Citation Nr: 1827771 Decision Date: 05/04/18 Archive Date: 05/14/18 DOCKET NO. 06-17 656A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an evaluation in excess of 10 percent prior to July 27, 2015, and in excess of 20 percent from July 27, 2015, for lumbosacral strain. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD P. Olson, Counsel INTRODUCTION The Veteran had active military service from September 1974 to September 1977. This matter is before the Board of Veterans' Appeals (Board) following Board Remands in June 2010 and May 2017. This matter was originally on appeal from a June 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas. In June 2010, the Veteran testified at a Travel Board hearing. A transcript of that hearing is included in the claims file. The issue of entitlement to an evaluation in excess of 40 percent from July 27, 2015, is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to June 5, 2007, the Veteran's service-connected lumbar spine disability, lumbosacral strain, was not manifested by forward flexion of the thoracolumbar spine 60 degrees or less, combined range of motion of the thoracolumbar spine 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitating episodes having a total duration of at least 2 weeks during a 12-month period. 2. From June 5, 2007, to July 26, 2015, the Veteran's service-connected lumbar spine disability, lumbosacral strain, was at its worst manifested by forward flexion of the thoracolumbar spine 30 degrees or less; it was not manifested by ankylosis or incapacitating episodes having a total duration of at least 6 weeks during a 12-month period. CONCLUSIONS OF LAW 1. Prior to June 5, 2007, the criteria for an evaluation in excess of 10 percent for lumbosacral strain were not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1, 4.7, 4.71a, Diagnostic Code 5237 (2017). 2. From June 5, 2007, to July 26, 2015, the criteria for an evaluation of 40 percent, but no higher, for lumbosacral strain were met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1, 4.7, 4.71a, Diagnostic Code 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Preliminary Matters Pursuant to the Board's June 2010 Remand, the AOJ obtained all outstanding treatment records available, scheduled a VA examination to determine the nature and severity of Veteran's service-connected lumbar spine disability, readjudicated the claim, issued a Supplemental Statement of the Case. Based on the foregoing actions, the Board finds that there has been compliance with the Board's June 2010 Remand. Stegall v. West, 11 Vet. App. 268 (1998). As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The requirements of 38 U.S.C. §§ 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or completeness of the application. VA notified the Veteran in August 2005, March 2006, and June 2008 of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. There is no evidence that additional records have yet to be requested, or that additional examinations are in order. Moreover, during the June 2009 Board hearing, the undersigned explained the issues on appeal and asked questions designed to elicit evidence that may have been overlooked with regard to the claim. These actions provided an opportunity for the Veteran and his representative to introduce material evidence and pertinent arguments, in compliance with 38 C.F.R. § 3.103(c)(2) and consistent with the duty to assist. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, as here, the Veteran is requesting a higher rating for an already established service-connected disability, the present disability level is the primary concern and past medical reports do not take precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "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). The veteran's service-connected lumbosacral strain has been rated as 10 percent disabling prior to July 27, 2015, and 20 percent disabling since July 27, 2015, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237. The rating criteria for diseases and injuries of the spine are contained in 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243 (for, respectively, vertebral fracture or dislocation; sacroiliac injury and weakness; lumbosacral or cervical strain; spinal stenosis; spondylolisthesis or segmental instability; ankylosing spondylitis; spinal fusion; degenerative arthritis of the spine; and intervertebral disc syndrome). In pertinent part, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following apply: 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 warrants a 10 percent rating. 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 abnormal kyphosis warrants a 20 percent rating. Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine warrants a 40 percent rating. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. Note (1):Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2):(See also Plate V.) For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero 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. Note (3):In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4):Round each range of motion measurement to the nearest five degrees. Note (5):For VA compensation purposes, unfavorable ankylosis is a condition in which 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. Evaluate intervertebral disc syndrome (preoperatively or postoperatively) either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under §4.25. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months, a 10 percent rating is warranted. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is warranted. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is warranted. With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. Note(1): For purposes of evaluations under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note(2): If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant on motion. Disability of the musculoskeletal system is the inability to perform normal working movement with normal excursion, strength, speed, coordination, and endurance, and that weakness is as important as limitation of motion, and that a part that becomes disabled on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, through atrophy, for example. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. §§ 4.45 and 4.59 also contemplate inquiry into whether there is limitation of motion, weakness, excess fatigability, incoordination, and impaired ability to execute skilled movements smoothly, and pain on movement, swelling, deformity, or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight-bearing are also related considerations. The Court has held that diagnostic codes predicated on limitation of motion require consideration of a higher rating based on functional loss due to pain on use or due to flare-ups. 38 C.F.R. §§ 4.40, 4.45, 4.59; Johnson v. Brown, 9 Vet. App. 7 (1997); and DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). The Board notes that in a September 2015 rating decision, service connection was established for radiculopathy of the right and left lower extremities. As the Veteran did not appeal the disability ratings assigned or the effective date, the Board will restrict its analysis to the orthopedic manifestations of the lumbar spine. The Veteran underwent VA examination in August 2005 at which time the Veteran reported flare ups of back pain every one to two months lasting one to two days during which his back and legs locked up completely. The Veteran reported mild decreased motion, mild stiffness of the lower back, spasm of the lower back, and moderate pain (aching, sharp, shooting, and stabbing) radiating to bilateral lower extremities, left greater than right. The Veteran denied fatigue and weakness. Inspection of the spine and back revealed normal posture and gait; there was no abnormal spinal curvature, spasm, atrophy, guarding, or weakness. There was mild pain with motion and tenderness. Flexion was from zero to 90 degrees; extension, lateral flexion, and lateral rotation were all from zero to 30 degrees. There was pain at endpoints in all motion. There was no additional limitation of motion on repetitive use testing due to pain, fatigue, weakness, or lack of endurance. Motor and sensory examinations were normal; reflex examination showed absent knee and ankle jerks bilaterally. X-rays showed slightly decreased lordosis. There were no compressions, and disks were maintained. The posterior compartment was within normal limits. The examiner diagnosed the Veteran as having myofascial back pain. VA treatment records indicate that the Veteran was seen in February 2007 for initial history and physical at which time he reported that his lower back pain was persistent and radiating into bilateral lower extremities, worse on the left side. The Veteran denied numbness and weakness. Physical examination of the back revealed no gross deformity. The Veteran did not attempt spine flexion; he was able to walk on heels and toes. Straight leg raising at 50 degrees. The Veteran was diagnosed as having chronic lower back pain. An MRI of the lumbosacral spine was recommended; the Veteran also wanted referral to VA pain clinic for epidurals. He was noted to not be on any pain medications at that time and refused referral for physical therapy. The Veteran was seen in May 2007 at which time a back examination revealed straight leg raising 65 degrees but no weakness in bilateral lower extremities. MRI showed degenerative changes with defecation of the L2/L3, L4/L5, and L5/Sl disks of which the last disk has a posterior bulge with left posterior prominent than narrows the left neural foramen more than right. The other two levels had only mild disk bulges without significant canal stenosis or neural foraminal stenosis. The Veteran was diagnosed as having chronic low back pain and bilateral lower extremity radicular symptoms, right worse than left, secondary to multilevel degenerative disc disease (DDD) and facet degenerative joint disease (DJD). At his first visit to the VA pain clinic on June 5, 2007, the Veteran described a constant sharp stabbing ache to the lumbosacral junction with radiation along bilateral lower extremities. He denied any bladder or bowel dysfunction. Examination of his back showed very limited flexion with the hands barely to the level of the knees, full extension and full rotation. There was no paraspinal tenderness. Examination of bilateral lower extremity showed the Veteran was barely able to stand on heels, toes, or each of the lower extremities. There was a negative straight leg raising in sitting position. Strength was rated 4/5 bilaterally. He was given a lumbar epidural steroid injection (LESI). In January 2008, the Veteran returned for follow up; he reported some relief with LESI but noted that the pain was coming back. Physical examination of the lumbar spine demonstrated no tenderness to palpation, decreased flexion to 75 degrees, and extension to 5 degrees with pain. Bilateral lower extremity power was 4/5. There were 2+/3 reflexes of the patella bilaterally. The Veteran was given a repeat LESI and another in February 2008. In March 2008, the Veteran returned for follow up for low back and leg pain. He described pain in low back as constant sharp pain that radiated down to the calf of the bilateral lower extremities. Active range of motion was noted to be limited by pain. There was mild limitation noted with forward flexion and moderate limitation noted with backward extension. The Veteran was noted to only be able to extend about 20-30 percent; limitation was also noted with left and right rotation. Axial loading noted to reproduce pain around the lumbosacral region, and there was midline tenderness and paraspinal tenderness with palpation around the lumbosacral region. All extremities demonstrated 4/5 strength with no limitation of motion noted. On January 22, 2009, the Veteran presented to the Emergency Department with complaint of sharp pain in the right low back for three days radiating to groin/testes/right thigh. Physical examination showed tenderness to palpation, muscle spasm was noted, range of motion was restricted, and he was unable to toe stand. He was discharged with Tylenol and Flexeril and told to avoid strain to back. The Veteran presented to the pain clinic in May 2009 at which time he reported that pain was constant, was rated at 8/10, and involved the lumbosacral area bilaterally and the anterior and lateral thighs. Numbness was reported of the distal knees involving the whole calf and feet. Physical examination demonstrated that he was able to rise on heels and toes. He had difficulty with standing on one foot with pain increasing in his back as he lifted his foot. Could perform straight leg raise to 60 degrees but pain limited any further lift. Strength was 4/5 bilaterally with weakness in hip flexors. Forward flexion was to 30 degrees, extension was to 15 degrees, and sideways bending was to 20 degrees bilaterally. Axial loading bilaterally caused "a different kind of back pain." A caudal epidural steroid injection was given in June 2009. In April 2010, the Veteran was seen in pain clinic for low back pain and bilateral lower extremity numbness. The Veteran reported that the pain in his back seemed to be the most problematic. He reported that the last injection helped for about one month and noted that he was interested in additional pain relief. Physical examination demonstrated lumbar spine flexion to 60 degrees and extension to 10 degrees limited by pain. There was midline and bilateral paraspinal tenderness. Axial loading increased pain. Bilateral lower extremity strength was 5/5 with full range of motion. Neurological finding indicated that he was intact. In May 2010, he underwent bilateral L3-S1 median branch block. In January 2011, the Veteran underwent VA examination at which time he complained of low back pain rated as 10/10 on a daily basis which did not improve. The Veteran reported that his pain radiated to the posterior aspect of the bilateral buttocks, thigh, and calves and intermittent numbness. The Veteran stated that the radiating pain alternated and was more common in the left lower extremity than the right. The Veteran reported flare-ups that occurred approximately twice a week, causing him to seek self-imposed bed rest. The veteran complained of episodes of falling due to his lumbar spine; he stated that his spine locked up causing him to fall but he noted that he had not sought medical care for these falls. On physical examination, the Veteran's gait was normal but slow. Forward flexion was from zero to 20 degrees, extension was from zero to 10 degrees, right and left rotation were from zero to 20 degrees, and right and left lateral flexion were from zero to 10 degrees. The Veteran complained of pain at the endpoints of all motion in all planes. The Veteran did not exhibit any additional loss due to pain, fatigue, weakness, lack of endurance or incoordination on repetitive motion testing; but he complained of increased pain on repetitive motion testing. The examiner noted that the Veteran could only flex to 20 degrees in the standing position on direct range of motion testing, but was able to sit on the examination table with the hips and back flexed to 90 degrees. The examiner noted that she felt that range of motion testing at that time was unreliable. X-rays of the lumbar spine in May 2012 showed vertebral body height and alignment were maintained. There was no fracture or dislocation and no significant degenerative changes. In November 2012, the Veteran was seen at the pain clinic at which time he reported pain in the middle of his low back radiating to the bilateral whole extremities including thigh, calf, foot, and toes. The radiating pain was greater on the left than the right and was accompanied by tingling on the right lower extremity and burning sensation on the left lower extremity, greater on the distal aspect. The Veteran denied bladder and bowel incontinence. Physical examination demonstrated normal gait and spinal alignment. There was no joint deformity or subluxation. There was no spinous process tenderness or sciatic notch tenderness. The paraspinal muscles at the lumbosacral region were tender. He was able to walk on toes and heels with difficulty. Flexion, extension, and side bending were limited; rotation was within normal limits without pain. Straight leg raising was negative; Facet loading test and Faber's were both positive. Sensory examination showed decreased sensation with light touch and pin prick; and reflexes were diminished in both knees and ankles. That same month, the Veteran reported that pain was always present and ranged from 8 to 10/10. The Veteran reported tingling and numbness in the left lower extremity and just tingling in right lower extremity, and he stated that there were times when his left