Citation Nr: 0606671 Decision Date: 03/08/06 Archive Date: 03/23/06 DOCKET NO. 91-13 237 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an increased rating for a left shoulder disability, currently rated as 20 percent disabling. 2. Entitlement to an initial 10 percent rating for a psychiatric pain disability associated with a service- connected left shoulder disability. REPRESENTATION Appellant represented by: Susan Paczak, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. N. Hyland, Associate Counsel INTRODUCTION The appellant served on active duty from October 1952 to October 1954. This appeal originally arose from an October 1989 rating decision of the Department of Veterans Affairs (VA) Regional Office in Pittsburgh, Pennsylvania (the RO) that denied a disability rating greater than 10 percent for the appellant's service-connected left shoulder disability. Following receipt of the appellant's notice of disagreement, in June 1990, the RO assigned a 20 percent rating for the appellant's left shoulder disability. By decision dated in June 1991, the Board of Veterans' Appeals (the Board) denied an increased evaluation above 20 percent for the appellant's left shoulder disability. In May 1993, the United States Court of Appeals for Veterans Claims (the Court) vacated the Board's June 1991 decision and remanded the case to the Board for further readjudication. Following an October 1993 denial of the appellant's claim by the Board, in September 1995, the Court vacated the Board's decision and remanded the case for further proceedings, to include directing the Board to conduct a new medical examination which complied with the requirements of 38 C.F.R. § 4.40. In January 1996, the Board remanded this case to the RO for further development. Following an orthopedic examination, the case was returned to the Board. By decision dated in February 1998, the Board denied an increased evaluation for a left shoulder disability. By order dated August 21, 1998, pursuant to a joint motion filed by VA and the appellant, the Court vacated and remanded the Board's February 1998 decision. Following remand by the Court, the Board remanded the claim in February 1999 to the RO for further development of the record. By RO rating decision dated in July 1999, the appellant's left shoulder disability rating was decreased from 20 percent to 10 percent. Service connection was then granted for a pain disorder as secondary to the service-connected left shoulder disability and a 10 percent rating was assigned for the pain disorder. Through counsel, the appellant noted his disagreement with the RO's actions. The Board in a June 2002 decision granted restoration of the previously assigned 20 percent rating for a left shoulder disability, and then also remanded issues of entitlement to an increased rating above 20 percent for a left shoulder disability, and entitlement to a higher initial evaluation than the 10 percent assigned for a psychiatric pain disorder associated with the service- connected left shoulder disability. The remand was in part to require the RO to issue a statement of the case responsive to the notice of disagreement submitted by the veteran in September 1999, itself disagreeing with the RO's 10-percent initial evaluation assigned for the psychiatric pain disorder. See Godfrey v. Brown, 7 Vet. App. 398 (1995) and Manlincon v. West, , 12 Vet. App. 238 (1999) (failure to issue a statement of the case following a notice of disagreement is a procedural defect requiring remand). Following that remand, the RO issued the required statement of the case addressing the pain disorder claim, and the veteran submitted a Form 9 in September 2002 perfecting his appeal. Thus the appeal also arises from the July 1999 RO decision granting service connection and assigning a 10 percent disability evaluation for a psychiatric pain disorder associated with the veteran's left shoulder disability. In the course of appeal, in March 2003, the veteran presented testimony before the undersigned Acting Veterans Law Judge at a video conference hearing conducted between the RO and the Board Central Office. He then waived his prior request for an in-person hearing before the Board. A transcript of that hearing is contained in the claims folder. In September 2003 the Board once again remanded the veteran's claims. The issue of entitlement to an increased rating for a left shoulder disability, currently rated as 20 percent disabling, is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT From the effective date of the grant of service connection, the veteran's service-connected pain disorder associated with a left shoulder disability has been productive of occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to associated symptoms. CONCLUSION OF LAW The criteria for a 30 percent rating for pain disorder associated with a left shoulder disability have been met from the effective date of the grant of service connection. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R.§ 4.7, 4.130, Diagnostic Code 9422 (2005). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 Initially, the Board notes that, in November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2004). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The United States Court of Appeals for Veterans Claims' (Court's) decision in Pelegrini v. Principi, 18 Vet. App. 112 (2004) held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the July 1999 decision preceded the enactment of the VCAA. Thereafter, the RO did furnish VCAA notice to the veteran in January 2004. Because the VCAA notice in this case was not provided to the appellant prior to the RO decision from which he appeals, it can be argued that the timing of the notice does not comply with the express requirements of the law as found by the Court in Pelegrini. While the Court did not address whether, and, if so, how, the Secretary can properly cure a defect in the timing of the notice, it did leave open the possibility that notice error of this kind may be non-prejudicial to a claimant. In this respect, all the VCAA requires is that the duty to notify is satisfied, and that appellants be given the opportunity to submit information and evidence in support of their claims. Once this has been accomplished, all due process concerns have been satisfied. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). VA has fulfilled its duty to notify the appellant in this case. In the January 2004 letter, as well as a July 1999 supplemental statement of the case, July 2002 statement of the case, and March and August 2005 supplemental statements of the case, the RO informed the appellant of the applicable laws and regulations, including applicable provisions of the VCAA, the evidence needed to substantiate the claims, and which party was responsible for obtaining the evidence. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The Board also notes that the January 2004 letter implicitly notified the appellant of the need to submit any pertinent evidence in the appellant's possession. In this regard, the appellant was advised to identify any source of evidence and that VA would assist in requesting such evidence. The Board believes that a reasonable inference from such communication was that the appellant must also furnish any pertinent evidence that the appellant may have and that the requirements of 38 C.F.R. § 3.159(b)(1) have been met. Thus, the Board finds that VA's duty to notify has been fulfilled and any defect in the timing of such notice constitutes harmless error. The Board also finds that all necessary assistance has been provided to the appellant. The RO has made reasonable and appropriate efforts to assist the appellant in obtaining the evidence necessary to substantiate his claims. In addition, the appellant was provided with the opportunity to attend a Board hearing which he attended in March 2003. Also during the appeal period, in March 1999 and April 2004, the veteran was afforded VA psychological examinations. In regard to these examinations, the appellant and his representative assert that the April 2004 VA examination is inadequate because it was conducted by a psychologist rather than a psychiatrist as the Board had directed in its September 2003 remand. See Stegall v. West, 11 Vet. App. 268 (1998). They also argue that, in the alternative, findings from the April 2004 VA examination satisfy the criteria for the next higher rating for the veteran's pain disorder, to 30 percent. Although the April 2004 VA examination was indeed conducted by a psychologist rather than a psychiatrist as the Board had directed, findings from that examination were comprehensive, appear credible, and are sufficiently detailed to evaluate the veteran under the pertinent diagnostic codes of VA's rating schedule. See 38 C.F.R. Part 4. Moreover, the April 2004 examination findings, along with the veteran's claims file, were reviewed by a board certified psychiatrist who, in May 2005, concurred with the April 2004 VA examiner's findings. The Board thus finds in this case that the directives of the 2003 remand have been sufficiently met. This is especially so when considering the favorable opinion below regarding this appeal. Under these circumstances, the Board finds that VA has fulfilled its duty to notify and assist the appellant in the claim under consideration and that adjudication of the claim at this juncture, without directing or accomplishing any additional notification and or development action, poses no risk of prejudice to the appellant. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The appeal is now ready to be considered on the merits. II. Background The RO granted the veteran a separate evaluation for a psychiatric pain disorder associated with his service- connected left shoulder disability in a July 1999 rating decision and assigned the veteran an initial 10 percent rating, effective in March 1999. The veteran disagrees with the assigned evaluation. During the March 1999 psychological examination, the veteran's self-reported current circumstances were that of a retired veteran generally functioning well within his retirement, caring for himself and looking after his household and monetary affairs, interacting positively with friends on a nearly daily basis, spending time with his grandchildren, and finding enjoyment in his daily activities and fulfillment in chosen pastimes and hobbies. He described his current life as good, but reported some symptoms of anxiety and hypervigilance. The examiner observed some guarding of responses at the interview and opined that the veteran appeared to be minimizing his history of psychiatric symptoms, particularly anxiety. Objective findings revealed the veteran to be alert and cooperative; mildly to moderately guarded in his responses; with appropriate dress, hygiene, and grooming; with speech fluent, coherent, and normal in rate; with mood self-described as good; with affect within normal range; with thoughts relevant and goal-directed without noted delusions; with auditory or visual hallucinations or delusions denied; with no significant memory disturbances noted and with memory self-reported as good; and with episodes of panic attacks and suicidal ideation or depression all denied. Insight and judgment appeared poor to fair. The examiner diagnosed the veteran as having pain disorder associated with both psychological factors and a general medical condition. He said that the veteran's stressors included chronic pain and assigned him a global assessment of functioning (GAF) score of 55. The veteran denied receiving any current psychiatric treatment. During a March 2003 video conference hearing, the veteran testified that he last worked in 1990. He said that his left arm pain prevented him from doing activities that he ordinarily did and requires him to just lie down. He explained that the pain affects his mood because it makes him frustrated and mad and he thinks that is why he and his wife are no longer together. On VA examination in April 2004, the veteran reported that he tries to stay busy to avoid becoming anxious or nervous and enjoys woodworking in his basement. He said that he assists his children and grandchildren when asked and occasionally goes fishing. He said he had numerous friends and enjoys going to restaurants, movies and ball games with them as well as to local veterans' organizations. He denied limiting any of his daily activities due to pain or emotional sequelae. He also reported that he cooks, does house cleaning and works in his yard, but requires assistance in lifting heavy objects. He stated that his arm pain had gotten worse over the years and estimated to be an 8 or 9 in severity out of a maximum 10. He denied any significant change in his emotional functioning over the past few years and said his mood in general was "good." He did report occasional frustration secondary to physical limitations due to pain and said that this occasionally leads to irritability when interacting with others. He denied any significant interpersonal problems or deficits in social functioning due to his irritability. He also denied sleep problems, suicidal ideation, significant worry or ruminations, panic attacks, obsessional or compulsive rituals, or significant depressive symptoms. Findings on examination in April 2004 show that the veteran was causally and appropriately dressed with good hygiene and grooming. His speech was fluent, coherent and normal in rate and volume. His mood was euthymic, and his affect was normal in range and appropriate in content. He reported mild anxiety, and denied significant depressive symptoms. There were no psychotic symptoms and he denied a history of hallucinations or paranoid ideation. He denied significant problems with memory or cognitive functioning and his gross cognitive functioning appeared adequate. His insight and judgment were fair to good. He was assessed as having pain disorder associated with both psychological factors and a general medical condition. Stressors included physical limitation secondary to chronic pain. He was assigned a GAF score of 65. The examiner noted that with the exception of occasional irritability and frustration, the veteran denied any significant symptoms and continued to enjoy productive social relationships with his family and friends. The examiner went on to opine that the veteran's current pain disorder would produce an occasional decrease in his work efficiency and social relationships with intermittent periods of inability to perform occupational tasks due to frustration, irritability, and anxiety. In a psychiatric addendum in May 2005, a board certified psychiatrist stated that he had reviewed the findings, report and records, and concurred with the findings from the April 2004 psychological examination. He specifically commented on the criteria that he was asked to consider by stating that that there were no hallucinations, delusions, gross impairment in thought process, persistent danger of hurting himself, and no grossly inappropriate behaviors. He also noted no evidence of disorientation, memory loss, obsessional rituals, near continuous panic affecting the ability to function independently, impaired impulse control, inability to maintain or establish effective relationships, flattened affect, circumstantial speech, etc., He referenced the April 2004 psychological report and stated that the veteran's current pain disorder would produce occasional decrease in his work efficiency and social relationships with intermittent periods of inability to perform occupational tasks due to frustration, irritability and anxiety. He added that the veteran's irritability did not render him unemployable. III. Analysis Disability evaluations are determined by comparing present symptomatology with the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2005). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995). In cases such as this in which the veteran has appealed the initial rating assigned after service connection is established, the Board must consider the initial rating, and, if indicated, the propriety of a staged rating from the initial effective date forward. See Fenderson v. West, 12 Vet. App. 119, 126-7 (1999). VA regulations also require that disability evaluations be based upon the most complete evaluation of the condition that can be feasibly constructed with interpretation of examination reports, in light of the whole history, so as to reflect all elements of disability. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Because the service-connected mental disorder has been rated 10 percent disabling throughout the appeal period, the Board will address whether there is any basis to assign a rating greater than 10 percent for any portion of the appeal period. Under 38 C.F.R. § 4.130, Diagnostic Code 9422 (2005), pain disorder will be evaluated in accordance with the General Rating Formula for Mental Disorders. Under that code, ratings are assigned according to the following criteria. A 10 percent evaluation is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or: symptoms controlled by continuous medication. A 30 percent evaluation is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 50 percent evaluation is warranted where there is evidence of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent evaluation is warranted for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. A 100 percent evaluation is warranted for a service-connected mental disorder where it results in total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusion or hallucination; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name. A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994). The Board notes that an examiner's classification of the level of psychiatric impairment, by words or by a GAF score, is to be considered but is not determinative of the percentage rating to be assigned. VAOPGCPREC 10-95. A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 61 to 70 is defined as some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, with some meaningful interpersonal relationships. The Board finds based on the evidence summarized above that the veteran meets the criteria for a 30 percent evaluation for his service-connected pain disorder effective from the date of the grant of this disability. Findings in March 1999 show that the veteran's pain disorder was associated with both psychological factors and a general medical condition and involves anxiety. Although the veteran was noted to be guarded and defensive during the March 1999 examination and was found to be minimizing his psychiatric symptoms, particularly anxiety, he did admit to experiencing some mild anxiety due to hypervigilance and hyper startle response. Findings during the April 2004 VA psychological evaluation also revealed mild anxiety. In addition, the examiner stated that the veteran would occasionally become frustrated with his physical limitations secondary to pain and become irritable. In fact, the veteran testified in March 2003 that it was because of his frustration and anger due to his pain that he and his wife were no longer together. Based on the April 2004 examination findings and review of the veteran's claims file, the examiner in April 2004 opined that the veteran's current pain disorder was productive of an occasional decrease in his work efficiency and social relationship with intermittent periods of inability to perform occupational tasks due to frustration, irritability and anxiety. This opinion, and the concurring opinion rendered by a VA board certified psychiatrist in May 2005, most clearly approximate the criteria for a 30 percent evaluation under Code 9422. Moreover, there is no medical evidence on file that is contrary to these opinions. The Board has also considered whether a higher rating may be assigned. However, the evidence of record simply does not show that the veteran has exhibited symptoms that meet the criteria for the next higher rating of 50 percent. As the VA psychiatrist pointed out in May 2005, the veteran's symptoms did not show flattened effect, circumstantial speech, or an inability to maintain or establish effective relationships. Moreover, the veteran denied panic attacks during both the March 1999 and April 2004 examinations. As far as relationships, the veteran testified in March 2003 that he and his wife are no longer together; however, he also reported in March 1999 and March 2004 that that he maintains contact with his children and grandchildren. He further reported in March 2004 that he has numerous friends with whom he socializes with. In addition, neither his reported symptoms nor examination findings show impaired judgement, difficulty in understanding complex commands or impaired abstract thinking. Accordingly, a rating in excess of 30 percent is not warranted at this time. The Board finds the symptoms associated with the veteran's pain disorder have not changed significantly for the period since the grant of service connection, and therefore, staged ratings are not required in this case, as 30 percent is the most appropriate evaluation for the veteran's pain disorder since the grant of service connection for the disability. See Fenderson, supra. The Board has based its decision in this case upon the applicable provisions of VA's Schedule for Rating Disabilities. The veteran has submitted no evidence showing that his service-connected psychiatric disorder has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluations, and there is also no indication that the disorder has necessitated frequent periods of hospitalization. Based on the foregoing, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a 30 percent rating, but no higher, for pain disorder associated with a left shoulder disability is granted from the effective date of the grant of service connection, subject to the law and regulations governing the payment of monetary benefits. REMAND Regarding the veteran's left shoulder disability, the veteran testified at a March 2003 video conference hearing to the effect that his left shoulder disability had increased in severity over the past three to five years, with disabling pain in the left scapular area and increasing stiffness in the neck. The September 2003 remand instructions directed the VA examiner to address the relationship between the veteran's service-connected left shoulder disability and any current symptoms affecting motion and functioning of the neck muscles. Unfortunately, this issue was not addressed by either the March 2004 or the June 2005 VA examination reports. Therefore, this issue must be remanded for compliance with the September 2003 remand instructions. See Generally Stegall v. West, 11 Vet. App. 268 (1998). While the Board regrets that a remand of these matters will further delay a final decision on appeal, such action is necessary to ensure that the appellant is afforded full due process of law. Accordingly, this matter is hereby REMANDED to the RO for the following actions: 1. The veteran must also be afforded a VA orthopedic examination to determine the nature and extent of his service- connected left shoulder disability. The claims folder and a copy of this remand must be made available to the examiner for review for the examination. All indicated tests and studies should be accomplished. Range of active and passive motion should be recorded about the affected joints in all planes about all axes. The examiner should state whether pain significantly limits functional ability during flare-ups or when the left arm is used repeatedly over a period of time. If so, the examiner must determine the extent of any additional limitation of functional ability. The examiner should also determine whether the left shoulder exhibits weakened movement, excess fatigability or incoordination. If feasible, these determinations should be expressed in terms of additional range-of- motion loss due to any weakened movement, excess fatigability or incoordination. If such determinations cannot be expressed in terms of additional range of motion loss in degrees, the examiner must at least provide a determination of the amount of any additional limitation of motion in terms of a percentage beyond what is recorded as the objective limitation to range of motion as recorded on the examination report. For both the left and right shoulders, the examiner should address the range of motion demonstrated and any functional impairment due to degenerative joint disease, to better assess functional impairment due to the service-connected left shoulder disability. The examiner must further address any associated left- side impairments of the humerus and humeral head, the clavicle or scapula, and scapulohumeral articulation. The examiner should address the extent of the veteran's service-connected left shoulder disability based on both a review of the entire record and a thorough examination of the veteran. The examiner should also address the relationship between the veteran's service- connected left shoulder disability and any current symptoms affecting motion and functioning of the neck muscles, including as related to the veteran's past complaints of neck stiffness and pain, and associated past medical findings. For any neck conditions found to be causally associated to the veteran's service- connected left shoulder disability, the examiner should address the nature and extent of such conditions, including the degree of their intermittence and/or chronicity, and whether they constitute a separate disabling condition. A detailed rationale should be provided for all opinions expressed. 2. After completion of the above, and after any other appropriate development, the RO should readjudicate the appealed claim on the merits. If the determination remains to any extent adverse to the veteran, he and his representative should be provided a supplemental statement of the case which includes a summary of additional evidence submitted, applicable laws and regulations, and the reasons for the decision. They should be afforded the applicable time to respond The appellant and his representative have the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. 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 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2005). ______________________________________________ A. M. SHAWKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs