Tuesday, August 2, 2011

Single Judge Application, Lack of Notation of Medical Condition, Buczynski v. Shinseki, 24 Vet.App. 221, 226-27 (2011)

Excerpt from decision below:
"Buczynski v. Shinseki, 24 Vet.App. 221, 226-27 (2011) (where there is a lack of notation of medical condition or symptoms where such notation would normally be expected, the Board may consider this as evidence that the condition or symptoms did not exist)."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 10-0109
TONY L. KITTS, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before LANCE, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
LANCE, Judge: The appellant, Tony L. Kitts, through counsel, appeals a
January 4, 2010,
Board of Veterans' Appeals (Board) decision that denied his claims for
disability compensation
based on service connection for a bilateral knee disability and for
hypertension, headaches, and a
low back disorder, all to include as secondary to the bilateral knee
disability. Record (R.) at 3-20.
Single-judge disposition is appropriate. See Frankel v. Derwinski, 1 Vet.
App. 23, 25-26 (1990).
This appeal is timely, and the Court has jurisdiction over the case
pursuant to 38 U.S.C. §§ 7252(a)
and 7266. For the reasons that follow, the Court will affirm the January 4,
2010, decision.
I. FACTS
The appellant served in the U.S. Army for five months, from February 1980
through July
1980. R. at 478. In March 1980, he injured his right knee when he ran into
a wire, but did not report
any injury to his left knee as a result of this incident. R. at 629, 693,
694, 695, 707, 708.
Over 21 years later, in December 2001, after a motor vehicle accident, an
x-ray was taken
of the appellant's right tibia and fibula, which did not indicate any
injuries. R. at 161, 638. Five
years later, in July 2006, a medical examiner noted "[v]ery little
degenerative changes [in either
knee]." R. at 306. That same month, the appellant filed an application
with VA for service


connection for a bilateral knee condition and for headaches, a lower back
condition, and high blood
pressure, all to include as secondary to his knee condition. R. at 675-88.
In August 2006, the
appellant reported to a doctor that he has had chronic left knee pain
since 1980. R. at 343-46.
In September 2007, VA denied the appellant's claims and he appealed. R. at
526-64, 568-76.
During a Board hearing in November 2008, the appellant's representative
stated that the appellant
"fell down a flight of stairs when his right knee gave out. That's why the
left knee would be
considered secondary to the right knee condition." R. at 506. The same
month, a VA examiner
noted the appellant had a history of bilateral knee pain secondary to a
medial meniscal tear sustained
in service, but the examiner did not explain how he came to this
conclusion. R. at 141.
In January 2009, the Board remanded the appellant's claims for further
development and, in
March 2009, he received a VA examination for both knees. R. at 155-62, 490-
97. During the
examination, the appellant reported that his right knee had gotten better
since service and that he did
not have a problem with his right knee at that time. R. at 156, 161. The
diagnosis was "mild
degenerative joint disease [DJD] to right knee with no functional
impairments." R. at 159. The
examiner opined that the appellant's bilateral mild DJD of the knees was
likely caused by aging and
not likely caused by the minor injury he experienced during his military
service. R. at 161. The
appellant later submitted a May 2009 report from Dr. Gregory Alba, a
private physician, who stated
that the appellant "is disabled secondary to an accident which occurred in
the military . . . According
to the records, patient's injury did occur in the military while patient
was running in the dark and ran
into a cable that supported a telephone pole, thus injuring both knees." R.
at 61-62.
In January 2010, the Board issued the decision on appeal. R. at 3-20. The
Board found that
the appellant did not injure his left knee when he ran into a wire in
service, based on the
contemporaneous service medical records (SMRs) indicating that the
appellantonlyinjuredhis right
knee. R. at 16. The Board also relied on the March 2009 VA medical opinion
that the appellant's
bilateral knee condition is likely due to aging and not likely related to
service. R. at 16. The Board
analyzed the appellant's three other claims in regard to both direct and
secondary service connection,
but concluded that none of these disabilities was incurred in or
aggravated by active service nor
could service incurrence be presumed. R. at 6. Accordingly, the Board
denied all the claims.
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II. ANALYSIS
A. Bilateral Knee Disability
In regard to his bilateral knee disability, the appellant argues that the
Board should have
analyzed whether he was entitled to service connection under a theory of
continuity of
symptomatology. Appellant's Brief (Br.) at 7. He asserts that the Board's
failure in this regard
renders the Board's statement of reasons or bases inadequate. Appellant's
Br. at 7-8.
Establishing service connection generally requires medical or, in certain
circumstances, lay
evidence of (1) a current disability; (2) in-service incurrence or
aggravation of a disease or injury;
and (3) a nexus between the claimed in-service disease or injury and the
present disability. See
Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Hickson v. West, 12
Vet.App. 247, 253
(1999); Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)
(table); 38 C.F.R. § 3.303 (2011). Service connection may also be
established by showing
continuity of symptomatology, which requires a claimant to demonstrate (1)
that a condition was
"noted" during service; (2) evidence of postservice continuity of the same
symptomatology; and (3)
medical or, in certain circumstances, lay evidence of a nexus between the
present disability and the
postservice symptomatology. 38 C.F.R. § 3.303(b); see Barr v. Nicholson,
21 Vet.App. 303, 307
(2007); see also Davidson, 581 F.3d at 1316; Jandreau v. Nicholson, 492 F.
3d 1372, 1377 (Fed. Cir.
2007) (whether lay evidence is competent and sufficient in a particular
case is a factual issue to be
addressed by the Board); Charles v. Principi, 16 Vet.App. 370, 374 (2002) (
appellant is competent
to testify where symptoms are capable of lay observation); Layno v. Brown,
6 Vet.App. 465, 469
(1994) (lay testimony is competent to establish the presence of an
observable symptomatology and
"may provide sufficient support for a claim of service connection"). Under
the continuity of
symptomatology provision, "symptoms, not treatment, are the essence of any
evidence of continuity
of symptomatology." Savage v. Gober, 10 Vet.App. 488, 496 (1997).
In this case, the Board correctly determined that the appellant cannot
establish continuity of
symptomatology for his left knee because the evidence demonstrates that
his left knee condition was
not manifested during service and there is no demonstration of continuous
symptoms after service.
R. at 16. The appellant's SMRs clearly document that his in-service injury
was to his right knee, not
his left knee. R. at 629, 693, 694, 695, 707, 708. There is no evidence of
continuous symptoms of
knee pain in either knee until the appellant's statement in August 2006. R.
at 343-36. These
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statements occurred more than 25 years after the appellant's military
service and shortly after he
filed his claim for disability compensation. R. at 343-46. The Board
properly weighed the evidence
and found that the contemporaneous medical evidence was more credible than
the appellant's
statements made more than 25 years later. R. at 14-17; see Buchanan v.
Nicholson, 451 F.3d 1331,
1336 (Fed. Cir. 2006) (when making credibility determination, Board may
weigh absence of
contemporaneous medical evidence against lay evidence of record); see also
BuczynskiNext Document v. Shinseki,
24 Vet.App. 221, 226-27 (2011) (where there is a lack of notation of
medical condition or symptoms
where such notation would normally be expected, the Board may consider
this as evidence that the
condition or symptoms did not exist). The Board correctly noted that the
appellant is competent to
testify as to observable symptoms such as knee pain, but also concluded
that such testimony is
irrelevant where the credibility of such statements has been properly
discounted. SeeBuchanan,451
F.3d at 1336; Barr, 21 Vet.App. at 307; Heuer v. Brown, 7 Vet.App. 379,
387 (1995) ("continuity
of symptomatology can aid in establishing service connection only in cases
where the 'condition
[was] noted during service (or in the presumptive period)'" quoting 38 C.F.
R. § 3.303(b)).
The Court agrees with the Secretary that the appellant has waived any
similar argument in
regard to his right knee disability because he has never alleged
continuity of symptomatology for
his right knee. See Secretary's Br. at 10, citing Hilkert v. West, 12 Vet.
App. 145, 151 (1999), aff'd
232 F.3d 908 (Fed. Cir. 2000) (table); Coker v. Nicholson, 19 Vet.App. 439,
442 (2006), rev'd on
other grounds sub nom. Coker v. Peake, 310 Fed. App'x 371 (Fed. Cir. 2008) (
per curiam order);
Carbino v. Gobert, 10 Vet.App. 507, 510 (1997). The Court also agrees that,
to the extent that the
Board may have erred by not addressing continuity of symptomatology for
the right kneesua sponte,
any such error would be harmless. See Shinseki v. Sanders, 129 S.Ct. 1696,
1704 (2009); see also
38 U.S.C. § 7261(b)(2) (requiring the Court to "take due account of the
rule of prejudicial error").
The appellant himself admitted to a March 2009 VA examiner that "his right
knee got better" after
service and that "his right knee isn't a problem." R. at 156, 161. Further,
the March 2009 VA
examiner pointed out that "there is no continuity of care for a right knee
condition dated after
military service except for a 2001 [motor vehicle accident] involving the
right knee [which] was
unremarkable." R. at 161, 638. Thus, the Board did not err by not
addressing continuity of
symptomatology for the right knee. See Robinson v. Mansfield, 21 Vet.App.
545, 552 (2008) (Board
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must "consider all issues raised either by the claimant or by the
evidence of record.") (citations
omitted)).
In its decision, the Board cited Espiritu v. Derwinski, 2 Vet.App. 492,
494-95 (1992), and
stated categorically that "the Veteran and his former representative are
laypersons without the
appropriate medical training or expertise, [therefore] they are not
competent to render probative (i.e.
persuasive) opinions on these medical matters." R. at 19. In this regard,
the Board stated the law
too narrowly. As noted above, the Board must consider, on a case-by-case
basis, the competence
and sufficiency of lay evidence. See Davidson and Jandreau, both supra.
However, any error the
Board may have made in this regard would be harmless because, in this case,
the Board assigned less
weight to the appellant's lay statements because it properly found them
not credible, not because it
may have erred in finding them not competent. See Sanders, supra.
B. Additional Arguments
The appellant's only argument in regard to his three other claims is that
they should be
remanded because they are inextricably intertwined with his claim for
service connection for a
bilateral knee disability. Appellant's Br. at 8; see 38 C.F.R. § 3.310(a) (
To be granted secondary
service connection, a disability must be "proximately due to, or the
result of, a service-connected
disease or injury."). However, the Court is affirming the Board's denial
of the bilateral knee
disability claim, which renders this argument moot. The Court notes that
the Board thoroughly
discussed these three claims in regard to both direct and secondary
service connection and provided
an adequate statement of the reasons or bases for its findings and
conclusions. R. at 17-19.
At the end of his brief, the appellant makes a vague and unsupported
allegation that the
Secretary has failed to comply with his duty to assist the appellant.
Appellant's Br. at 8. This vague
assertion is insufficient to carry the appellant's burden. See Locklear v.
Nicholson, 20 Vet.App. 410,
416-17 (2006) (Court unable to find error when arguments are "far too
terse to warrant detailed
analysis by the Court"); Coker, 19 Vet.App. at 442 ("Court requires that
an appellant plead with
some particularity the allegation of error so that the Court is able to
review and assess the validity
of the appellant's arguments."). The Court detects no error in the Board's
conclusion that VA has
fully complied with its duty to assist the appellant. R. at 8.
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C. Compliance with Court Rules of Practice and Procedure
In his initial brief, the appellant "concedes that the statement of the
facts contained in the
Board's January 4, 2010, decision . . . are [sic] incorporated by
reference herein." Appellant's Brief
at 2. The appellant is not permitted to omit a Statement of Facts from his
brief in this manner. The
rules of the Court require that the appellant's brief must include "a
statement of the case, showing
. . . the facts relevant to the issues, with appropriate page references
to the Record Before the
Agency." U.S. VET. APP. R. 28(a).
III. CONCLUSION
After consideration of the appellant's and the Secretary's briefs, and a
review of the record,
the Board's January 4, 2010, decision is AFFIRMED.
DATED: July 29, 2011
Copies to:
Peter J. Meadows, Esq.
VA General Counsel (027)
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Single Judge Application, Challenging a Fiduciary, Freeman, 24 Vet.App. (2011)

Excerpt from decision below:
"In Freeman, the Court addressed whether the Secretary's authority to appoint a fiduciary pursuant to 38 U.S.C. § 5502 was a matter reviewable by this
Court. 24 Vet.App. 404(2011). The Court answered this question in the affirmative: "We therefore conclude that section 5502 falls within the congressional grant of jurisdiction given to the Board and to this Court in the [Veterans' Judicial Review Act of 1988, Pub. L. 100-687, 102 Stat. 4105]." Id. at 416; but see id. at 415 (recognizing that "[o]ther provisions of [section] 5502 contain language that indicates that the Secretary has 'discretion' over acts involving suspected improper acts by a fiduciary," which may be outside the Board's and this Court's jurisdiction).

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"Therefore, to the extent that the petitioners seek to challenge VA's
selection of GBC as the fiduciary for the veteran, the Court's decision in Freeman clearly establishes an administrative remedy to address their grievance. Id. at 413 (holding that the Secretary is "compelled to recognize" a Notice of Disagreement concerning VA's selection of a VA fiduciary).

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"To the extent that the petitioners seek an accounting of the veteran's funds paid to the VA-appointed fiduciary, GBC, the Court notes that this request is contingent upon the propriety of the appointment of GBC, which will be addressed by the Agency in accordance with Freeman."
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11-1605
WILLIAM L. EVANS, ET AL., PETITIONERS,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, ET AL., RESPONDENTS.

Before SCHOELEN, Judge.
ORDER

Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
On May20, 2011, the petitioners, veteran William L. Evans, his spouse,
Dorothy Evans, and
his daughter, Carolyn S. Stump, filed with the Court a petition for
extraordinary relief in the form
of a writ of mandamus. The petition raises numerous allegations regarding
the Secretary's
appointment of Greenfield Banking Company (GBC) as a fiduciary for the
veteran, who has been
declared incompetent to handle the disbursement of VA funds; the removal
of Ms. Stump as the veteran's fiduciary; VA's "refusal" to reimburse Ms. Stump for expenses purportedly incurred for the veteran's benefit; VA's January 18, 2011, determination that Ms. Stump "misused" the veteran's funds and its request for remittance; and VA's refusal to acknowledge Ms. Stump's authority as the
veteran's attorney-in-fact and State court-appointed guardian over the
person and estate of the veteran.
The petitioners seek the following relief: (1) "A writ of mandamus
ordering the Secretary to cease and desist from any action to seek money from [Ms. Stump] and voiding, reversing, and vacating the Secretary's finding of misuse by [Ms. Stump]"; (2) "An order declaring that the Secretary's disregard of the powers granted in the executed Durable Power of Attorney and associated property rights of the attorney-in-fact and competent spouse violate the United States Constitution, the laws of the State of Indiana, and the requirements in 38
U.S.C. § 5502(b) for state
court approval of actions conflicting with grants of power"; (3) "A writ
of mandamus ordering the
Secretary to recognize the authority of [Ms. Stump] under the October 19,
2005, Durable Power of
Attorney executed by [the veteran, Mr. Evans,] and all relevant laws of
the State of Indiana, as well
as the October 1, 2010[,] Order Appointing [Ms. Stump] as Permanent
Guardian Over the Person
and Estate of William Louis Evans, Jr., executed by a Marion [Indiana]
Superior Court Judge"; (4)
"A writ of mandamus ordering the Secretary to immediately revoke the
authority of the currently
assigned federal fiduciary and immediately return all funds held by that
fiduciary, VA, or any VA


agent, to Mr. Evans's authorized attorney-in-fact"; (5) "A writ of
mandamus ordering the Secretary
to retain a qualified accountant, independent of VA, to conduct an
accounting of Mr. Evans's VA
benefits since October 2010 and ordering the Secretary to make Mr. Evans
whole for all costs, fees,
and expenses related to the actions of the VA-assigned fiduciary including,
but not limited to, fees
paid to the fiduciary, check and other banking charges, and the cost of
obtaining any VA-required
bond"; and (6) "A writ of mandamus ordering the Secretary to pay
reasonable costs and attorneys
fees in this matter." Petition at 5-6.
The petitioners also filed a motion for panel decision on June 2, 2011,
and a motion for leave
to file supplemental information on June 22, 2011. On June 15, 2011, the
Secretary filed a response
in opposition to the motion for panel decision. Because the Court has
determined that this matter
may be resolved by a single judge, the Court will deny the motion for
panel decision. See Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990). The Court will grant the
petitioners' motion to file
additional information and will consider the correspondence and documents
appended to the motion
as part of this petition. For the reasons stated below, the petition for
extraordinary relief will be
denied.
The Court has the authority to issue extraordinary writs in aid of its
jurisdiction, or potential
jurisdiction, pursuant to the All Writs Act, 28 U.S.C. § 1651(a). See Cox
v. West, 149 F.3d 1360,
1363-64 (Fed. Cir. 1998). However, "[t]he remedy of mandamus is a drastic
one, to be invoked only
in extraordinary situations." Kerr v. U.S. Dist. Court, 426 U.S. 394, 402 (
1976). Accordingly, three
conditions must be met before a court may issue a writ: (1) The petitioner
must lack adequate
alternative means to attain the desired relief, thus ensuring that the
writ is not used as a substitute
for an appeal; (2) the petitioner must demonstrate a clear and
indisputable right to the writ; and (3)
the Court must be convinced, given the circumstances, that the issuance of
the writ is warranted. See
Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 (2004).
In Freeman, the Court addressed whether the Secretary's authority to appoint a fiduciary pursuant to 38 U.S.C. § 5502 was a matter reviewable by this
Court. 24 Vet.App. 404(2011). The Court answered this question in the affirmative: "We therefore conclude that section 5502 falls within the congressional grant of jurisdiction given to the Board and to this Court in the [Veterans' Judicial Review Act of 1988, Pub. L. 100-687, 102 Stat. 4105]." Id. at 416; but see id. at 415 (recognizing that "[o]ther provisions of [section] 5502 contain language that indicates that the Secretary has 'discretion' over acts involving suspected improper acts by a fiduciary," which may be outside the Board's and this Court's jurisdiction).
The Court rejected the Secretary's contention that
because it was a matter committed to his sole discretion his execution of
the obligation to select a
fiduciary was not reviewable by this Court, or by any court. Id. at 411-16.
Consequently, "if [a]
veteran disagrees with the Secretary's manner of selecting a fiduciary,
the veteran may appeal that
decision to the Board." Id. at 414.
Therefore, to the extent that the petitioners seek to challenge VA's
selection of GBC as the
fiduciary for the veteran, the Court's decision in Freeman clearly
establishes an administrative
remedy to address their grievance. Id. at 413 (holding that the Secretary is "
compelled to recognize" a Notice of Disagreement concerning VA's selection of a VA fiduciary).
The
Court recognizes that
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the petition and its supporting exhibits demonstrate a convoluted and
contentious history among the
parties concerningthe selection and appointment of a fiduciaryfor the
veteran. In light of the Court's
holding in Previous HitFreemanNext Hit, the Court trusts that the Secretary will act in
accordance with this Court's
decision and issue a Statement of the Case (SOC) in response to the
petitioners' disagreement with
the appointment of GBC as the veteran's fiduciary as well as to their
ancillary request that VA
recognize Ms. Stump as attorney-in-fact and court-appointed guardian over
the person and estate of
the veteran. If the Secretary refuses to issue an SOC, the petitioners may
re-file their petition, as appropriate. To the extent that the petitioners seek an accounting of the veteran's funds paid to the VA-appointed fiduciary, GBC, the Court notes that this request is contingent upon the propriety of the appointment of GBC, which will be addressed by the Agency in accordance with Freeman. As
a result, the Court concludes that the petitioners have not established
the right to a writ as their request is premature. See Cheney and Freeman, both supra.
The petitioners' assertion that the Secretary has taken the position that
their "due process
rights have expired" leaving them without a remedy absent Court
intervention is not persuasive.
Petition at 16. The petitioners mistakenly rely on the regional office's
referral to "due process" in
a July 2009 rating decision as it related to VA's determination that the
veteran was not competent
to handle the disbursement of funds – an issue that has not been
contested by the petitioners. See
38 C.F.R. § 3.353(e) (2011) (providing that "[w]henever it is proposed to
make an incompetency
determination, the beneficiary will be notified of the proposed action and
or the right to a hearing").
To the extent that the petitioners assert that Ms. Stump has been unable
to challenge VA's misuse determination and that no alternative means are available to prevent the Secretary from arbitrarily seizing money from Ms. Stump, the petitioners have not demonstrated that the Board, and
therefore this Court, would have jurisdiction to address this matter. Petition at 17. See Cheney, Freeman, and Cox, supra. Even assuming jurisdiction exists, the petitioners also have not demonstrated that the issue is ripe for review. See Texas v. United States, 523 U.S. 296, 300 (1998)("A claim is not ripe for adjudication if it rests upon 'contingent future events that may not occur as
anticipated, or indeed may not occur at all.'" (quoting Thomas v. Union Carbide Agric. Prods. Co., 473 U.S. 568, 580-81 (1985) (internal quotations omitted))). The only
sanction levied against Ms. Stump as a result of VA's misuse determination has been her removal as the veteran's fiduciary and the subsequent appointment of GBC – an issue that will be addressed by the Agency in accordance with the Court's decision in Freeman, supra. There is no indication in the record that VA has initiated State court proceedings for restitution nor has the Secretary pursued criminal proceedings
in accordance with title 18, either of which would afford Ms. Stump an opportunity to defend the allegations made against her in accordance with her rights guaranteed by the U.S. Constitution. See 38 U.S.C. §§ 6101, 6106; 18 U.S.C. § 641; 38 C.F.R. § 13.100 (2011).
With regard to the parties' dispute concerning Ms. Stump's request for
reimbursement of
expenses, the Court notes that the documents appended to the petitioners'
June 22, 2011, motion
demonstrate that VA has approved and reimbursed Ms. Stump for expenses in
the amount of
$8,083.17. VA also informed Ms. Stump that further documentation was
required to approve the
remaining items and stated that she may provide additional documentation
to supplement her
reimbursement request. As a result, even assuming the Board, and therefore
this Court, have
3


jurisdiction to review this matter, the Court concludes that the
petitioners have not demonstrated that
they have a clear and indisputable right to the writ or that they have
exhausted their administrative
remedies. See Cheney, supra; see also Friscia v. Brown, 8 Vet.App. 90, 91 (
1995) (per curiam
order) (exhaustion of administrative remedies required to establish
entitlement to a writ).
Upon consideration of the foregoing, it is
ORDERED that the petitioners' June 2, 2011, motion for a panel decision is
DENIED. It is
further
ORDERED that the petitioners' June 22, 2011, motion for leave to file
additional
supplemental information is GRANTED. It is further
ORDERED that the petitioners' request for extraordinary relief is DENIED.
DATED: July 15, 2011
BY THE COURT:
MARY J. SCHOELEN
Judge

Copies to:
Katrina J. Eagle, Esq.
Douglas J. Rosinski, Esq.
VA General Counsel (027)
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