foot felt dead with no feeling at all. The Veteran presented ambulating without any assistive device, cadence was good, and he had no gait deviations. Active range of motion of the trunk was guarded but able to complete within functional limits. There was no muscle atrophy, no tightness along thoracic and lumbar paraspinals, and he was able to walk on heels and toes with some difficulty, but it was noted that the difficulty could be attributed to the Veteran's weight. The Veteran began aquatic therapy in February 2013. The Board has considered the evidence of record and finds that he Veteran is entitled to a 40 percent rating from June 5, 2007. At that time, the Veteran demonstrated "very limited flexion with the hands barely to the level of the knees." The Board notes that although the Veteran's spinal measure was not completed using a goniometer, an instrument for the precise measurement of angles, because the VA provider used finger-floor measurement indicating that the Veteran could barely reach his knees, and indicated that he had "very limited flexion," it is reasonable for the Board to conclude that the Veteran's range of motion limitation at that time was equal to forward flexion of the thoracolumbar spine 30 degrees or less. On that date, the Veteran was given a LESI. On his next visit six months later, his flexion was at 75 degrees. In January 2009, however, he presented to the Emergency Department at which time he had a muscle spasm. When he presented to the pain clinic in May 2009 his forward flexion was 30 degrees. As such, by resolving all reasonable doubt in the Veteran's favor, at its worst, the Veteran's service-connected lumbar spine disability was manifested by forward flexion 30 degrees or less on June 5, 2007. Prior to that date, however, even considering the Veteran's complaints of pain, he is not entitled to a rating in excess of 10 percent pursuant to Diagnostic Code 5237 for his service-connected lumbosacral spine strain as the evidence does not demonstrate forward flexion of the thoracolumbar spine 85 degrees or lower, combined range of motion of the thoracolumbar spine 235 degrees or lower, muscle spasm, guarding, or localized tenderness, or vertebral body fracture. In addition, a rating higher than 40 percent cannot be assigned as ankylosis has not been demonstrated at any time prior to July 27, 2015. ORDER Prior to June 5, 2007, entitlement to an evaluation in excess of 10 percent for lumbosacral strain is denied. From June 5, 2007, to July 26, 2015, entitlement to an evaluation of 40 percent, but no higher, for lumbosacral strain is granted, subject to the law and regulations governing the payment of monetary benefits. . REMAND In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (Court) held that a remand by the Board confers upon the Veteran or other claimant, as a matter of law, the right to compliance with the Board's remand order. Moreover, the Court further held that the Board itself errs when it fails to ensure compliance with the terms of its remand. Id. With respect to the issue of entitlement to an evaluation in excess of 40 percent from July 27, 2015, as noted above, the Board remanded the case in May 2017. At that time the Board directed that the Board should be scheduled for a VA examination to ascertain the severity of his lumbar spine disability. After completing any additional notification or development deemed necessary, the claim was to be readjudicated and, if not granted, a Supplemental Statement of the Case was to be issued. In June 2017, VA examinations were conducted; but not for the Veteran's lumbar spine disability. A Supplemental Statement of the Case was issued; but not with regard to the Veteran's lumbar spine disability. Further development is required in view of this Stegall violation. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of the Veteran's service-connected lumbar spine disability. The claims file should be made available to the examiner for review in connection with the examination. The examiner should provide findings as to the range of motion of the lumbar spine, including flexion and extension. Additionally, the examiner must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. The examiner should indicate whether range of motion is additionally limited due to such factors as pain on motion, weakened movement, excess fatigability, diminished endurance, or incoordination. In doing so, the examiner should offer an opinion as to whether pain could significantly limit functional ability during flare-ups or when the lumbar spine is used repeatedly over a period of time. Such determinations should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner should specifically indicate whether, and at what point during, the range of motion the Veteran experienced any limitation of motion that was specifically attributable to pain. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should also indicate if there is ankylosis of the lumbar spine. In addition, the examiner should describe the frequency and duration of any incapacitating episodes due to the lumbar spine disability, if applicable. The examiner should also comment on the impact of the Veteran's lumbar spine disability on his ability to work. The examiner must provide a complete rationale for all the findings and opinions. 2. After completing any additional notification or development deemed necessary, the Veteran's claim should be readjudicated. If the claim remains denied, the Veteran should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ROBERT C. SCHARNBERGER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs