Citation Nr: 1316663 Decision Date: 05/21/13 Archive Date: 05/29/13 DOCKET NO. 09-33 231 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for lumbar intervertebral disc syndrome (IVDS) with degenerative arthritis changes. ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from August 1990 to September 1993. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. For the period prior to November 6, 2012, the Veteran's IVDS with degenerative arthritis changes was manifested by forward flexion greater than 60 degrees, with no muscle spasms, guarding, or incapacitating episodes of IVDS. 2. For the period from November 6, 2012, the Veteran's IVDS with degenerative arthritis changes was manifested by functional impairment during flare-ups, but with no objective evidence of limitation of forward flexion to 30 degrees or less or incapacitating episodes of IVDS. CONCLUSIONS OF LAW 1. For the period prior to November 6, 2012, the criteria for an initial evaluation higher than 10 percent for IVDS with degenerative arthritis changes have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2012). 2. For the period from November 6, 2012, the criteria for an evaluation of 20 percent, but no higher, for IVDS with degenerative arthritis changes, have been more nearly approximated. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a March 2008 letter, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluations and effective dates are assigned, and the type of evidence which impacts those determinations. However, the appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (section 5103(a) notice is no longer required after service-connection is awarded); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Thus, VA's duty to notify in this case has been satisfied. The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment records, post service treatment records, and VA examination reports. The Board also notes that actions requested in the prior remand have been undertaken. In a September 2012 letter, the Veteran was asked to provide information concerning all medical care providers who have treated him for his low back symptoms since 2007. Additionally, the Veteran underwent an additional VA compensation examination in November 2012. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). As discussed above, the VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate the claim, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Analysis The Veteran seeks an evaluation in excess of 10 percent for his lumbar spine IVDS with degenerative arthritis changes. A February 2009 rating decision granted service connection for this disability and assigned a 10 percent disability rating effective December 31, 2007. The Veteran appealed the evaluation assigned. An August 2009 rating decision granted service connection for impairment of the right superficial peroneal nerve and assigned a 10 percent disability rating effective December 31, 2007. Inexplicably, a February 2013 rating decision granted another separate rating for right lower extremity radiculopathy and assigned a 20 percent disability rating effective November 6, 2012. See 38 C.F.R. § 4.14 (the evaluation of the same manifestation or disability under different diagnoses is to be avoided). The Veteran has not appealed the evaluations assigned for the right leg disabilities. Thus, the symptoms associated with these disabilities are not for consideration in evaluating the Veteran's lumbar spine IVDS with arthritis. Id. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40 (2012); see also 38 C.F.R. §§ 4.45, 4.59 (2012). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine, provide further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. The Veteran underwent a VA examination in January 2009. He reported his history of a herniated disc during service in 1991. He reported pain in the lower back which occurred 5 times per day and each time lasted for 30 minutes. He denied stiffness or bowel or bladder problems. He stated that the pain traveled down to the right leg. He reported that the pain was sharp and cramping. He stated that the pain was at a level of 4 out of 10. He reported that the pain could be elicited by physical activity, stress, and standing or laying for prolonged periods. He stated that the pain was relieved by Advil, Flexeril and by massage and chiropractic care. He reported that he could function with medication at the time of pain. He denied any incapacitation. He stated that functional impairment was some limitation of prolonged standing, sitting, heavy lifting and carrying. Upon physical examination, there was no evidence of radiating pain on movement. Muscle spasm was absent. No tenderness was noted. There was negative straight leg raising test. There was no ankylosis of the lumbar spine. Flexion was 90 degrees, with pain at 60 degrees. Extension was 30 degrees, with pain at 15 degrees. Right and left lateral flexion were 30 degrees, and right and left rotation were 30 degrees. Joint function of the spine was additionally limited by pain and pain had the major functional impact after repetitive use, but there was no additional limitation of motion. Joint function was not additionally limited by fatigue, weakness, lack of endurance and incoordination after repetitive use. Inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine. There was no lumbosacral motor weakness. The IVDS did not cause any bowel dysfunction, bladder dysfunction or erectile dysfunction. The examiner diagnosed IVDS with degenerative arthritis changes. The effect of the condition on daily activity was mild with some limitation on heavy lifting and carrying and frequent bending, kneeling, stooping and crawling. Private treatment records from Dr. Saisho dated in June 2009 reflect that the Veteran was assessed with severe degenerative disc disease, disc space narrowing, vacuum disc phenomena and osteophyte formation at L5-S1. He reported radiating pain and numbness down the right leg, worse in the morning and slowly getting better. He exhibited decreased range of motion, tenderness and pain. He exhibited no swelling, no edema and no spasm. He displayed normal reflexes. He was prescribed Nabumetone and Cyclobenzaprine. In July 2009, the Veteran stated that the medication he was prescribed caused severe drowsiness. In September 2009, the Veteran stated that his usage of his back medication has made it difficult for him to drive and clip his toe nails. The Veteran underwent another VA examination in November 2012. He reported that low back pain has become worse. He stated that the pain is relieved by Motrin and Flexeril. He reported one lumbar epidural steroid injection with temporary relief. He stated that flare-ups impacted the function of the thoracolumbar spine. He reported when he had a flare-up, he had difficulty sitting down and arising from the toilet. He stated that laying down worsened the pain. He reported that he slept on his belly or slept sitting propped up. He stated that twitching in the right lower extremity became progressively worse by nighttime. He stated that during flare-ups, he was unable to stand for longer than a few minutes, and that the numbness and twitching in the right lower leg started from mild back pain, which became moderate by the end of the day. Upon physical examination, flexion was to 90 degrees or greater, with painful motion beginning at 10 degrees. Extension was to 25 degrees, with no objective evidence of painful motion. Right lateral flexion was to 20 degrees, with painful motion beginning at 20 degrees. Left lateral flexion was to 30 degrees or greater with no objective evidence of painful motion. Right lateral rotation was to 30 degrees or greater with no objective evidence of painful motion. Left lateral rotation was to 30 degrees or greater, with no objective evidence of painful motion. The Veteran was able to perform repetitive-use testing with three repetitions. Post-test forward flexion was to 80 degrees. Extension was to 20 degrees. Right lateral flexion was to 20 degrees. Left lateral flexion was to 30 degrees or greater. Right lateral rotation was to 30 degrees or greater. Left lateral rotation was to 30 degrees or greater. The functional impairment of the thoracolumbar spine was less movement than normal and pain on movement. The Veteran had no localized tenderness or pain to palpation for joint and/or soft tissue of the thoracolumbar spine. The Veteran had no guarding or muscle spasm of the thoracolumbar spine. Neurological testing revealed right lower extremity radiculopathy, but no left side radiculopathy or any other neurologic abnormalities or findings related to the thoracolumbar spine. The Veteran had no incapacitating episodes over the past 12 months due to intervertebral disc syndrome. The examiner stated the Veteran's thoracolumbar spine condition did not impact his ability to work. The examiner diagnosed lumbar disc disease, degenerative arthritis, and low back pain. The examiner opined that the degree of functional loss that results from flare-ups of his symptoms or on extended use was severe. The examiner noted that the Veteran is able to continue to work at his sedentary job and achieved some relief from prescribed Motrin and Flexeril. The Veteran did not experience any incapacitating episodes in the previous 12 months that required bedrest, however the Veteran reported having quite a bit of difficulty sitting and arising from the toilet, and he needed to sleep propped upright with flare-ups. The Veteran was unable to bend or lift with the flare-ups. He was unable to stand more than a few minutes without low back pain which radiated to the right lower extremity with associated numbness. The Veteran was able to get relief by sitting down, which allowed him to continue to work at his desk job. The Veteran reported that the fasciculations in the right lower leg occurred more frequently and with a longer duration, which he found quite concerning. In February 2013, the Veteran stated that the pain management medications cause severe drowsiness, subsequently creating incapacitating episodes every time he took the medication. He reported that he could not drive a car when he took the medication. The Board finds that a rating in excess of 10 percent for the lumbar spine disability is not warranted for the period prior to November 6, 2012. Significantly, muscle spasm was absent in the January 2009 VA examination and there was no mention of such in private treatment records. Moreover, the clinical evidence of record shows the Veteran had forward flexion to 90 degrees in January 2009. Although private treatment records dated in June 2009 reflect that the Veteran exhibited decreased range of motion, the degrees of such motion were not reported. While pain was noted on forward flexion beginning at 60 degrees on the January 2009 examination, "although pain may cause functional loss, pain itself does not constitute functional loss" that is compensable for VA benefit purposes. Mitchell, 25 Vet. App. at 37. Additionally, the examiner noted the effect of the condition on the Veteran's daily activity was mild with some limitation on heavy lifting, carrying, and frequent bending, kneeling, stooping and crawling. In short, the objective findings do not show the Veteran's forward flexion has been limited to 60 degrees or less, even after consideration of pain, weakness and other symptoms described in DeLuca. Moreover, the combined thoracolumbar motion is not limited to 120 degrees or less, nor have muscle spasms or guarding been shown. Thus, the preponderance of the competent and probative evidence of record is against a finding of an initial rating in excess of 10 percent for the IVDS with degenerative arthritis changes based on the General Rating Formula for Diseases and Injuries of the Spine for the period prior to November 6, 2012. As noted above, the Veteran is separately rated for his radiculopathy symptoms, and such symptoms cannot be considered in the evaluation the orthopedic manifestations of his lumbar spine disability, as such would constitute pyramiding. 38 C.F.R. § 4.14. After resolving all doubt in favor of the Veteran, the Board finds that effective November 6, 2012, the Veteran's lumbar spine disability more nearly approximates a 20 percent rating. Although the November 2012 examination reflected no guarding or muscle spasm of the thoracolumbar spine, and revealed, at worst, forward flexion limited to 80 degrees after repetition, the examiner stated that in her opinion, the degree of functional loss that results from flare-ups of symptoms or on extended use is severe. She stated the Veteran is able to continue work at his sedentary job and has denied incapacitating episodes, but does report having quite a bit of difficulty sitting and arising from the toilet, and the need to sleep propped upright or on his belly with flare-ups. He is unable to bend or lift with flare-ups and is unable to stand more than a few minutes without low back pain which radiates to the right lower extremity. However, the Board notes the Veteran described that during flare-ups he is unable to stand for longer than a few minutes and the numbness in the right lower leg starts from the mild back pain which becomes moderate by the end of the day. Thus, in accordance with DeLuca, and with resolution of reasonable doubt in the Veteran's favor, the Board will assign a 20 percent evaluation to contemplate functional loss during flare-ups as noted in the November 2012 VA examination. However, a higher rating is not warranted as there is no objective evidence supporting an evaluation of 40 percent even considering his complaints of pain and functional loss. On the 2012 VA examination, the Veteran was able to forward flex to 90 degrees, reporting pain at 10 degrees. On repetition, however, motion decreased to 80 degrees forward flexion. While the examiner opined that functional impairment was severe on flare-ups, her assessment also contemplated the radiculopathy to the right leg, which is separately rated. With regard to the back complaints, the Veteran described that during flare-ups he is unable to stand for longer than a few minutes and the numbness in the right lower leg starts from the mild back pain which becomes moderate by the end of the day. Such description does not suggest the Veteran is restricted to forward flexion of 30 degrees or less. Nor are there any objective findings in the record wherein the Veteran's forward flexion is functionally limited to 30 degrees or less. Accordingly, the preponderance of the evidence is against a rating in excess of 20 percent for the period beginning November 6, 2012 under the General Rating Formula for Diseases and Injuries of the Spine. Moreover, the Board finds that the preponderance of the evidence is against entitlement to a higher evaluation at any time during the course of the claim under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. None of the evidence indicates the Veteran has experienced incapacitating episodes of IVDS during the course of the claim. The Veteran denied experiencing incapacitation during the 2009 examination and he denied any incapacitating episodes over the previous twelve months due to intervertebral disc syndrome during the November 2012 examination. The Board acknowledges that the Veteran stated in February 2013 that he had incapacitating episodes every time he took medication for his back. However, the rating criteria require incapacitating episodes of IVDS, not because medication makes him tired. Moreover, the rating criteria indicate that these episodes require bed rest prescribed by a physician and treatment by a physician. Such is not shown by the medical evidence, and the Veteran has conceded that he does not currently seek treatment. Therefore, a higher rating under Diagnostic Code 5243 based on incapacitating episodes is not warranted. The Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his lumbar IVDS with degenerative arthritis. Accordingly, a rating in excess of 10 percent for IVDS with degenerative arthritis prior to November 6, 2012 and in excess of 20 percent thereafter is not warranted at any time during the course of the appeal. The Board has also considered whether the Veteran's disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2012); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Veteran alleges that the medication he takes for his lumbar spine disability causes incapacitating drowsiness and an inability to drive. To the extent such impairment is not fully contemplated by the rating criteria applicable during the appeal period, the Board will consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization to warrant referral for extraschedular consideration. Here, the record does not reflect any marked occupational impairment or hospitalizations during the appeal period. The 2009 VA examiner noted only mild impact on daily activities, and the November 2012 VA examiner noted that the Veteran's thoracolumbar spine condition did not impact his ability to work. Accordingly, referral for consideration of an extraschedular evaluation in this case is not in order. Id. ORDER An initial rating in excess of 10 percent for IVDS with degenerative arthritis changes for the period prior to November 6, 2012 is denied. Beginning November 6, 2012, an evaluation of 20 percent, but no higher, for IVDS with degenerative arthritis changes is granted, subject to the rules and regulations governing the payment of VA monetary benefits. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine, and applied it to award a staged rating. However, as the preponderance of the evidence is otherwise against the Veteran's claim, the doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ____________________________________________ K.A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs