Citation Nr: 0126706 Decision Date: 11/26/01 Archive Date: 12/03/01 DOCKET NO. 00-03 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office (RO) in White River Junction, Vermont THE ISSUES 1. Whether new and material evidence has been submitted to reopen a claim for entitlement to service connection for porphyria cutanea tarda (PCT), claimed as secondary to Agent Orange exposure. 2. Entitlement to an increased rating for chronic dermatitis, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Krista M. Weida, Associate Counsel INTRODUCTION The veteran served on active duty from October 1964 to November 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 1999 rating decision by the White River Junction, Vermont RO, which denied service connection for PCT and an increased (greater than 30 percent) rating for chronic dermatitis. Although the RO has developed the issue of PCT on appeal as though it was an original claim for service connection, the Board finds that this treatment of the veteran's claim is not entirely appropriate. The records show that the RO denied his claim for entitlement to service connection for PCT in a March 1994 rating decision. Although the veteran was given written notification of this determination that same month, a timely appeal was not thereafter received. The rating decision, therefore, became final. See U.S.C.A. § 7105 (West 1991). As a result, the veteran's current claim for entitlement to service connection for PCT must be considered a petition to reopen a prior final decision. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (2001). Consequently, the issue on appeal has been restyled as set forth on the first page of this decision. The Board's decision on whether new and material evidence has been submitted to reopen a claim for service connection for PCT is set forth below. However, the remaining claim on appeal is addressed in the remand following the decision. In August 2001, a hearing was held at the RO before N. R. Robin, the undersigned Member of the Board rendering the final determination in this claim and who was designated by the Chairman of the Board to conduct that hearing, pursuant to 38 U.S.C.A. § 7102(b) (West 1991). The Board further notes that in February 2001, the veteran filed a claim for service connection for hepatitis C, diabetes, and erectile dysfunction secondary to diabetes. These claims have yet to be adjudicated by the RO and are referred back to the RO for proper consideration. FINDINGS OF FACT 1. In a March 1994 rating decision, service connection for a PCT was denied; the veteran did not appeal this denial. 2. Evidence added to the record since March 1994 includes evidence that is relevant and probative of the issue at hand, and is so significant that it must be considered in order to fairly decide the merits of the claim. 3. The veteran's current diagnosis of PCT is etiologically linked to his exposure to Agent Orange during military service. CONCLUSIONS OF LAW 1. The March 1994 rating decision, which denied service connection for PCT, is final. 38 U.S.C.A. §§ 1110, 5107, 7105(c) (West 1991 and Supp. 2001); 38 C.F.R. §§ 3.104(a), 3.303, 3.306, 20.1100 (2001). 2. Evidence received since March 1994 is new and material and the claim for service connection for PCT is reopened. 38 U.S.C.A. §§ 1110, 5107, 5108 (West 1991 and Supp. 2001); 38 C.F.R. § 3.156(a) (2001). 3. The veteran's PCT was incurred in or the result of his military service. 38 U.S.C.A. §§ 1110, 5107 (West 1991 and Supp. 2001); 38 C.F.R. § 3.303 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS There has been a significant change in the law during the pendency of this appeal. On November 9, 2000, the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C.A. § 5100 et seq. (West Supp. 2001)) became law. This law redefined the obligations of VA with respect to the duty to assist and included an enhanced duty to notify a claimant as to the information and evidence necessary to substantiate a claim for VA benefits. This law also eliminated the concept of a well-grounded claim and superseded the decision of the United States Court of Appeals for Veterans Claims in Morton v. West, 12 Vet. App. 477 (1999), withdrawn sub nom. Morton v. Gober, No. 96-1517 (U.S. Vet. App. Nov. 6, 2000) (per curiam order), which had held that VA could not assist in the development of a claim that was not well grounded. This change in the law is applicable to all claims filed on or after the date of enactment of the VCAA, or filed before the date of enactment and not yet final as of that date. VCAA, § 7(a), 114 Stat. at 2099-2100; see also Karnas v. Derwinski, 1 Vet. App. 308 (1991). In this case, the RO has had an opportunity to consider the veteran's claim for PCT subsequent to enactment of the VCAA, and the veteran and his representative have had the opportunity to make argument to the RO and Board since the enactment of the new law. The Board determines that the law does not preclude the Board from proceeding to an adjudication of the veteran's claim without first remanding the claim to the RO, as the requirements of the new law have essentially been satisfied. In this regard, the Board notes that by virtue of the February 2000 Statement of the Case and the March 2000 Supplemental Statement of the Case issued during the pendency of the appeal, the veteran and his representative have been advised of the information and evidence necessary to substantiate the claim. Historically, in November 1993, the veteran filed a claim for service connection for PCT. By rating decision, dated March 1994, the RO denied service connection for PCT because it was a constitutional or developmental abnormality. The veteran did not file a timely appeal and that decision became final. Subsequently, in February 1999, the veteran filed a claim to reopen his claim for entitlement to service connection for PCT. By rating decision, dated June 1999, the RO denied service connection for PCT. Thereafter, the veteran filed a substantive appeal in February 2000. A claim will be reopened if new and material evidence has been submitted since the last final decision on the claim. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156(a); Manio v. Derwinski, 1 Vet. App. 140, 145 (1991); Evans v. Brown, 9 Vet. App. 273 (1996). The issue of new and material evidence must be addressed in the first instance by the Board because it goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim de novo. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). Once the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Id. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted "is a legal nullity." Butler v. Brown, 9 Vet. App. 167, 171 (1996). As defined by regulation, new and material evidence means evidence not previously submitted to agency decision makers, which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with the evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a). See also Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998) (expressly rejecting the standard for determining whether new and material evidence had been submitted sufficient to reopen a claim set forth in Colvin v. Derwinski, 1 Vet. App. 171 (1991)). In addition, for the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Board recognizes that the regulation regarding new and material evidence has been amended, effective August 29, 2001. See 66 Fed. Reg. 45,620, 45,630 (Aug. 29, 2001). However, that regulatory amendment applies only to claims filed on or after August 29, 2001. Because that is not the case here, the Board will consider the version of 38 C.F.R. § 3.156(a) set forth above. In Elkins v. West, 12 Vet. App. 209 (1999), as since modified by the Veterans Claims Assistance Act of 2000, Pub. L. No. 106-475, 114 Stat. 2096 (2000), VA must first determine whether new and material evidence has been presented under 38 C.F.R. § 3.156(a) in order to have a finally decided claim reopened under 38 U.S.C.A. § 5108. VA must then proceed to evaluate the merits of the claim, but only after ensuring that the duty to assist under the Veterans Claims Assistance Act of 2000 has been fulfilled. See generally, Elkins, 12 Vet. App. at 218-19; Veterans Claims Assistance Act of 2000. In the case at hand, the evidence available for the RO's consideration in March 1994 included: the veteran's service medical records, which show treatment for athletes foot, ringworm, a rash on his stomach, and lesions on his foot; treatment records, dated October 1983 from the Togus, Maine VA Medical Center (VAMC) that show a diagnosis of inactive chronic dermatitis of the dorsal hands, suggestive of PCT; a February 1984 VA examination report, which shows the veteran had complaints of blistering and itching on his hands and feet; an August 1985 rating examination report, which reveals blisters on his hands and feet as well as scars of previous dermatitis; a VA treatment record, dated June 1985, where the veteran had complaints of scaling on his feet and blisters on his hands and a diagnosis of onychomycosis with tenia and a questionable diagnosis of PCT related to Agent Orange exposure; a private examination report, dated November 1989, by Dr. Lepage, diagnosing the veteran with, among other things, chronic tinea pedis and onychomycosis, further stating that the history of "blisters on the backs of the hands raises the possibility of porphyria cutanea tarda;" a personal hearing transcript, dated December 1989, where the veteran testified that he has had a history of blistering on the back of his hands, ankles, and feet with a repugnant smell, crusting, scaling, and constant itching; a VA examination for residuals of dioxin exposure (Agent Orange), dated February 1994, diagnosing the veteran with chronic dermatitis and clinical PCT; and an addendum to the February 1994 VA examination, dated March 1994, diagnosing the veteran with chronic hand and foot dermatitis, possibly related to photosensitivity dermatitis of the hands, consistent with PCT or variegate porphyria. In February 1999, the veteran requested that his claim for entitlement to service connection for PCT be reopened. Newly submitted evidence since the March 1994 rating decision includes: a letter, dated February 1999, submitted by Dr. Reiss, the veteran's private physician; a VA dermatology examination report, dated February 1999; a VA dermatology examination report, dated May 1999; undated documentation regarding Agent Orange submitted by the veteran from an unknown source; a letter, dated May 1999, submitted by Dr. Seal, the veteran's private physician; outpatient treatment records, dated March 1994 to August 2001, from the White River Junction VA Medical Center (VAMC); a letter, dated March 2000, submitted by Daniel Duffy, PA-C, Chief, Special Programs, White River Junction VA Hospital (WRJVAH), White River Junction, Vermont; a VA memorandum, dated March 2000; a letter, dated June 2000, sent to the veteran regarding VA laboratory results; an Agent Orange Brief, dated August 1999, prepared by the Environmental Agents Service, VA Central Office and submitted by the veteran; documentation submitted by the veteran regarding a fellow serviceman who was exposed to Agent Orange while in the same unit as the veteran; and the August 2001 Board hearing transcript. A February 1999 letter submitted by Dr. Reiss, the veteran's private physician, states that the veteran had been under his care since August 1991 for, among other things, emersion foot stemming from his service in Vietnam. In February 1999, the veteran underwent a VA dermatology examination. The veteran had complaints of pruritus, decreased sensation of the fingers and toes with difficulty in flexing his right great toe. Upon physical examination of the veteran's feet, the examiner found bilateral marked tinea pedis, including onychomycosis. The tinea pedis was significant for dry, cracked callus of the balls of the feet and heels with multiple cracks on both feet that bled with ambulation. The examiner diagnosed the veteran with bilateral tinea pedis and onychomycosis. The examiner also added that the veteran: was previously seen for PCT in 1994 and denied on appeal in the same year. He asked me to briefly examine his back and chest, and there are multiple areas of seborrheic keratosis as well as erythematous macular lesions. He had a ruptured vesicle over the second metacarpal head of the left hand and multiple scars of bilateral hands, dorsal aspect. In May 1999, the veteran underwent another VA dermatology examination. The veteran had complaints of ongoing pruritus, tenderness, and edema of the feet with scaling, fissures, bleeding, and occasional vesicles that get worse in summer months. Furthermore, the veteran stated that he had occasional vesicles on the dorsal aspects of the hands and feet that began as an edematous pruritic area before developing into a clear fluid filled vesicle, which spontaneously ruptured and occasionally bled before crusting over. The veteran did not have photosensitivity or photophobia. The examiner stated that the results of the urine carboxyporphyrine test done in March 1994 did not support a diagnosis of PCT. Upon physical examination, the examiner found a clear filled vesicle on the veteran's left hand, no bullae, scarring, or milia on the veteran's hands, feet, or nose. No scleroderma-like changes were found on the face, neck, or trunk. There was no heliotrope, heterotrichosis, or brown hyper-melanosis. The veteran's feet had moccasin distribution erythema with fine white scaling and hyperkeratosis of plantar surfaces with fissures at the heels. The examiner diagnosed the veteran with tinea pedis and stated there were no clinical signs of PCT. A letter submitted by Dr. Seal, dated May 1999, states that physical examination of the veteran revealed three eroded lesions on the veteran's hands with eschars. There were no bullae, no scars, or evidence of skin fragility in this area. The examiner did not find hypertrichosis or hyperpigmentation. On the veteran's feet, he did show erythema with diffuse scale on the plantar surfaces and nail plate dystrophy. In conclusion, Dr. Seal stated: I could not find extensive cutaneous support for porphyria cutanea tarda but it may simply be fairly inactive at this point in time. He evidently has had a biopsy and lab work to support this diagnosis though I am not sure of the dates of this. In regard to his feet, I think [the veteran] has chronic fungus and onychomycosis. Treatment records from the White River Junction VAMC, dated March 1994 through August 2001, in general, show treatment for recurrent heel fissures and calluses, onychomycosis, and tinea pedis. More specifically, in a May 2000 treatment note, two excopriated blisters were found on the right dorsum and one of the left. The examiner diagnosed the veteran with PCT and recommended solar avoidance. Likewise, in a February 2001 treatment note, the examiner noted the veteran had two problems that were originally thought to be one: PCT and tinea of the feet. Increased levels of uroporphyrin and coproporphyrin were found in the veteran's urine. The examiner further stated that the PCT could be related to Agent Orange. Furthermore, an August 2001 treatment note states: [The veteran] has a diagnosis of Porphyria Cutanea Tarda based on skin findings of fragility and blisters on sun exposed areas and laboratory confirmation of increased uro and coproporphyrins in urine. Based on this diagnosis he is undergoing phlebotomy treatments monthly and is taking part in porphyria research under the supervision of Dr. Sinclair. Thus [the veteran] has PCT and Agent Orange guidelines support a relationship of PCT to Agent Orange. In the March 2000 letter, Daniel Duffy, PA-C, Chief, Special Programs, WRJVAH, stated that after reviewing the data and March 1994 rating decision: I feel it is as likely as not that [the veteran's] PCT is related to his experience and exposure to Agent Orange (Dioxin) in Vietnam 1966. As PCT has a genetic predisposition which is exacerbated by Dioxin exposure I feel strongly that this is the case with [the veteran]. A June 2000 letter, sent to the veteran regarding VA laboratory results, states that his most recent urine analysis was positive for porphyrins. At the time of the August 2001 Board hearing, the veteran testified that he had symptoms of PCT continuously since 1966, but that it went undiagnosed. The veteran stated that he suffers from blisters on the back of his hands and feet that bleed, with a repugnant smell. He also complained of sweating and nervousness. He further testified that he had various dermatological disabilities in service that were treated often on a daily basis. Currently, he stated that it does affect his day-to-day life and has gotten progressively worse resulting in a regimen of blood testing and phlebotomy treatments. This newly submitted evidence, to specifically include the March 2000 letter submitted by Daniel Duffy, the June 2000 VA letter regarding the veteran's urinalysis results, and the August 2001 outpatient treatment note, were not previously of record and the information contained therein cannot be said to be redundant, since no previous examiner since service had provided an opinion regarding the relationship of currently diagnosed PCT to service. Therefore, the Board finds that the new evidence is so significant that it must be considered in order to fairly decide the merits of the claim and the claim for service connection for PCT is reopened. Once it has been determined that new and material evidence has been submitted to reopen a claim, the Board must decide whether the veteran will be prejudiced in any way by its consideration of the reopened claim when the RO has not addressed that underlying issue. The factors to be considered include whether the claimant has been given adequate notice of the need to submit evidence or argument on the underlying claim, an opportunity to submit such evidence or argument, and an opportunity to address the issue at a hearing. Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran has presented his arguments by submission of personal documentation and by testifying at the Board hearing in August 2001. In view of the opportunity to present his contentions and evidence on the underlying claim, and of the outcome of the decision, the Board concludes that the veteran will not be prejudiced by its consideration of the underlying claim. Service connection may be granted for disability resulting from disease or injury incurred or aggravated in service. 38 U.S.C.A. § 1110, 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, a veteran, who, during active military, naval or air service, served in the Republic of Vietnam during the Vietnam era and has one of the diseases listed at § 3.309(e), shall be presumed to have been exposed during such service to a herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307. If a veteran was exposed to an herbicide agent during active military, naval, or air service, the following diseases shall be service- connected if the requirements of § 3.307(a)(6) are met, even though there is no record of such disease during service: chloracne or other acneform diseases consistent with chloracne, Hodgkin's disease, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers, and soft-tissue sarcoma. 38 C.F.R. § 3.309(e). Additionally, the diseases listed at 38 C.F.R. § 3.309(e) (2001) shall have become manifest to a degree of 10 percent or more at any time after service, except that chloracne or other acneform disease consistent with chloracne, porphyria cutanea tarda, and acute and subacute peripheral neuropathy shall have become manifest to a degree of 10 percent or more within a year, and respiratory cancers within 30 years, after the last date on which the veteran was exposed to an herbicide agent during active military, naval, or air service. 38 C.F.R. § 3.307(a)(6)(ii). The Board notes that even though the veteran has Vietnam service and a disability subject to presumptive service connection, he does not meet the requirements of 3.307(a)(6) requiring that the PTC manifest itself to a degree of 10 percent or more within a year after the last date on which he was exposed to a herbicide agent during service. Therefore, the veteran is not entitled to presumptive service connection for a disability associated with exposure to certain herbicide agents. Nevertheless, service connection for residuals of exposure to Agent Orange also may be established by showing that a disorder resulting in disability or death is, in fact, causally linked to such exposure. See Brock v. Brown, 10 Vet. App. 155, 162-64 (1997); Combee v. Brown, 34 F.3d 1039, 1044 (Fed. Cir. 1994), citing 38 U.S.C.A. §§ 1113(b) and 1116, and 38 C.F.R. § 3.303. In this case, the veteran has a history of dermatological disabilities since service. Although, in the past, medical examinations have found no clinical diagnosis of PCT, the June 2000 VA letter to the veteran, and a May 2001 VA outpatient treatment note, state that the veteran had increased levels of uroporphyrin and coproporphyrin in his urine. Likewise, the May 2001 treatment note further states that the veteran's PCT could be related to Agent Orange exposure. Moreover, the August 2001 treatment note states that the veteran's PCT, based on skin findings of fragility and blisters on sun exposed areas and laboratory confirmation of increased "uro" and coproporphyrins in the urine, and Agent Orange guidelines "support a relationship of PCT to Agent Orange." When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. The Board finds that the evidence that the veteran's PCT is related to Agent Orange exposure during his service is at least equal to the evidence against the claim. Therefore, the Board grants service connection for the veteran's PCT. ORDER The veteran has filed a reopened claim for service connection on the basis of new and material evidence. His claim for service connection for porphyria cutanea tarda, secondary to Agent Orange exposure, is granted. With respect to these issues, the appeal is allowed. REMAND The veteran also contends that he is entitled to an increased (greater than 30 percent) rating for chronic dermatitis. Specifically, at the August 2001 Board hearing, the veteran testified that his feet scale to the point they blister and the skin comes off in pieces and becomes very repugnant. He further stated that because the dermatitis has gotten worse, he often needs the assistance of a cane to walk. The veteran also has complaints of recent discoloration on his feet and ankles, and as they becomes more infected, the smell increases. As stated above, there has been a significant change in the law during the pendency of this appeal. Because of the change in the law brought about by the VCAA, a remand of this issue is required for compliance with the notice and duty to assist provisions contained in the new law. In addition, because the RO has not yet considered whether any additional notification or development action is required under the VCAA, it would be potentially prejudicial to the appellant if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384 (1993); VA O.G.C. Prec. Op. No. 16-92 (July 24, 1992) (published at 57 Fed. Reg. 49,747 (1992)). Therefore, for these reasons, a remand is required. The United States Court of Appeals for Veterans Claims has stated that the Board must make a determination as to the adequacy of the record. Littke v. Derwinski, 1 Vet. App. 90 (1990). In this case, the most recent VA examinations, dated February and May 1999, do not specifically address chronic dermatitis or its manifestations in relation to the veteran's other dermatological disabilities. Based on the medical evidence, the Board deems it necessary for the veteran to undergo a VA dermatology examination in order to determine the nature and severity of the veteran's chronic dermatitis. The Court has stated that an examination must provide sufficient information to rate the disability in accordance with the applicable rating criteria. See Massey v. Brown, 7 Vet. App. 204 (1994). All relevant outstanding medical records must be obtained prior to examination. Likewise, the veteran is hereby advised that failure to report for any scheduled VA examination, without good cause, may well result in a denial of his claim. See 38 C.F.R. § 3.655 (2001). Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. Id. Accordingly, the case is REMANDED to the RO for the following actions: 1. The RO must review the claims file and ensure that all notification and development action required by 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 1991 & Supp. 2001) are fully complied with and satisfied. 2. The RO should contact the veteran and inquire as to where he has received treatment, VA or private, for chronic dermatitis since 1998. After obtaining the necessary releases, the RO should then contact the named medical providers and request copies of all previously unobtained medical records. All records obtained should be associated with the claims file. If the RO is unable to obtain all relevant records, the veteran should be notified of the records VA is unable to obtain, the efforts taken by the Secretary to obtain those records and any further action to be taken by VA with respect to the claim. 3. Thereafter, the RO should schedule the veteran for a VA dermatology examination to ascertain the nature and severity of the manifestations the veteran experiences as a result of the chronic dermatitis. ? The examiner should distinguish those manifestations resulting from chronic dermatitis versus those manifestations resulting from PCT or any other diagnosed dermatological disability. Likewise, should such manifestations overlap, an explanation should be given discussing such. ? If the examiner is unable to distinguish the manifestations of all the veteran's dermatological disabilities, a detailed explanation should be given stating such reasons. ? The examiner should thoroughly review the claims folder and a copy of this Remand in conjunction with the examination. ? Any necessary special studies should be performed and all pertinent clinical findings should be reported in detail. ? The examiner should provide supporting rationale for all opinions expressed. 4. Thereafter, the RO should readjudicate this claim. If the benefit sought on appeal remains denied, the veteran and the veteran's representative should be provided a supplemental statement of the case (SSOC). The SSOC must contain notice of all relevant actions taken on the claim for benefits, to include a summary of the evidence and applicable law and regulations considered pertinent to the issue currently on appeal. An appropriate period of time should be allowed for response. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded to the regional office. Kutscherousky v. West, 12 Vet. App. 369 (1999). 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. 2001) (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. N.R. ROBIN Member, Board of Veterans' Appeals