Citation Nr: 1802736 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 16-15 414 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Entitlement to an effective date earlier than September 24, 2010, for the award of a total disability rating by reason of individual unemployability (TDIU). REPRESENTATION Appellant represented by: Sean A. Kendall, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. L. Krasinski, Counsel INTRODUCTION The Veteran served on active duty from June 1951 to June 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York, which granted TDIU and assigned an effective date of September 24, 2010. As a preliminary matter, the Board notes that this appeal began as a claim to reopen a previously denied claim of service connection for a bilateral foot disability, to include foot strain and pes planus (last prior final denial was in March 2004). At that time, the Veteran also filed new claims of secondary service connection for other orthopedic disabilities. In December 2009, the Board, in pertinent part, granted the Veteran's petition to reopen his claim and granted the issue of entitlement to service connection for bilateral foot disability. The remaining orthopedic disabilities were appropriately recharacterized as original claims and remanded for additional development. In June 2010, the RO implemented the Board's decision and assigned a 10 percent evaluation, effective March 8, 2016 (the date of claim to reopen). In April 2012, the Board granted service connection for the Veteran's remaining orthopedic disabilities. In May 2013, the RO implemented the Board's decision assigning a 20 percent rating for low back disability, 10 percent rating for bilateral knee disability, respectively, and 10 percent rating for bilateral hip disability, respectively. Subsequently, in June 2013, the Veteran filed a notice of disagreement with the initial evaluations. The Board notes, however, that in a statement dated in May 2014, the Veteran withdrew his appeal of the claims for increased rating in preference to a grant of TDIU. During a subsequent VA examination conducted in September 2010 (within the one-year appeal period before the June 2010 rating decision became final), the Board notes that the Veteran indicated he has been unemployed for the past "5 to 10 years [due to his] musculoskeletal symptoms," which the Board found includes his then-service-connected bilateral foot disability. See the July 2017 Board decision. In August 2013, the Veteran filed a claim for TDIU (via a VA Form 21-8940) due to his service-connected musculoskeletal disabilities, including his back and bilateral hip, knee, and foot. As mentioned, in May 2014, the RO granted TDIU and assigned an effective date of September 24, 2010, which the RO noted is when the Veteran first "met the schedular requirements." In doing so, the Board finds that the RO acknowledged that although the Veteran did not file a formal claim until August 2013, the Veteran, in stating that his musculoskeletal symptoms rendered him unemployable, was seeking to obtain an appropriate, i.e., higher rating for his service-connected disability as a part of his initial adjudication. See 38 C.F.R. § 3.156(b); see generally, AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the issue of effective date of the TDIU is properly before the Board, and extends the appellate period for consideration to the effective date of the service-connected disabilities, i.e., March 8, 2006. The Board notes that service connection was not in effect any disability prior to that date. In April 2017, the Veteran appeared with his representative for a videoconference hearing before the undersigned. A transcript of that proceeding is associated with the record. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). In July 2017, the Board remanded the issue of TDIU to the agency of original jurisdiction (AOJ) for referral for extraschedular consideration. This action has been completed. The Board is satisfied that there has been substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. The Veteran's service-connected disabilities consist of a bilateral foot disability, to include foot strain and pes planus (rated as 10 percent from March 8, 2006 to August 20, 2012), low back disability (rated as 10 percent from March 8, 2006 to September 23, 2010), right hip disability (rated as 10 percent from March 8, 2006), left hip disability (rated as 10 percent from March 8, 2006), right knee disability (rated as 10 percent from March 8, 2006), and right knee disability (rated as 10 percent from March 8, 2006), with a combined rating of 50 percent from March 8, 2006 to September 23, 2010. 2. The Veteran has a high school education and he has work experience as an actor, truck driver, and painter. 3. From March 8, 2006 to September 23, 2010, the evidence demonstrates the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. CONCLUSION OF LAW The criteria for the assignment of a total rating based on individual unemployability by reason of service-connected disability to include on an extraschedular basis have been met from March 8, 2006 to September 23, 2010. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Total disability meriting a 100 percent schedular rating exists "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. Where the schedular disability rating is less than 100 percent, a total rating due to individual unemployability may nonetheless be assigned if a veteran is rendered unemployable as a result of service-connected disabilities, provided that certain regulatory requirements are satisfied. See 38 C.F.R. §§ 3.341(a), 4.16(a). Total disability ratings for compensation may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). "Marginal employment," for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, shall not be considered "substantially gainful employment." 38 C.F.R. § 4.16(a). In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the veteran actually works and without regard to the veteran's earned annual income..." Other factors to be considered in determining whether a veteran is unemployable are his level of education, his employment history, and his vocational attainment. See Hyder v. Derwinski, 1 Vet. App. 221, 223 (1992). However, advancing age, any impairment caused by conditions that are not service connected, and prior unemployability status must be disregarded when determining whether the veteran currently is unemployable. 38 C.F.R. § 4.16(a). Additionally, where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. §§ 3.321(b), 4.16(b). When the percentage requirements set forth in § 4.16(a) are not met, TDIU claims should be submitted to the Director, C&P Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, C&P Service. Bowling v. Principi, 15 Vet. App. 1 (2001). See also Floyd v. Brown, 9 Vet. App. 88, 95 (1996); VAOPGCPREC 6-96. Once the evidence has been assembled, it is the Board's responsibility to evaluate the evidence. 38 U.S.C. § 7104(a). The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.102, 4.3. The Veteran asserts that he has been unemployable in a substantially gainful occupation due to his service-connected disabilities prior to September 24, 2010. Specifically, in his VA Form 21-8940 filed in August 2013, the Veteran indicates that he has been unable to work since at least 2004. At the September 2010 VA examination, the Veteran indicated he has been unemployed for the past "5 to 10 years [due to his] musculoskeletal symptoms." The Veteran's service-connected disabilities consist of a bilateral foot disability, to include foot strain and pes planus (rated as 10 percent from March 8, 2006 to August 20, 2012), low back disability (rated as 10 percent from March 8, 2006 to September 23, 2010), right hip disability (rated as 10 percent from March 8, 2006), left hip disability (rated as 10 percent from March 8, 2006), right knee disability (rated as 10 percent from March 8, 2006), and right knee disability (rated as 10 percent from March 8, 2006), with a combined rating of 50 percent from March 8, 2006 to September 23, 2010. Therefore, the Veteran does not meet the minimum rating requirements of § 4.16(a) for a TDIU rating from March 8, 2006 to September 23, 2010. In accordance with 38 C.F.R. § 4.16(b), this matter was referred to the Director of C&P for consideration. In an October 2017 opinion, the Director determined that based upon the totality of evidence of record, extra-schedular entitlement to TDIU from March 8, 2006 to September 23, 2010 is not shown due to the low back, hip, feet, or knee conditions, nor was there was any collective impact, and the rating schedule was not shown to be inadequate at any time. The Director indicated that the Veteran's conditions were shown to be of a mild nature with no evidence of preclusion to occupational activity. The Director indicated that it is not shown that the Veteran is unemployable under any circumstances. The Director noted that the VA medical opinion indicated that the Veteran was unable to work due to his limited ability walk and stand as a result of foot pain and this was unsupported by the evidence of record, and the examiner's statement is of little probative value since it assumes economic factors not in the record pursuant to Miller v. West. The Director stated that there are several nonservice-connected disabilities identified, which have not been differentiated from service-connected conditions and she cited to Cathell v. Brown. The Director noted that in March 2004, the examiner remarked that the Veteran was unable to work due to his limited ability walk and stand as a result of foot pain. Objective findings revealed a painful range of motion at the right ankle was noted as -10 degrees dorsiflexion, 38 plantar flexion, 26 supination, 5 pronation; left ankle was -8 dorsiflexion, 36 plantar flexion, 24 supination and 5 pronation. The diagnosis was mild pes planus and plantar fasciitis. In December 2009, VA exam showed the Veteran reporting knee pain since the 1960's as well as bilateral hip pain. Objective evidence revealed a painful range of motion as 110 degrees flexion and 0 for extension in both knees. Ligaments were noted to be intact with no instability or subluxation. Hip range of motion was 60 degrees of flexion, 30 extension, 25 adduction, 45 abduction, 60 external rotation, and 40 internal rotation. Imaging study revealed mild degenerative changes in the knees with no bone or joint abnormality in the hips. A VA exam in March 2010 indicated that Veteran reporting bilateral foot pain. Objective findings revealed no evidence of unusual shoe wear, hammer toes, valgus, malalignment, skin or vascular changes. Slight lateral alignment was noted at the Achilles tendon. Imaging showed plantar calcaneal spur, small area of calcification seen in very distal Achilles tendon. The diagnosis was bilateral mild pes planus. In March 2010 imaging results showed multilevel mild lumbar degenerative changes. Range of motion was not performed due to the Veteran being in pain. Steroid injection was administered. The examiner remarked that most of pain was located over right iliac crest which is reproducible with palpation. Pain mostly soft tissue in nature with no evidence of neurological deficits or radiculopathy. The Director concluded that since no service-connected disabilities are identified individually or collectively, as the sole reason for the Veteran's unemployability TDIU is not warranted on an extra-schedular basis prior to September 24, 2010, and cited to Blackburn v. Brown. Although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal. See Floyd v. Brown, 9 Vet. App. 88, 96-97 (1996) (stating that once the Board properly refers an extraschedular rating issue to Director of Compensation and Pension for review, appellant may "continue to appeal the extraschedular rating aspect of this claim"); see also 38 U.S.C. §§ 511 (a), 7104(a) ("All questions in a matter...subject to decision by the Secretary shall be subject to one review on appeal to the...Board."); Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed.Cir.2003) ("Together sections 511(a) and 7104(a) dictate that the Board acts on behalf of the Secretary in making the ultimate decision on claims and provides 'one review on appeal to the Secretary' of a question 'subject to decision by the Secretary' under section 511(a)."). In Anderson v. Shinseki, 22 Vet. App. 423 (2009), the Court stated that Section 7104, unlike the Court's jurisdictional statute, 38 U.S.C. § 7261 (a)(4), contains no limitations on the Board's ability to review favorable findings. The Board is permitted to review the entirety of the proceedings and has jurisdiction to review whether the decision not to award an extraschedular rating was appropriate. Anderson v. Shinseki, 22 Vet. App. 423, 428 (2009). In the present case, the Board has reviewed the October 2017 decision by the Director. The Board finds that an award of TDIU on an extraschedular basis is warranted from March 8, 2006 to September 23, 2010 as the Veteran was unable to work in substantially gainful employment due to the service-connected disabilities. The Board finds that the evidence of record is in equipoise as to whether the Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation and precluded gainful employment from March 8, 2006 to September 23, 2010. In this case, the evidence of record shows that the Veteran's civilian occupation consisted of full-time acting. On his application (VA Form 21-8940), the Veteran indicated that he had last worked full-time in 2004, but that his disabilities began affecting his employment since 2000. The Veteran has a high school education, and some vocational training in acting school. The Veteran also submitted copies of his income tax statements for the years 2000 through 2004 to indicate financial difficulties and that he was receiving a small pension from the Screen Actors Guild. At the April 2017 hearing, the Veteran reported that as an actor, he was required to be on his "feet for 12 to 16 hours a day." However, as his disabilities progressed, it "got to the point where [he] couldn't walk far...because[his] knees [would] give out" and that his musculoskeletal pain was so "tremendous...[he couldn't] take it." The Veteran reported that it became increasingly difficult to "hide [the functional impact]" of his disabilities and that he had "gained a [negative] reputation," as someone who was physically unable to do the work. As a result, the Veteran indicated the "industry left [him]." Prior to acting, the Veteran reported he was briefly employed as a truck driver and a painter, respectively. The Veteran further reported that he now uses a cane for ambulation and stability. He described his functional limitations as not being able to walk more than two blocks without resting, needing assistance for basic activities such as wearing socks or tying shoe laces, and needing assistance with transfers, e.g., getting up from a seated position. A January 2004 VA examination report indicates that the Veteran reported that he could walk two blocks and then he had to rest and the pain decreases with rest. He attended a pain clinic and the pain was a 7. His symptoms were pain and swelling of the feet. The precipitating factor for a flare-ups was prolonged walking and he had functional impairment during flare-ups. Examination revealed mild pes planus deformity of both feet and moderate plantar fasciitis. There was pain on motion and pain on the under surface of the mid foot at the end of supination. There was mild edema and tenderness on the plantar surface of the mid foot. Gait was limited and antalgic. The VA examiner indicated that the Veteran reported that he retired in 1962 and he had a desk job prior to that. The Veteran was independent in all activities, but he needed help for transfer, tying shoe laces, and socks from his wife. He was able to walk two blocks and then he has to rest. The diagnoses were symptomatic mild pes planus deformity, and bilateral plantar fasciitis. A VA treatment record dated in March 2004 indicates that the Veteran had the following medical problems: hypertension, diabetes mellitus, and benign prostatic hypertrophy in addition to chronic pain from spinal stenosis with radiculopathy along anterior femoral cutaneous nerve and chronic bilateral foot pain of uncertain etiology. The VA physician, Chief of Section of General Medicine at VA in Yonkers, stated that the Veteran's chronic bilateral foot pain began shortly after his military service and may be caused by "steel deck syndrome." The VA physician opined that "[the Veteran] is unable to work due to his limited ability to walk and stand as a result of his foot pain." VA podiatry records dated in February 2006 indicate that the Veteran sought medical treatment for painful flat feet and thick nails. He wore orthotic shoes and orthoses which helped reduce the pain minimally. It was noted that his foot pain has become increasingly worse over the years and he had associated knee, hip, and low back pain. Examination revealed bilateral flat feet with decreased arch and pain on palpation of the plantar fascia and midfoot area on the left. The assessment in pertinent part was severe pes planus, bilateral, of longstanding duration which more likely than not contributed to the knee, hip, and low back osteoarthritis, and chronic plantar fasciitis. VA Physical Medicine and Rehabilitation records dated in April 2006 indicate that the Veteran reported having low back pain that radiated to the right leg with constant numbness and burning pain over right thigh and this caused difficulty sleeping. He reported having severe pain over the left foot and it was worse with weightbearing. He saw pain management in April 2005 and was given an injection over the sacroiliac joint which helped temporarily. He tried Percocet and tizanidine with some relief but he has not been taking it for more than 6 months. X-ray examination of the lumbar spine showed moderate degenerative disc disease. On examination, the pain level in the low back was a 7 and it was a 6 in the left foot. The Veteran ambulated with a cane. There was painful motion in the low back. VA podiatry records dated in June 2006 indicate that the Veteran had a slight limping gait due to pain. A June 2006 EMG and Nerve Conduction Studies of the right lower extremity showed highly suggestive of mild peripheral neuropathy and right L5-S1 radiculopathy. VA treatment records dated in August 2006 reflect that the Veteran presented with bilateral foot pain, worse with weight-bearing. It further reflects that the Veteran used special orthopedic shoes to help alleviate the pain; however, the Veteran still walked with a noticeable limp and has difficulty with heel-to-toe gait. A November 2006 VA podiatry record shows a diagnosis of severe pes planus, chronic plantar fasciitis; the Veteran had complaints of bilateral foot pain. An April 2007 Physical Medicine & Rehabilitation record indicates that the Veteran reported having increased right sided low back pain with radiation to right entire leg with numbness and burning. He reported having severe pain over the right knee. On examination of gait, there was slight limping due to pain over right knee. A December 2007 VA podiatry consult indicates that the Veteran reported having pain in the feet. On exam, there was pain to palpation of plantar fascia and midfoot area on left. The assessment was chronic plantar fasciitis and severe pes planus, bilaterally. VA treatment records show treatment for low back pain and foot pain in 2008. In May 2008, the Veteran reported that the back pain was a 7. In July 2008, the Veteran reported that the low back pain and the foot pain was a 7. A March 2010 VA examination report indicates that the Veteran reported having continuous pain in both feet all the time. The Veteran required help with his activities of daily living from his spouse. He was able to stand and walk for a few minutes. Examination revealed bilateral pes planus. There was diffuse tenderness throughout the feet. The Veteran had a slow paced wide gait with use of a cane. The diagnosis was mild pes planus bilaterally. The September 2010 VA foot examination report indicates that the Veteran reported having progressive pain, stiffness, and weakness in the feet. He reported having pain in the medial arch of the left and right feet. He reported having daily flare-ups precipitated by prolonged walking or standing, squatting, stairs, cold weather, and lifting or carrying, and he had partial relief with rest and activity modification. The Veteran was able to stand for 5 minutes and walk 2 blocks. On examination, there was objective evidence of painful motion in each foot and pain with foot manipulation. The diagnosis was flexible flat foot deformity bilaterally. The VA examiner indicated that the bilateral foot disability caused significant effects on occupation and the impact on occupational activities was decreased mobility, problems with lifting and carrying, and pain. The resulting work problems was that the Veteran was assigned different duties and he had increased tardiness and absenteeism. The examination report indicates that the Veteran's usual occupation was actor and he has been unemployed for the past "5 to 10 years [due to his] musculoskeletal symptoms." The September 2010 VA hip and knee examination report indicates that the Veteran reported having progressive hip and knee pain and the Veteran correlated the onset with the altered gait secondary to the flat feet. The Veteran reported having the following symptoms in the knees and hips: giving way, pain, stiffness, weakness, and decreased speed of joint motion. He reported having severe flare-ups of pain daily precipitated by prolonged walking, standing, sitting, squats, stairs, cold weather, and lifting or carrying. Gait was antalgic and the Veteran had poor propulsion. There was objective evidence of pain on motion with range of motion testing of the hips and knees. The diagnoses were soft tissue impingement of the hips and mild degenerative joint disease of the knees. The VA examiner stated that the disability caused significant