Citation Nr: 0003094 Decision Date: 02/08/00 Archive Date: 02/15/00 DOCKET NO. 95-22 788 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a compensable evaluation for bilateral hearing loss. 2. Entitlement to an evaluation in excess of 20 percent for residuals of shell fragment wounds of the left knee and calf. REPRESENTATION Appellant represented by: California Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. K. Enferadi, Associate Counsel INTRODUCTION The veteran had active service from March 1968 to March 1970. The matter of an increased evaluation for residuals of shell fragment wounds of the left knee and calf arises before the Board of Veterans' Appeals (Board) from a December 1994 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) that continued a 10 percent evaluation effective from March 20, 1970. During the pendency of this appeal, the RO granted a 20 percent evaluation effective from September 26, 1994, the date the veteran claimed increased disability. However, since the rating criteria provide for a higher evaluation for this disability, the appeal is continued. Where there is no clearly expressed intent to limit an appeal, the RO is required to consider entitlement to all available ratings for that condition. AB v. Brown, 6 Vet. App. 35 (1993). As to the matter of entitlement to a compensable rating for service-connected bilateral hearing loss, this issue is before the Board from a Hearing Officer's decision dated in October 1995, at which time service connection for the veteran's bilateral hearing loss disability was granted and assigned a zero percent evaluation. The veteran failed to appear for a previously scheduled hearing before a Member of the Board without presenting evidence of good cause. Thus, the Board has proceeded as if the veteran had withdrawn such request. 38 C.F.R. § 20.702(d) (1999). A review of the record reflects that service connection was initially granted in July 1970 for several disabilities, including residuals of a shell fragment wound of the left thigh and posterior knee. By rating action of September 1970, the disabilities were reclassified as shell fragment wounds of the left knee and calf, assigned a 10 percent rating, and a shell fragment wound of the left thigh, assigned a noncompensable evaluation. In a subsequent rating action of January 1971, the disability was characterized as a shell fragment wound of the right thigh. The subsequent rating actions have continued this classification. This matter is referred to the RO for any appropriate action. FINDINGS OF FACT 1. The veteran has level I hearing bilaterally. 2. The veteran's left knee and calf disability is manifested by no more than moderate disability, with a nontender, well healed scar. CONCLUSIONS OF LAW 1. The schedular criteria for a compensable evaluation for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R., Part 4, §§ 4.1, 4.7, 4.85, 4.87, Tables VI, VII, Diagnostic Code (1999). 2. The schedular criteria for an evaluation in excess of 20 percent for residuals of shell fragment wounds of the left knee and calf have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.56, 4.71, 4.73, Diagnostic Codes 5257-5311 (1999). REASONS AND BASES FOR FINDINGS AND CONCLUSION Background A review of the record reveals that the RO granted service connection for residuals of shell fragment wounds of the left thigh and knee in a rating decision dated in July 1970 and assigned a 10 percent evaluation effective from March 20, 1970 and granted service connection for residuals of shell fragment wounds of the left calf and assigned a zero percent evaluation also effective from March 20, 1970. Clinical entries dated in November 1968 reflect shell fragment wounds secondary to tripping a booby trap that affected the left thigh and popliteal fossa both above and below. During the veteran's separation examination dated in February 1970, the veteran indicated past problems with his left knee; the examiner noted that the veteran had shell fragment wounds in the left knee while in Vietnam and reported recurrent pain. At the time of that rating decision, the RO considered objective findings from VA examination conducted in July 1970, at which time the examiner noted that, in pertinent part, the veteran primarily complained of the shrapnel wound of the left knee. On examination, the examiner reported a well-healed one and one-half inch by one-third inch scar on the posterior surface of the left knee. The upper half of the scar was slightly depressed. Examination of the left knee was completely negative with no swelling, tenderness, or impairment. The diagnosis rendered was shrapnel wound of the left knee with metallic fragments. An x-ray study of the left knee conducted at that time confirmed those findings and disclosed that bony structures were intact. A private medical examination dated in September 1994 revealed complaints of hearing loss and pain and swelling in the left knee. The assessment rendered at that time was left knee pain with foreign body present, possible internal derangement, specifically medial meniscus tear. The examiner noted that the knee was tender to McMurray's test and that there some tenderness at the medial joint with minimal patella tenderness. Further noted is a negative anterior posterior drawer, stable to valgus and varus stress. A private orthopedic surgeon examined the veteran in September 1994, at which time the veteran complained of popping and persistent pain along the medial joint line and behind the patella. For the prior two-week period, the veteran stated that his knee had been swelling and giving away. Further, he reported that he could not sit with the knee bent for a long period of time. On examination, the examiner noted that the veteran walked without a limp and used no aids for walking. The calf circumference on the right measured at 40 centimeters and on the left at 41 centimeters. The knee circumference on the right was 39 centimeters and on the left measured at 39.7 centimeters. The veteran had full extension bilaterally and flexed at 135 degrees bilaterally. Further, the patella was nontender and the examiner noted that the veteran's knee was stable. There was tenderness in crepitance along the anterior medial joint line with no tenderness on palpation of the medial collateral ligament. The impression rendered was torn left medial meniscus. Also noted is possible cartilage damage as a result of the inservice injury. An x-ray study revealed metallic foreign body in the soft tissue posterior to the knee joint. An audiogram dated in September 1994 disclosed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 20 10 25 50 LEFT 20 15 10 70 85 During VA examination conducted in March 1995, the examiner reported the veteran's subjective complaints of instability in his left knee, noting that the knee gave out easily and that he occasionally used a cane. Also, the veteran complained of constant pain and occasional swelling. On examination, the examiner reported calf circumference on the right at 40 centimeters and on the left at 40 and one-half centimeters. Further, the examiner noted the presence of a depressed, nontender, nonadherent, surgical scar measuring at four centimeters by eight to nine millimeters located at the lateral aspect of the popliteal fossa. The patella was noted as normal in position and mobility was nontender. Also, the examiner reported that there was moderate laxity of the lateral collateral ligament. The range of motion was 140 degrees out of 140 degrees without pain or crepitation. The diagnosis rendered was status post- operative shell fragment wounds of the left knee with retained foreign body, scar, and ligament laxity. An x-ray study confirmed these findings and revealed no other significant bony or soft tissue abnormality. In VA audio examination dated in November 1995, an audiogram conducted revealed the following results: HERTZ 500 1000 2000 3000 4000 RIGHT 20 10 20 25 55 LEFT 20 20 10 75 95 Speech audiometry revealed speech recognition ability of 94 percent in both the right and left ears. A private medical doctor's statement dated in April 1996 reveals complaints of instability of the knee and increased hearing loss. The veteran reported at that time that he had fallen several times and was walking with a cane. On examination, the examiner noted pain with varus stress with marked gapping of the lateral knee joint and tenderness laterally. Flexion was decreased, there was some patellar grind, and Lachman's test was stable. The assessment rendered was left knee internal derangement worsening and hearing loss with tinnitus. The examiner recommended that the veteran keep using the cane and stated that there was a possible need for a hinge brace. In a statement from that physician to VA, the doctor noted that the severity of the veteran's knee problem had increased to include limitation of motion. Further, the doctor stated that there was a strain or tear of the lateral collateral ligament with continued pain. In June 1996, the veteran underwent a Compensation and Pension Examination for complaints of the left knee giving out with ambulation, pain, weakness, and occasional locking, and swelling in the lower left extremity. On examination, the examiner noted no swelling or deformity in the left calf and no evidence of subluxation or lateral instability of the knee. Also, there was no loose motion or any evidence of malunion of the left lower extremity. The range of motion of the knee showed extension on the left of minus nine degrees and on the right of zero degrees. Flexion on the left was 91 degrees and on the right 13 degrees. There was no apparent adhesion or damage to the tendon, bone, or joint at the site of the injury. Further, there was no apparent loss of strength. The diagnosis rendered was shrapnel injury to the left knee and calf with pain. An x-ray study revealed no fracture or dislocation with a metallic foreign body in the left popliteal area. A report from VA examination of the joints dated in October 1998 reveals the veteran's past medical history with respect to his inservice injury to the left knee and calf. Subjective complaints included pain inside the knee about 80 percent of the time that increased on flexion or use, such as walking or riding horseback required for his work. Further, the veteran stated that a flare-up of pain reportedly lasts three to four hours and occurs four days out of the week. He also indicated that the pain decreased when he took aspirin. The veteran also complained of swelling and weakness when he walks even one mile. Further, the veteran stated that his knee buckles and that he has fallen multiple times over the past couple of years. He also reported that there is some catching of the knee that occurs when he first stands up, which has increased in frequency over the years. When riding a horse or walking an excessive amount, the veteran reported that he uses a brace. He reported that the knee tended to pop out laterally. On examination, the examiner noted in the left posterior knee a faint, light, couple centimeter, nontender, non- disfiguring, healed scar. Diffuse tenderness was noted above the medial tibial plateau. There was no erythema, warmth, swelling, effusion, or deformity. Patellar tracking was normal and patellar grind was smooth without crepitus. Range of motion included flexion actively at 100 and passively at 122 with pain. The knee extended 10 degrees. Further, the examiner noted that when attempts were made to test laxity, there was some guarding; however, no laxity was detected with Lachman, anterior, posterior drawer and when testing for medial and lateral laxity. Further, McMurray's test was negative. There was medial quad atrophy. Circumference of the left thigh was 41 centimeters compared to 42 centimeters on the right. The strength of the knee extension and flexion was about four plus. Ankle dorsiflexion was neutral and Romberg's test was negative. Initially, the examiner stated that the veteran had troubles with tandem walking and stood with his left knee slightly flexed. Ambulation was with a single point cane and was slightly antalgic on the left. The veteran's heel touched the floor when he ambulated. The diagnosis rendered was residuals of shell fragment wounds of the left knee. The report from VA audiometry evaluation conducted in October 1998 reveals the following results: 500 1000 2000 3000 4000 Right 10 10 05 25 60 Left 10 15 15 75 100 As to the right ear, the average decibels were 25 and on the left side, the average was 51 decibels. Speech recognition scores were 94 percent for the right ear and 80 percent for the left ear. Analysis The veteran's issues currently before the Board are entitlement to a compensable evaluation for bilateral hearing loss and entitlement to an evaluation in excess of 20 percent for residuals of shell fragment wounds of the left knee and calf. These matters will be analyzed separated below. Bilateral hearing loss As to the veteran's claim of entitlement to a compensable evaluation for bilateral hearing loss, a claim placed in appellate status by disagreement with the initial rating award and not yet ultimately resolved is an original claim as opposed to a new claim for increase. Fenderson v. West, 12 Vet. App. 119 (1999). Thus, in contrast to the holding in Francisco v. Brown, where the United States Court of Veterans Appeals (Court) held that the present level of disability is of main concern in those cases where entitlement to compensation has already been established and an increase in evaluation is at issue, 38 C.F.R. § 4.2; see also Francisco v. Brown, 7 Vet. App. 55, 58 (1994), under Fenderson, such rule is not applicable to a disability rating assignment that follows the initial grant of service connection. Fenderson at 119. Pursuant to Fenderson, the record as a whole is reviewed in arriving at a final determination. Id. The assignment of disability ratings in hearing loss cases is a mechanical application of the rating criteria. Specifically, the Court held that the assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the numeric designations assigned upon completion of audiometry evaluations. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). Schedular criteria referable to hearing loss provide that hearing loss will be evaluated based on organic impairment of hearing acuity as measured by results of controlled speech discrimination tests in tandem with average puretone threshold levels obtained from audiometry tests. See 38 C.F.R. § 4.85, 4.87, Table VI (1999). To evaluate the degree of disability for bilateral service-connected defective hearing, the revised rating schedule establishes 11 auditory acuity levels designated from level I (for essentially normal acuity) to level XI (for profound deafness). 38 C.F.R. § 4.85, Codes 6100 to 6110 (1999). There are various combinations where hearing loss warrants a 10 percent evaluation, for example, where hearing impairment value bilaterally is I (better ear) and X (poorer ear). 38 C.F.R. § 4.85, Part 4, Codes 6100, 6101. In cases where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria established for that rating. 38 C.F.R. § 4.7 (1999). Nonetheless, in this veteran's case, bilateral hearing loss is noncompensable where the puretone threshold average in the right ear is 25 decibels with 94 percent speech recognition, and in the left ear, the puretone threshold is 51 decibels with speech recognition of 80 percent. 38 C.F.R. § 4.85, Diagnostic Code 6100. In view of the level I hearing demonstrated bilaterally, the clinical data and evidence in this case do not support a finding that the veteran's hearing loss merits a compensable evaluation. As stated above, in order to warrant a compensable rating, the veteran's hearing loss would have to reach a higher level of impairment. Accordingly, a noncompensable evaluation in this veteran's case is appropriate. 38 U.S.C.A. § 1155, 5107(b); 38 C.F.R. § 4.1, 4.85, Diagnostic Code 6100, Table IV. Thus, given the above results, the current zero percent rating is appropriate. In determining the extent of the veteran's bilateral hearing loss disability, the Board has considered all potentially applicable regulations and laws relevant to the veteran's assertions and has provided the foregoing reasons and bases in support of its conclusion. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Left knee and calf disability With respect to the veteran's left knee and calf disability, the Board notes that the veteran's claim is well grounded in light of his indications of increased disability. 38 U.S.C.A. § 5107(a) (West 1991); Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). Disability evaluations are determined, as far as practicable, upon the average impairment of earning capacity attributable to specific injuries or combination of injuries coincident with military service. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (1999). Each disability must be viewed in relation to its history with an emphasis placed on the limitation of activity imposed by that disability. 38 C.F.R. § 4.1. The degrees of disability contemplated in the evaluative rating process are considered adequate to compensate for loss of working time due to exacerbation or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Further, under 38 C.F.R. § 4.10 (1999), in cases of functional impairment, evaluations are to be based upon the lack of usefulness, and medical examiners must furnish a full description of the effects of the disability upon the veteran's ordinary activity; this requirement is in addition to the etiological, anatomical, pathological, and prognostic data required for ordinary medical classification. Additional factors to be considered include the reduction in a joint's normal excursion of movement on different planes. 38 C.F.R. § 4.45. Factors such as less movement than normal, more movement than normal, weakened movement, incoordination, pain on movement, swelling, or instability, are also to be considered. Id. The veteran's left knee and calf disability was formerly rated under Diagnostic Code 5311 related to muscle injuries to Group XI muscles. The rating criteria for muscle injuries were amended effective July 3, 1997. 62 Fed. Reg. No. 106, 30235-30240 (June 3, 1997) (codified at 38 C.F.R. §§ 4.55- 4.73 Diagnostic Codes 5301-5329; 38 C.F.R. §§ 4.47-4.54, 4.72 were removed and reserved). However, both the old and new relevant schedular rating criteria essentially provide that muscles injuries incurred by the veteran in service are rated based on the same criteria. 38 C.F.R. § 4.73, Diagnostic Code 5311. However, in a recent memorandum decision that has no precedential value, the Court indicated that the change in 38 C.F.R. § 4.55 involved a "substantive change" and that the version most favorable to the veteran must apply if the regulation changed after the veteran's claim was filed and before the administrative appeal process had been concluded. Hawkinson v. West, No. 97-1887 (March 19, 1999); see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). Such is the case herein. The amended regulations for Group XI functions, Diagnostic Code 5311 provides the following: function: propulsion, plantar flexion of foot (1); stabilization of arch (2, 3); flexion of toes (4, 5); flexion of knee (6). Posterior and lateral crural muscles, and muscles of the calf: (1) Triceps surae (gastrocnemius and soleus); (2) tibialis posterior; (3) peroneus lingus; (4) peroneus brevis; (5) flexor hallucis longus; (6) flexor digitorum longus; (7) popliteus; (8) plantaris. For a 20 percent rating under this diagnostic code, the veteran must provide evidence of moderately severe muscle injury. A 30 percent evaluation is consistent with severe muscle injury. Further, similar guidelines are found in the former and recently revised regulations at 38 C.F.R. § 4.56(d)(3)(4) (1999). Under both the prior and current version of the rating schedule a moderately severe muscle wound is objectively manifested by entrance and (if present) exit scars which are relatively large and are so situated as to indicate track of missile through important muscle groups. Indications on palpation reveal moderate loss of deep fascia, moderate loss of muscle substance or moderate loss of normal firm resistance of muscles as compared with the sound side. Tests of strength and endurance of muscle groups involved (compared with sound side) give positive evidence of marked or moderately severe loss. 38 C.F.R. § 4.56(c). A moderate muscle wound is objectively manifested by entrance and (if present) exit scars linear or relatively small and so situated as to indicate relatively short track of missile through muscle tissue; signs of moderate loss of deep fascia or muscle tonus and of definite weakness or fatigue in comparative test. 38 C.F.R. § 4.56(b). A severe disability of the muscles is manifested by extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in track of missile. X-ray findings may show minute multiple scattered foreign bodies indicating spread of intermuscular trauma. Palpation demonstrates moderate or extensive loss of deep fascia or muscle substance. Essentially, the muscles do not swell and harden normally in contraction. Tests of strength or endurance compared with the sound side or of coordinated movements show positive evidence of severe impairment of function. In electrical tests, reaction of degeneration is not present but a diminished excitability to faradic current compared with the sound side may be present. Also, visible atrophy may or may not be visible. Adaptive contraction of opposing group of muscles, if present, indicates severity. Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum, or vertebrae, with epithelial sealing over the bone without true skin covering, in an area where bone is normally protected by muscle indicates the severe type. The criteria of 38 C.F.R. § 4.56 are only guidelines for evaluating muscle injuries from gunshot wounds or other trauma, and the criteria are to be considered with all factors in the individual case. Robertson v. Brown, 5 Vet. App. 70 (1993). The veteran's knee and calf disability initially was rated under Diagnostic Code 5311 due to shrapnel wounds sustained at the time the veteran tripped a booby trap, causing an explosion that injured his left extremity. However, pathology associated with the shell fragment wounds of the left knee and calf are not compatible with the criteria for severe disability rated at 30 percent. Id. Overall, the evidence of record does not substantiate impairment demonstrative of extensive ragged, depressed, and adherent scars of skin so situated as to indicate wide damage to muscle groups in track of missile. Further, x-ray findings of record do not reveal multiple scattered foreign bodies indicative of intermuscular trauma. Moreover, the veteran's left knee and calf disability is not productive of moderate or extensive loss of deep fascia or muscle substance. For example, as noted above during the October 1998 joints examination, the examiner observed that the veteran's left extremity demonstrated almost full strength, there was no effusion, warmth, swelling, or deformity. Moreover, the scarring of the left posterior knee was faint, light, nontender, non-disfiguring, and well healed. Thus, in this respect, the veteran's left knee and calf disability does not warrant a 30 percent rating under Diagnostic Code 5311. Id. Nonetheless, the Board points out that in the rating decision dated in May 1995, the RO evaluated the veteran's left knee and calf disability pursuant to the rating criteria associated with Diagnostic Code 5257 for impairment of the knee with recurrent subluxation or lateral instability. Under Diagnostic Code 5257, a 10 percent evaluation is warranted for slight impairment, a 20 percent rating is merited for moderate impairment, and the maximum of 30 percent is assigned for severe impairment. 38 C.F.R. § 4.71(a), Diagnostic Code 5257 (1999). The assignment of a particular diagnostic code is "completely dependent on the facts of a specific case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis, and demonstrated symptomatology. A change in the diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992); see also Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995). In this case, the RO's evaluation under Diagnostic Code 5257 was based on clinical findings from the prior VA examination conducted in March 1995. Essentially, the veteran's left knee and calf disability was productive of moderate laxity without any other bony or tissue abnormality. Thus, a 20 percent evaluation was assigned. However, in light of clinical findings during the most recent VA joints examination conducted in October 1998, wherein the examiner reported no evidence of laxity, effusion, swelling, or deformity, the veteran's left knee and calf disability is not productive of impairment to the extent required for a 30 percent evaluation. 38 C.F.R. § 4.71, Diagnostic Code 5257. Overall, the veteran has not provided competent medical evidence of severe symptomatology. Although the examiner noted some guarding on attempts to test laxity of the left extremity, it did not appear from all tests conducted that, in fact, there was laxity of the left knee and calf. Further, on a scale of one to five, strength was measured at four plus. Therefore, in view of such clinical findings, the veteran's residuals of shell fragment wounds of the left knee and calf does not merit the next higher evaluation under Diagnostic Code 5257. Id. Additionally, pursuant to the rating codes relative to limitation of motion of the knee and calf, the veteran has not submitted competent medical evidence of sufficient limitation in his range of motion of the left extremity so as to merit an evaluation greater than 20 percent. In the report from the 1998 VA examination, the examiner noted a range of motion of flexion actively at 100 degrees and passively at 122 with pain. The knee extended 10 degrees. Under Diagnostic Code 5260 for limitation of flexion, upon showing flexion limited to 30 degrees, a 20 percent evaluation is warranted, and a maximum of 30 percent is merited for flexion limited to 15 degrees. 38 C.F.R. § 4.71(a), Diagnostic Code 5260. In view of these rating criteria and in light of the 1998 clinical data, the veteran's left knee and calf disability does not warrant a 30 percent evaluation pursuant to the provisions of Diagnostic Code 5260. Id. Moreover, under Diagnostic Code 5261, where there is evidence of extension limited to 15 degrees, a 20 percent evaluation is warranted. Further, with extension limited to 20 degrees, a rating of 30 percent is merited. 38 C.F.R. § 4.71(a), Diagnostic Code 5261. Given that the veteran's extension was reportedly limited to 10 degrees, there is no avenue under Diagnostic Code 5261 for an evaluation in excess of the current 20 percent. Id. In spite of the veteran's contentions overall of increased disability and severity that warrants an increased evaluation, the veteran has not provided competent evidence in support of his assertions. A lay person is not competent to make a medical diagnosis or render medical opinions as to the severity of a service-connected disability, absent evidence otherwise. See Espiritu v. Derwinski, 2 Vet. App. 494, 494 (1992). Moreover, as to speed, incoordination, and endurance, the examiner noted that these elements had only minimal effect on the functional loss of the veteran's left knee and calf. The veteran's ambulation was limited by knee pain; however, the veteran's gait was only slightly antalgic. Further, strength was generally good with only slight medial quad atrophy. Moreover, the veteran's coordination was slightly impaired with tandem gait. Thus, although these factors have been considered, there is a lack of competent evidence in this case to substantiate an increased evaluation. 38 C.F.R. §§ 4.10, 4.45. Therefore, based on the evidence of record, the Board must deny the veteran's claim. Essentially, although VA law requires that all reasonable doubt as to any relevant matter be resolved in favor of the veteran, the Board must conclude that upon review of the record in its entirety, objective findings and clinical data, in fact, do not support an increased evaluation in excess of 20 percent for the veteran's residuals of shell fragment wounds of the left knee and calf. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. ORDER Entitlement to a compensable evaluation for bilateral hearing loss is denied. Entitlement to an evaluation in excess of 20 percent for residuals of shell fragment wounds of the left knee and calf is denied. V. L. Jordan Member, Board of Veterans' Appeals