Citation Nr: 0003601 Decision Date: 02/11/00 Archive Date: 02/15/00 DOCKET NO. 96-51 942 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Whether new and material evidence has been presented to reopen a claim for service connection for a back disability. 2. Service connection for a left lower extremity disability secondary to the service-connected right ankle disability. 3. Entitlement to an increased rating for a right ankle disability currently rated as 40 percent disabling. 4. Entitlement to special monthly compensation for loss of use of the right foot. 5. Entitlement to a temporary total rating for convalescence under the provisions of 38 C.F.R. § 4.30 for the period prior to March 15, 1996. REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty from August 20, 1981, to December 14, 1981. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action by the Department of Veterans Affairs (hereinafter VA) Regional Office in Nashville, Tennessee, (hereinafter RO). The Board is in agreement with the assertion of the veteran's representative in his November 1999 informal hearing presentation that the issues said by the RO in the August 1999 supplemental statement of the case to have been withdrawn, if fact remain on appeal. However, the Board does not agree that the issue of entitlement to a compensable evaluation for a right knee disability is on appeal, as a timely appeal to the April 1998 rating decision denying an increases evaluation for this disability has not been perfected. See 38 U.S.C.A. § 7105 (West 1991); 38 C.F.R. § 20.302 (1999). That issue was not certified to the Board. Therefore, the Board's jurisdiction is limited to the issues listed on the title page. Id. The issue of whether new and material evidence has been presented to reopen a claim for service connection for a back disability requires additional development and will be addressed in the Remand that follows this decision. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The weight of the clinical evidence is against a conclusion that the veteran has a left lower extremity disability that is secondary to her service-connected right ankle disability. 3. The service-connected right ankle disability is manifested by instability with genu recurvatum, paresthesia, hypesthesia and pain with dorsiflexion and plantar flexion; motion in the right ankle was recently measured to 10 degrees of dorsiflexion, 40 degrees of plantar flexion, 10 degrees of inversion and 20 degrees of eversion; no atrophy or significant loss of strength in the right ankle is demonstrated. 4. Ankylosis of the right knee or hip is not demonstrated, nor is complete ankylosis of two major joints of the right lower extremity; the right lower extremity is not shown to be shortened 3 1/2 inches or more due to a service connected disability. 5. Complete paralysis of the external popliteal nerve due to a service-connected disability causing foot drop on the right is not shown. 6. It has not been shown that due to a service-connected disability that the veteran has the removal of the right foot, nor is functioning of the right foot shown to be so limited due to a service connected disability that the veteran would be equally well-served by an amputation of the right foot with use of a suitable prosthetic appliance. 7. It is not shown for the period from November 27, 1995, to March 14, 1996, that treatment for a service-connected disability included surgery or immobilization by cast. 8. There are no extraordinary factors associated with the service-connected right ankle disability productive of an unusual disability picture such as to render application of the regular schedular provisions impractical. CONCLUSIONS OF LAW 1. A left lower extremity disability is not proximately due to or the result of the service-connected right ankle disability. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.310 (1999); Allen v. Brown, 7 Vet. App. 439 (1995). 2. The criteria for a rating in excess of 40 percent for a right ankle disability are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, Part 4, 4.68, Diagnostic Codes (DC) 5160-5173, 5262, 5263, 5270-5274 (1999). 3. The criteria for special monthly compensation for loss of use of the right foot are not met. 38 U.S.C.A. 1114(k), 5107 (West 1991 & Supp. 1999); 38 C.F.R. §§ 3.350(a)(2), 4.63 (1999). 4. The criteria for a temporary total convalescent rating prior to March 15, 1996, are not met. 38 U.S.C.A. § 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.30 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran has presented sufficient evidence to conclude that her claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The credibility of the veteran's evidentiary assertions is presumed for making the initial well-grounded determination. The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled as to these issues and there is no indication that there are other records available that would be pertinent to the veteran's appeal. In this regard, while the Board has considered the contentions of the veteran's representative that this case should be remanded to obtain additional clinical evidence and afford the veteran further examination, the Board finds that the evidentiary record is sufficient to equitably adjudicate the claims on appeal. It is noted parenthetically that despite contentions to the contrary by the veteran's representative, the record does contain clinical records from therapy performed by a John R. Burch. Thus, the Board concludes that the additional delay in the adjudication of the veteran's appeal as to these claims which would result from a remand to conduct the development requested by the veteran's representative would not be justified. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Left Lower Extremity Service connection is warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Service connection may also be established for that portion of a disability resulting from aggravation by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). With the above legal criteria in mind, the relevant contentions and evidence will be briefly summarized. It is asserted by and on behalf of the veteran that due to an altered gait pattern caused by the veteran's service- connected right ankle disability, the veteran developed a disability in the left lower extremity. The veteran has not asserted that service connection for a left lower extremity disability is warranted on a "direct" basis pursuant to 38 U.S.C.A. § 1131, to include as a result of aggravation under the provisions of 38 U.S.C.A. § 1153. In this regard, the pre-service medical history reflects surgery for a dislocation for the left ankle, but the left ankle was asymptomatic at the time of entrance to service (see February 1981 Report of Medical History). A review of the clinical evidence of record does not reveal a chronic current disability associated with the left lower extremity, although left knee pain was described with weight- bearing upon VA examination in March 1997. Thus, it is likely that there is not a current left lower extremity disability for which service connection can be granted, and in the absence of proof of a present disability, service connection cannot be granted. Brammer v. Derwinski,3 Vet App 223 (1992). Moreover, the physician who conducted the March 1997 VA examination remarked that he "did not see" that there was any relationship between an abnormal gait pattern and the left knee pain. A review of the remaining clinical evidence, while including medical opinions linking disabilities in the right hip and knee to an altered gait pattern for which service connection has been granted, does not reveal any competent evidence linking a current disability in the left lower extremity to the right ankle disability. The Board finds the "negative" objective clinical evidence that contains no competent clinical findings or opinions linking a current left lower extremity disability to the right ankle disability to be more probative than the "positive" evidence of record, which is limited to the written contentions and sworn testimony presented by and on behalf of the veteran asserting such an etiologic relationship. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Accordingly, as the probative weight of the "negative" evidence exceeds that of the "positive" evidence, the claim for service connection for a left lower extremity disability secondary to the right ankle disability must be denied. 38 C.F.R. § 3.310; Gilbert, 1 Vet. App. at 49. II. Right Ankle Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The "Amputation Rule" set forth in 38 C.F.R. § 4.68 provides that "[t]he combined rating for disabilities of an extremity shall not exceed the rating for the amputation at the elective level, were amputation to be performed." Amputations below the knee warrant, at most, a 40 percent disability rating. 38 C.F.R. § 4.71a, DC 5160-5173. Summarizing briefly the pertinent clinical evidence, the veteran sustained a dislocation of the right ankle during basic training. She was discharged from service due to this disability. Shortly after her separation from service, the veteran underwent surgery (transfer of the peroneus brevis tendon) for subtalar instability in the right ankle at a VA medical facility in January 1982. Thereafter, service connection for "right ankle instability, with tendon transfer" was granted by an April 1982 rating decision. This disability was rated as 30 percent disabling effective from December 15, 1981, (the first day following the veteran's discharge from service); 100 percent disabling from January 11, 1982, to January 31, 1982, pursuant to the provisions of 38 C.F.R. § 4.30 (convalescent ratings); and 10 percent disabling from February 1, 1982. The right ankle disability was rated under DC 5311 (disability of Muscle Group XI, posterior and lateral crural muscles). The 10 percent rating for the right ankle disability was continued until a March 1986 rating decision increased the rating to 20 percent effective from November 19, 1985; 100 percent effective from February 11, 1986, to March 31, 1986, under 38 C.F.R. § 4.30; and 20 percent effective from November 1985. The right ankle disability was rated under DC 5271 (limitation of ankle motion). This action followed receipt of reports from VA hospitalization in November 1985 describing a closed reduction with immobilization and splint of the right ankle. The rating was increased to 30 percent effective from February 4, 1988, by a September 1988 rating decision after the veteran was admitted to a VA medical facility in August 1988 for treatment of right ankle pain. The disability was rated under DC 5262 (impairment of the tibia and fibula). Following VA inpatient treatment in September and October 1988 that showed virtually no ability to move the right ankle even after physical therapy and a nerve block, a November 1988 rating decision increased the rating for the right ankle to 40 percent effective from August 2, 1988, to September 20, 1988; 100 percent effective from September 21, 1988, to September 30, 1988, pursuant to the provisions of 38 C.F.R. § 4.29 (ratings for service-connected disabilities requiring hospital treatment or observation); and 40 percent effective from November 1, 1988. The right ankle disability was rated under DC 5270 (ankle ankylosis). In March 1996, the veteran underwent a right Achilles tendon and peroneus longus lengthening; wide excision of the plantar fibromas with partial fasciectomy of the right foot, and the application of a posterior splint at a private medical facility. Thereafter, an October 1996 rating decision granted a temporary 100 percent rating under 38 C.F.R. § 4.30 from March 15, 1996, to May 31, 1996. The 40 percent rating was continued thereafter, and post-operative right foot Achilles tendon lengthening was added to the service-connected disability. A September 1997 rating decision which granted service connection for right hip and knee strain rated the right ankle disability by analogy to DC 5262 and added genu recurvatum to the service-connected disability. Following outpatient surgery (Gastrocnemius resection for Achilles lengthening and a talonavicular joint arthrodesis), a May 1998 rating decision assigned another temporary 100 percent disability rating under 38 C.F.R. § 4.30 for the period from April 17, 1998, to June 30, 1998. The 40 percent rating by analogy to DC 5262 was continued thereafter and has been in effect until the present time. The most recent VA examinations of the right ankle were conducted in July 1996 and March 1997. These examinations showed the service-connected right ankle disability to be manifested by instability, paresthesia, hypesthesia, and pain with dorsiflexion and plantar flexion. Motion in the right ankle was measured in March 1997 to 10 degrees of dorsiflexion, 40 degrees of plantar flexion, 10 degrees of inversion and 20 degrees of eversion. No atrophy or significant loss of strength in the right ankle was demonstrated upon either examination. Electrodiagnostic testing conducted in August 1996 showed no evidence of peripheral neuropathy but absent sensory compound action potential of the right sural nerve. Applying the pertinent legal criteria to the evidence summarized above, the "Amputation Rule" codified at 38 C.F.R. § 4.68 limits the evaluation in a particular extremity to the theoretical percentage available for amputation of that extremity. As applied to the instant case, 38 C.F.R. § 4.71a, DC 5160-5173 provides a maximum 40 percent combined rating for amputations below the knee. Accordingly, the currently assigned 40 percent rating for the right ankle disability under the provisions of 38 C.F.R. § 4.71a, DC 5262 is the highest assignable rating for the service-connected right ankle disability under the VA Schedule for Rating Disabilities. It is also noted that, irrespective of the "Amputation Rule," a rating in excess of 40 percent rating is not assignable under DC 5262, DC 5263 (genu recurvatum) or any diagnostic code pertaining to the rating of ankle disabilities codified at 38 C.F.R. § 4.71a, DC 5270-5274, as none of these diagnostic codes provide for ratings in excess of 40 percent. On this basis, the Board finds that an increased schedular evaluation is not warranted, and that the 40 percent evaluation for the right ankle disability is appropriate. Also considered by the Board were the provisions of 38 C.F.R. § 3.321(b)(1), which state that when the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for her service-connected disabilities, an extraschedular evaluation will be assigned. To this end, the Board notes that marked interference with employment due to the veteran's service-connected right ankle disability is not demonstrated, nor is there any other evidence that this condition involves such disability that an extraschedular rating would be warranted under the provisions of 38 C.F.R. § 3.321(b)(1). In finding that an extraschedular rating is not warranted, the Board has considered the "positive" evidence represented by the assertions and testimony presented by the veteran with respect to the severity of the right ankle disability, as well as the reports from inpatient and outpatient hospital visits for treatment of the right ankle disability from 1982 to 1998. However, none of this treatment has involved particularly extensive surgery or surgical complications, and within days of the most recent outpatient surgery in April 1998, X-rays showed good apposition at the talonavicular joint and a good position of the arch. No surgical complications were reported at that time, and the veteran was said to be "doing well." A private medical report dated in May 1998 also indicated the veteran was doing well. In short, therefore, the Board has concluded that, if not precluded by the "Amputation Rule," the "negative" evidence weighing against the assignment of an extraschedular rating nonetheless outweighs the "positive" evidence in favor of such a rating. Accordingly, entitlement to an increased rating for the service-connected right ankle disability is also not warranted on an extraschedular basis. 38 C.F.R. § 3.321(b)(1); Gilbert, 1 Vet. App. at 49. Loss of use of the Right Foot The term "loss of use" of a foot is defined by 38 C.F.R. § 3.350(a)(2) as that condition where no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining functioning, such as balance, propulsion, etc., could be accomplished equally well by an amputation stump with prosthesis. Examples under 38 C.F.R. §§ 3.350(a)(2) and 4.63 which constitute loss of use of a foot are extremely unfavorable ankylosis of the knee, or complete ankylosis of two major joints of an extremity, or shortening of the lower extremity of 3 1/2 inches or more. Also considered as loss of use of a foot under 38 C.F.R. § 3.350(a)(2) is complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop, accompanied by characteristic organic changes, including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of this nerve. Under 38 C.F.R. § 4.124a, DC 8521, complete paralysis also encompasses foot drop and slight droop of the first phalanges of all toes, an inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, loss of abduction of the foot, weakened adduction of the foot, and anesthesia covering the entire dorsum of the foot and toes. Applying the pertinent legal criteria to the clinical evidence summarized above, the evidence, while demonstrating a significant if not severe disability in the right ankle, does not in the opinion of the Board contain clinical findings from which it could reasonably be concluded that the veteran has service-connected disability that results in any of the examples or criteria listed under 38 C.F.R. § 3.350(a)(2) such as "complete ankylosis of two major joints of an extremity," "extremely unfavorable ankylosis of the knee," or "shortening of the lower extremity of 3 1/2 inches or more. Moreover, "complete paralysis of the external popliteal (common peroneal) nerve and consequent foot drop" is not demonstrated. In short, there is nothing of record to suggest that the disability picture associated with the right ankle equates with the severe level of disability required for a finding of "loss of use" of a foot. It is noted that there is significant limitation of the right ankle as is evidenced by the 40 percent rating. While there is limitation of motion, it is not shown by the evidence on file that the appellant is unable to use the foot for ambulation or for balance. It making the above determination, the Board notes that the findings with regard to motion, strength, sensation and reflexes in the right foot shown by the July 1996 and March 1997 VA examinations and August 1996 electrodiagnostic testing were not reflective of such disability as to equate with "loss of use" as that term is defined by the regulatory provisions discussed above. Also considered in making this determination were the April and May 1998 private medical reports indicating that the veteran was progressing well following the April 1998 VA outpatient surgery. Thus, while the Board has carefully considered the contentions and testimony submitted by and on behalf of the veteran, the controlling factor in the denial of the veteran's claim is the lack of evidence reasonably suggestive of "loss of use" of the right foot due to service-connected disability. As the governing provisions of 38 C.F.R. §§ 3.350(a)(2) and 4.63 require a showing of such service-connected disability, the claim for special monthly compensation for loss of use of the foot must be denied. Entitlement to a temporary 100 percent rating under 38 C.F.R. § 4.30 for the period prior to March 15, 1996 A total disability rating will be assigned when it is established that a service-connected disability required a period of convalescence following inpatient or outpatient hospitalization for a surgical procedure which resulted in the following: (1) at least one month of convalescence; (2) surgery which resulted in severe postoperative residuals, such as incompletely healed surgical wounds, stumps, or recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weightbearing prohibited); or (3) immobilization by cast, without surgery, of one or more major joints. 38 C.F.R. § 4.30(a) (1999). It has been contended by and on behalf of the veteran that entitlement to a temporary 100 percent rating under 38 C.F.R. § 4.30 for the period prior to March 15, 1996, is warranted under the provisions of 38 C.F.R. § 4.30(a)(3) on the basis of a December 1995 conclusion by Robert M. Bell, D.P.M., that he would not immobilize the veteran because she had reflex sympathetic dystrophy (RSD) in the right foot. As contended by the veteran's representative, "[t]he cast should not be seen as requisite to the matter." It is also contended that the sworn testimony presented by the veteran at her March 1997 asserting that the veteran could not bear weight on her right ankle following an injury sustained after she left her shower on November 27, 1995, warrants entitlement to the benefits sought. While the Board has carefully considered the argument of the veteran's representative, the pertinent regulatory provisions are clear in that entitlement to the benefits sought requires either evidence of surgery or immobilization by cast. Thus, because the surgery in question following the November 1995 right ankle injury was performed on March 15, 1996, and there is no evidence suggesting that there was surgical treatment or that the right ankle was immobilized by cast for the period from the November 1995 injury to the March 1996 surgery, the claim must be denied under 38 C.F.R. § 4.30. A review of the controlling regulatory criteria does not reveal an exception that would encompass the factual circumstances in this case emphasized by the veteran's representative. The Board is bound by the VA's regulations. 38 U.S.C.A. § 7104. It is also noted parenthetically that while the disability in the right ankle during the time in question was admittedly significant, it is not clear from the clinical evidence dated from the November 1995 injury to the March 1996 surgery that the right ankle disability was so severe as to equate with a total, or 100 percent rating, or to render interference with employment. In this regard, a bone scan and electrodiagnostic testing conducted during this period did not reveal any significant deficits in the right ankle. ORDER Service connection for a left lower extremity disability secondary to the service-connected right ankle disability is denied. Entitlement to a rating in excess of 40 percent for a right ankle disability is denied. Entitlement to special monthly compensation for loss of use of the right foot is denied. Entitlement to a temporary total rating for convalescence under the provisions of 38 C.F.R. § 4.30 for the period prior to March 15, 1996, is denied. REMAND As to the remaining issue, it is noted that service connection for a back disorder was denied on a primary basis by Board decision of June 1984. By Board decision of October 1985, it was noted that there was no new and material evidence to reopen the claim for service connection for a back disorder. This is the last final denial of the issue on any basis. It has been contended by the veteran's representative that there are VA records from 1982 that should be obtained as pertinent to the back issue. In view of this contention, and the citations attached thereto, the undersigned agreed. In addition, the veteran contends that service connection for a back disability is warranted on a "secondary" basis as a result of an altered gait pattern caused by the service- connected right ankle disability. Some support for this conclusion is contained in a clinical report of Robert M. Canon, M.D., dated November 13, 1995. Also of record in this regard is an inconclusive opinion following the July 1996 VA neurological examination. Accordingly, the Board will direct the RO upon remand to obtain a medical opinion concerning the relationship between the service-connected right ankle disability and a back disability. This action will also afford the veteran the benefit of due process, as the RO has not explicitly addressed the assertion that a back disability is secondary to the right ankle disability, or Allen v. Brown, 7 Vet. App. 439, 448 (1995), which held that service connection may be established for that portion of a disability that results from aggravation by a service- connected disability. The VA has an obligation to consider inferred, intertwined, or expressly raised issues. See e.g., Harris v. Derwinski, 1 Vet. App. 180 (1991); EF v. Derwinski, 1 Vet. App. 324 (1991). As this matter is otherwise in need of development, the issue should be considered following the other requested development. The adjudication of this matter by the RO will avoid any potential prejudice to the veteran which would result from initial adjudication of this matter by the Board. Bernard v. Brown, 4 Vet. App. 384, 393 (1993) O.G.C. Precedents 6-92 and 16-92, 57 Fed.Reg. 49744 and 49747 (1992). For the reasons stated above, this case REMANDED for the following development: 1. The RO should attempt to obtain copies of all medical records for the period of hospitalization from January 1982. Records obtained should include nurses' notes, doctors' orders, and any records of examinations of laboratory studies conducted. If records can not be obtained for some reason, that reason should be made clear in the claims folder. 2. The veteran is to be afforded a VA examination that includes an opinion as to the etiologic relationship, if any, between an altered gait pattern caused by the service-connected right ankle (and possibly knee) disability and a back disability. This opinion should include consideration of, pursuant to Allen, whether there is any portion of a back disability that is the result of aggravation by the service-connected right ankle disability. The claims file is to be made available to the examiner. 3. Following the development requested above, the RO is to adjudicate the issue of whether new and material evidence has been presented to reopen the claim for service connection for a back disability and/or the issue of secondary service connection. If the decision remains adverse to the veteran, the RO is to issue a supplemental statement of the case that documents consideration of the clinical report from Dr. Canon dated November 13, 1995, as well as the holding in Allen. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). The purpose of this REMAND is to assist the veteran in the development of her appeal, and the Board does not intimate an opinion, either legal or factual, as to the ultimate disposition of the issue addressed in this REMAND. No action is required of the veteran until she is notified. This claim must be afforded expeditious treatment by the RO. 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 The Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and Statutory Notes). In addition, VBA's Adjudication Procedure Manual, M21-1, Part IV, directs the ROs to provide expeditious handling of all cases that have been remanded by the Board and the Court. See M21-1, Part IV, paras. 8.44- 8.45 and 38.02-38.03. MICHAEL D. LYON Member, Board of Veterans' Appeals