effects to the Veteran's occupation and the bilateral hip and knee disabilities impacted occupational activities due to decreased mobility, problems with lifting and carrying, and pain, and this resulted in assigned different duties, and increased tardiness and absenteeism. The September 2010 VA low back examination report indicates that the Veteran reported having progressive low back pain and he has undergone multiple injections with transient relief of symptoms. The Veteran reported having the following symptoms in the low back: fatigue, decreased motion, stiffness, weakness, spasm, and spine pain. He stated that the spine pain was severe and daily and the duration of the pain lasted for hours. The Veteran reported having severe flare-ups of spine pain daily precipitated by prolonged walking, bending, twisting, cold weather, and lifting or carrying. He had partial relief with rest and activity modification. The Veteran used crutches and he was able to walk two blocks. Examination revealed that gait was antalgic and the Veteran had poor propulsion. There was spasm, pain on motion, and tenderness on exam. There was limited range of motion with objective evidence of pain. The VA examiner stated that the disability caused significant effects to the Veteran's occupation and the lumbar spine disability impacted occupational activities due to decreased mobility, problems with lifting and carrying, and pain, and this resulted in being assigned different duties, and increased tardiness and absenteeism. A December 2014 VA podiatry record indicates that the Veteran presented with chronic pain in his feet. He reported having constant pain in the feet, knees, and back. The VA podiatrist indicated that the Veteran had bilateral severe pes planus of chronic long standing duration. In a January 2015 addendum, the VA podiatrist stated that the Veteran's medical records were reviewed and the Veteran started seeing podiatry on September 22, 2005. The VA podiatrist stated that based on the knowledge of the Veteran's complaints dating back to 2005 at VA and even further back at other hospitals, the Veteran was unemployable at least dating back to September 22, 2005 based on his foot, knee and back pain. The evidence discussed in detail above is probative medical evidence which establishes that the service-connected bilateral foot, knee and lumbar spine disabilities preclude the Veteran from substantially gainful employment from March 8, 2006 to September 23, 2010. The medical evidence shows that since March 2006, the Veteran has had severe bilateral pes planus with severe pain in the feet, increased pain in the feet with weightbearing, antalgic gait with use of a cane, and an ability to walk two blocks before stopping. The medical evidence shows that since 2007, the Veteran had increased low back pain with pain radiating down the right lower extremity and severe right knee pain. He had difficulty standing for more than several minutes or ambulating more than two blocks. Medical treatment including pain medications, injections, orthotics, and physical therapy were only mildly effective. There are two medical opinions from VA physician's which indicate that the Veteran was unable to work since March 2006 and earlier due to the service-connected bilateral feet, knee, hip and low back disabilities. The VA podiatrist who provide the January 2015 opinion reviewed the Veteran's medical history including the symptoms and impairment from the service-connected bilateral foot, knee, and lumbar spine disabilities and concluded that these disabilities rendered the Veteran unemployable since September 2005 and maybe earlier. The Board finds the medical evidence described above including the March 2004 and January 2015 medical opinions to be highly probative and this evidence weighs in favor of entitlement to TDIU. There is medical evidence that weighs against the claim for TDIU. As noted by the Director of C&P, there are VA findings that the service-connected disabilities are of a mild nature. The Director further stated that the Veteran was not shown to be unemployable under any circumstances as the VA medical opinion that indicated that the Veteran was unable to work due to his limited ability walk and stand as a result of foot pain was unsupported by the evidence of record. As discussed above, the Board finds that there is medical evidence which supports a finding that the Veteran is unemployable due to the service-connected disabilities from March 8, 2006 to September 23, 2010. The Board finds that the competent and credible evidence is in equipoise as to whether the Veteran meets the requirements for a TDIU on an extraschedular basis due to his service-connected bilateral feet, knee, hip, and lumbar spine disabilities, when considered in light of his education and occupational experience, and his service-connected disabilities have rendered him incapable of obtaining or retaining substantially gainful employment. See 38 C.F.R. § 4.16 (b). Thus, a TDIU is warranted from March 8, 2006 to September 23, 2010, and the appeal is granted. VA has certain notice and assistance obligations to claimants. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 3.159. In light of the favorable outcome, additional discussion of VA's duty to notify and assist is not warranted. ORDER A total rating based on individual unemployability by reason of service-connected disability to include on an extraschedular basis is granted from March 8, 2006 to September 23, 2010. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs