involved in a motor vehicle accident in service that resulted in a whiplash injury to his neck, and that he had been experiencing chronic neck pain ever since. After a physical examination and a review of the claims file, the examiner set forth a diagnosis of degenerative disc disease with cervical spine muscle spasm. As for the etiology of the condition, the examiner found that it was less likely than not that the neck condition was incurred in service or otherwise attributable to service. In support thereof, the examiner noted that the Veteran was able to return to duty within a few weeks after the in-service motor vehicle accident, which would not be possible if the Veteran experienced the type of degenerative neck condition that was diagnosed following the November 2003 injury. The examiner found it more likely instead that the neck condition was due to the November 2003 workplace injury. During the December 2012 hearing, the Veteran reported that he began experiencing neck pain and loss of mobility following the in-service motor vehicle accident. According to the Veteran, he continued to seek treatment for these symptoms throughout service. After service, the Veteran stated that his symptoms did not abate, but he did not seek treatment from his private physician as he was able to self-medicate to alleviate his symptoms. He further stated that a physician had told him that the November 2003 workplace injury aggravated a preexisting spinal condition rather than caused an original condition to manifest. The Veteran was afforded a VA cervical spine examination in March 2016. He reported that he suffered a workplace injury to his cervical spine in November 2003, which required extensive treatment and eventually resulted in his having to leave his employment in the construction field in 2005. After a review of the claims file, to include an extensive detailing of the records pertaining to the Veteran’s treatment following the November 2003 injury, the examiner opined that it was less likely than not that the neck condition was incurred in or otherwise due to service. In support thereof, the examiner acknowledged the in-service motor vehicle accident and the immediate treatment the Veteran received for complaints of neck pain; however, the examiner highlighted that there was no documentation that the Veteran received any additional treatment for symptoms of a neck condition for the over three years that he continued to remain in service. Specifically, the examiner noted that no neck abnormalities were recorded on the May 1981 separation examination. Furthermore, the examiner detailed that the Veteran worked for many years following his discharge from service in the construction field without any documented treatment for a neck condition, until of course his 2003 workplace injury. Pursuant to a January 2017 Board remand, the March 2016 examiner was asked in January 2017 to review Dr. C.C.’s medical record review dated in June 2005 regarding the preexisting nature of degenerative disc disease prior to the November 2003 workplace injury. The March 2016 examiner could not locate Dr. C.C.’s report, and, as such, neglected to offer a new opinion. Accordingly, the Board in its September 2017 remand requested that a new examiner review the claims file, to specifically include Dr. C.C.’s June 2005 report, and set forth a new etiology opinion. After an March 2018 examination, a new examiner opined that it was less likely than not that the neck condition was incurred in or otherwise attributable to service. In support thereof, the examiner acknowledged Dr. C.C.’s June 2005 report, but found no evidence of record to substantiate the conclusion that the Veteran had a cervical spine condition that preexisted the November 2003 workplace injury. The examiner further highlighted the lack of a noted neck condition diagnosis on the April 1981 separation examination. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for a neck condition. It is acknowledged that the Veteran was involved in a motor vehicle accident in service in May 1977 and that he sought treatment for symptoms of neck pain and spasms following this accident. However, there is no further documented treatment for these symptoms after September 1977, which means that the Veteran continued in his duties in service for more than three additional years before his discharge without ever seeking further treatment for symptoms of a neck condition. Furthermore, no neck condition was noted on the April 1981 discharge examination. This evidence suggests that although the Veteran did experience some symptoms of a neck injury following the motor vehicle accident, those symptoms were not the manifestation of a chronic neck disability but were rather transient in nature. The Board further acknowledges that the Veteran is competent to report having experienced symptoms of neck pain and spasms in service and ever since service; however, absent training and credentials, he is not competent to provide a diagnosis in this case or to determine that these symptoms were manifestations of the cervical spine degenerative disc disease for which he is now receiving treatment. The determination of whether lay-observable symptoms constitute a diagnosis, or the date of the onset of that diagnosis, is a complex medical question that is the province of trained and credentialed medical providers. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The Veteran’s contentions must be considered in light of the VA examiner opinions of record, both of whom found that it was less likely than not that the Veteran’s neck condition was related to service, to include the in-service motor vehicle accident. Both examiners noted that they reviewed the claims file and supported their conclusions with a thorough rationale that took into consideration the Veteran’s medical history, both in-service and after his discharge. Moreover, both examiners concluded that it was far more likely that the Veteran’s neck condition was attributable to the November 2003 workplace injury, noting that there were no documented complaints of neck symptomatology following service prior to that injury. As such, the Board finds that both opinions are highly probative of the determination as to the likely etiology of the neck condition. Sklar v. Brown, 5 Vet. App. 140 (1993). The Board is cognizant that a Dr. C.C. stated in a June 2005 medical record that the Veteran appeared to have degenerative disc disease that preexisted the November 2003 injury as identified in diagnostic studies. However, Dr. C.C. did not refer to any specific diagnostic studies in providing this statement, and the Board cannot identify any records which suggest that there was a diagnosed cervical spine condition prior to the November 2003 injury. It is noted that VA treatment records document a diagnosis of sciatica; however, there is no suggestion from these records or any other post-service medical records that the Veteran was experiencing symptoms of a neck condition or that he had been diagnosed with a neck condition prior to the November 2003 injury. In reviewing Dr. C.C.’s statement, the Board finds that it lacks specificity with regards to the part of the spine affected by the referred-to degenerative disc disease, and so this may account for the apparent confusion addressed in prior Board decisions as to the possibility of a preexisting neck condition. In any event, as noted by the March 2018 VA examiner, there is no objective medical evidence to support the existence of a cervical spine condition that preexisted the November 2003 injury, as potentially suggested by Dr. C.C. in the June 2005 report. As such, the Board ascribes little probative value to the statement inasmuch as it alludes to a possible nexus between the Veteran’s neck condition and an in-service event or injury. In summation, the conclusions of the March 2016 and March 2018 VA examiners that it was far more likely that the Veteran’s neck condition was attributable to the November 2003 workplace injury are more probative than the Veteran’s contention that the neck condition was incurred in service as a result of the May 1977 motor vehicle accident. As noted by both VA examiners, the Veteran did not receive continuing care for symptoms of a neck condition after the symptoms that initially manifested following the motor vehicle accident apparently resolved at the end of 1977. Ultimately, the Veteran has submitted no objective medical evidence which suggests that he continued to experience symptoms of a neck condition following the resolution of those symptoms that arose in 1977, at least until he suffered a workplace injury to his cervical spine in November 2003. Indeed, private and VA treatment records reflect that, prior to the November 2003 injury, the Veteran either specifically denied experiencing any symptoms of a neck condition or did not report any while receiving treatment for sciatica. Therefore, in light of the highly probative March 2016 and March 2018 VA examiner opinions, the preponderance of the evidence is against a determination that the currently diagnosed neck condition is attributable to service. Accordingly, the Board finds that no medical nexus exists between the Veteran’s diagnosed cervical spine degenerative disc disease and an in-service injury, event or disease, to specifically include the May 1977 motor vehicle accident. The preponderance of the evidence is against the claim, and it must be denied. 38 U.S.C. § 5107(b). 2. Entitlement to service connection for bilateral SNHL The Veteran contends that he developed bilateral SNHL in service as due to exposure to hazardous levels of noise. In the alternative, he contends that his post-service development of bilateral SNHL is nevertheless attributable to his exposure to hazardous levels of noise in service or is due to a motor vehicle accident he was involved in while in service. Certain chronic diseases will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Included within the purview of chronic diseases is hearing loss, as it is considered an organic disease of the nervous system. 38 C.F.R. § 3.309. The question for the Board is whether the Veteran has bilateral SNHL that manifested to a compensable degree in service or within the applicable presumptive period, or whether continuity of symptomatology has existed since service. The Board concludes that, while the Veteran currently has bilateral SNHL for VA compensation purposes, it was not chronic in service or manifest to a compensable degree in service or within a presumptive period, and continuity of symptomatology is not established. At the outset, it is noted that, pursuant to VA regulation, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory threshold for at least three of the frequencies 500, 1000, 2000, 3000, 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran’s service personnel records reflect that his military occupational specialty (MOS) during his career was an administrative clerk; however, a copy of his DD Form 214 shows that he was decorated as a rifle and pistol marksman, which strongly suggests that he was exposed to loud arms fire while in service. Puretone thresholds in decibels on an examination administered upon the Veteran’s application to enter service that was dated in January 1974 were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 5 0 10 15 LEFT 15 10 5 25 30 On an April 1981 separation examination puretone thresholds in decibels were the following: HERTZ 500 1000 2000 3000 4000 RIGHT 5 5 5 15 25 LEFT 5 5 5 25 15 The Veteran’s service treatment records are absent any further audiometric evaluations. Specifically, a February 1978 outpatient record indicated no hearing loss, and a March 1979 outpatient record showed treatment for otitis media with no noted hearing loss. He did not seek treatment for or receive a diagnosis of hearing loss in either ear at any point during service. Therefore, on the basis of the service medical records alone, the Veteran did not meet the criteria for a finding of hearing loss under VA standards for hearing loss disability at any point during service. 38 C.F.R. § 3.385. Post-service, VA medical records reflect that the Veteran was first acknowledged to have hearing loss bilaterally in a September 2011 general medical examination. Subsequent VA medical records do not reflect that the Veteran had received any specific treatment for hearing loss in either ear, although a hearing deficit was noted. During the December 2012 hearing, the Veteran stated that his hearing was worse after the in-service motor vehicle accident and that it had progressively worsened since the accident and following his discharge from service. The Veteran was afforded a VA audiology examination in March 2016 to determine whether he had hearing loss for VA purposes in either ear and, if so, to set forth a likely etiology for the hearing loss. Puretone thresholds on an audiometric examination were: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 50 55 65 LEFT 25 20 40 75 65 Speech discrimination scores using the Maryland CNC word list were 100 percent in the right ear and 96 percent in the left ear. The examiner diagnosed the Veteran with normal to severe SNHL bilaterally. The examiner then opined that the SNHL bilaterally was less likely than not caused by or the result of in-service noise exposure. In support thereof, the examiner reviewed the history of in-service audiological examinations, and found that there was no hearing loss on the April 1981 separation examination and furthermore no significant shift in hearing between entrance and separation. The examiner also noted that while hearing loss may be associated with otitis media, hearing loss was expressly denied on the outpatient record which documented the Veteran’s treatment for the condition in service. Pursuant to a January 2017 Board remand, the claims file was reviewed by a VA examiner in January 2017 for the purpose of eliciting an addendum opinion as to the likely etiology of the bilateral SNHL. In finding that it was less likely than not that the bilateral SNHL was incurred or otherwise attributable to service, the examiner noted that the Veteran’s MOS had a low probability of noise exposure and that there was no evidence that he reported any hearing difficulties while in service and for almost 30 years after service, during which time he was exposed to occupational and recreational noise. The examiner further highlighted the lack of significant threshold shifts in the audiometric testing when comparing the results of the January 1974 and April 1981 examinations. The RO was requested to obtain another addendum opinion pursuant to the Board’s most recent September 2017 remand, to include consideration of the Veteran’s lay statements. In a November 2017 correspondence, the examiner found that all of the service treatment records clearly documented that there were no significant permanent worsening shifts in hearing thresholds during military service or shortly after service. Complaints of hearing loss were specifically denied. There was no documentation to connect hearing loss or tinnitus to a motor vehicle accident in service, and the Veteran reported many years of post-military civilian occupational and recreational noise exposure. The lay statements of the Veteran were considered, as requested in the prior remand, but were found to “not overrule the clear and present evidence” in the noted records. Accordingly, hearing loss was found to not be related to service. Upon consideration of the record, the Board finds that the preponderance of the evidence is against a determination that service connection is warranted for bilateral SNHL. As stated, a review of the service treatment records does not show any complaints of or treatment for hearing difficulties. Furthermore, at no point during service did the Veteran’s audiometric testing results reflect SNHL in either ear for VA purposes. Indeed, the only threshold shift between the January 1974 examination and the April 1981 discharge examination was positive, reflecting an improvement in hearing acuity. Accordingly, under these circumstances the Board finds that the evidence is against direct service connection for bilateral hearing loss under 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). The Veteran was discharged from active service in June 1981. The earliest documentation of a diagnosis of hearing loss is in the September 2011 VA general examination. The Board acknowledges that the Veteran has asserted that his hearing difficulties began following the in-service motor vehicle accident and have continued to worsen since then. The Veteran is competent to testify as to when his symptoms of hearing loss began. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, the fact that the Veteran was not diagnosed with hearing loss until September 2011, nearly 30 years after he was discharged from service, is persuasive evidence tending to demonstrate that there is no continuity of symptomatology after service. The Veteran has provided no objective medical evidence in support of his assertion that his hearing loss began after the motor vehicle accident and continued to the present. The absence of such evidence coupled with the finding of no hearing loss under VA standards on the separation examination far outweighs the Veteran’s assertion that his hearing loss began in service. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). Significantly, assessing hearing loss as a disability requires findings in accordance with 38 C.F.R. § 3.385, and the Veteran does not have the audiological training or credentials to assess whether his hearing loss has met these thresholds. Accordingly, the preponderance of the evidence is against the claim of service connection for bilateral SNHL based on continuity of symptomatology under 38 C.F.R. § 3.303(b). Moreover, as it has not been established that the Veteran manifested hearing loss prior to his diagnosis via the September 2011 general examination, it is clear that the Veteran’s particular case is well beyond the one-year presumptive period for hearing loss as a chronic disease under 38 U.S.C. § 1112 and 38 C.F.R. §§ 3.307 and 3.309. Therefore, service connection for bilateral SNHL on a presumptive basis is not established. The Veteran may still be entitled to service connection for bilateral SNHL if all of the evidence establishes that the Veteran’s disorder was incurred in service. 38 C.F.R. § 3.303(d). Here, the Veteran’s assertion that his hearing loss is attributable to an in-service motor vehicle accident must be considered in light of the VA audiologist’s multiple opinions, in which she maintained that it was less likely than not that the bilateral SNHL was attributable to in-service noise exposure and/or the in-service motor vehicle accident. In evaluating the Veteran’s lay assertions regarding the etiology of the bilateral SNHL, the Board notes that there is no evidence in the record showing that the Veteran has the medical or audiological training, credentials, or other expertise to competently conclude that his hearing loss is attributable to in-service noise exposure or the motor vehicle accident. Jandreau v. Nicholson, 491 F.3d 1372 (Fed. Cir. 2007). By contrast, a VA audiologist has consistently maintained that the evidence does not support a connection between any in-service event or injury and the development of bilateral SNHL nearly 30 years later. Her opinion has been refined in the November 2017 opinion, in which she considered the Veteran’s lay statements, detailed that the Veteran experienced no significant threshold shifts over the course of his service, and noted that there was no documentation of the Veteran experiencing any hearing loss following the in-service motor vehicle accident. This opinion is highly probative of the issue at hand, as the examiner based her conclusions on a thorough review of the available lay and medical evidence and supported those conclusions with a sufficient rationale. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303 (2008). The Board finds that this opinion substantially outweighs the lay evidence of record, in light of the rationale presented and the absence of training or credentials on the part of the Veteran. In summary, the preponderance of the evidence is against the Veteran’s service connection claim, the benefit-of-the-doubt standard of proof does not apply, and the claim is denied. 38 U.S.C. § 5107(b). 3. Entitlement to service connection for tinnitus The Veteran contends that he developed symptoms of tinnitus following an in-service motor vehicle accident that have continued to the present. Upon consideration of the record, the Board concludes that the Veteran has a current diagnosis of tinnitus and that, granting the Veteran the benefit of doubt, the evidence is at least in equipoise as to whether it is related to in-service noise exposure. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. § 3.303(a). Initially, the Board notes that the Veteran is competent to state that he has ringing in his ears, and thus the Board finds that he currently has tinnitus. Charles v. Principi, 16 Vet. App. 370 (2002). The only question that remains is whether the Veteran had in-service noise exposure to which the tinnitus is attributable. As stated, the Veteran’s service personnel records reflect that his MOS during his career was an administrative clerk; however, a copy of his DD Form 214 shows that he was decorated as a rifle and pistol marksman, which strongly suggests that he was exposed to loud arms fire while in service. During the December 2012 hearing, the Veteran stated that he began to experience tinnitus symptoms following the in-service motor vehicle accident and that they have continued to the present. The Veteran was afforded a VA examination in March 2016 during which he reported experiencing tinnitus symptoms in service that he attributed to the firing of a shot gun on the firing range. After a review of the record, the examiner opined that it was less likely than not that the tinnitus was attributable to service. In support thereof, the examiner noted that tinnitus is often associated with the onset of hearing loss, and, as the hearing loss was not documented until 2011, the examiner found it unlikely that it manifested during service as the Veteran reported, especially in light of in-service examinations that did not reflect any complaints of or treatment for symptoms of tinnitus. In addendum opinions dated in January 2017 and in November 2017, the examiner maintained that the tinnitus was likely due to the bilateral hearing loss and as such it was less likely due to service as the examiner concurrently determined that hearing loss was not attributable to service. Ultimately, although the March 2016 VA examiner did opine that it was more likely than not that the tinnitus was attributable to the Veteran’s hearing loss, they did not account at all for the Veteran’s credible report of having been exposed to loud noise in service. While the Board acknowledges that the Veteran did not specifically seek treatment for tinnitus symptoms while in service, and did not report experiencing any such symptoms at the time of his discharge, the fact remains that he has in-service noise exposure and reported experiencing tinnitus symptoms during service that he attributed to that in-service noise exposure. The Veteran’s statements are competent, credible, and probative, and, resolving doubt in his favor, the Board finds that the record reasonably supports entitlement of the Veteran to service connection for tinnitus based on his lay statements. Consequently, service connection for tinnitus is granted. 38 U.S.C. § 5107(b). A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher M. Collins, Associate Counsel