Citation Nr: 0810737 Decision Date: 04/01/08 Archive Date: 04/14/08 DOCKET NO. 04-04 296 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to service connection for pulmonary asbestosis and asbestos related pleural disease. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Veteran and his spouse. INTRODUCTION The veteran had active service from January 1961 to November 1964. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In April 2006, the Board affirmed the RO's decision in this claim. The veteran appealed the case to the U.S. Court of Appeals for Veterans Claims (Court). In September 2007, the VA General Counsel and the veteran's representative filed a motion with the Court. The Court approved the joint motion in October 2007, vacating and remanding the Board's decision in this case. FINDING OF FACT The veteran's alleged pulmonary asbestosis and asbestos related pleural disease began many years after service and was not caused by any incident of service, including alleged asbestos exposure. CONCLUSION OF LAW Pulmonary asbestosis and asbestos related pleural disease, claimed as due to asbestos exposure, was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION In the joint motion of September 2007, the parties did not dispute the factual background the Board cited in the April 2006 decision, nor did it dispute the law as applied by the Board in April 2006. Instead, it appears that the joint motion disputes the Board's factual findings regarding this case, which the Board will address below. As the Board noted in April 2006, service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease that was incurred or aggravated during active military service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). Direct service connection generally requires evidence of a current disability with a relationship or connection to an injury or disease or some other manifestation of the disability during service. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated subsequent to service. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. At 495-97. Disorders diagnosed after discharge may still be service connected if all the evidence, including relevant service records, establishes that the disorder was incurred in service. 38 C.F.R. § 3.303(d). There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos- related information as M21-1, Part VI. The Court has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The applicable section of M21-1MR is Part IV, Subpart ii, Chapter 1, Section H, Topic 29. It lists some of the major occupations involving exposure to asbestos, including mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. Also of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). M21-1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21-1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. In short, with respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Supbart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). In this case, the veteran claims that he was exposed to asbestos during his active duty. In the April 2006 Board decision, it was noted that the RO obtained the veteran's service personnel records (SPRs), and they contain no evidence of the veteran being exposed to asbestos nor indications that the veteran's work during service would have lead him to "extensive" exposure to asbestos. The parties of the joint motion appear to dispute the Board's finding that the SPRs contain no evidence of the veteran being exposed to asbestos nor indications that the veteran's work during service would have lead him to "extensive" exposure to asbestos. The parties of the joint motion, citing "McGinnis" (this appears to be a misspelling of the Court's decision in McGinty v. Brown, 4. Vet. App. 428 (1993), both considered and cited in the Board's April 2006 decision), finds that the Board found no evidence of "extensive exposure to asbestos" during service which, without further reasons or bases, similarly to the decision in McGinty, "prevents effective judicial review". Joint Motion at page six. The basis for this finding by the parties of the joint motion is very unclear. The Board in April 2006, citing the SPRs, found no "extensive" exposure to asbestos. The review of SPRs would appear to the undersigned to be a reason and a bases to find no extensive exposure to asbestos during service. Based on the above, it appears that the parties of the joint motion are overturning a finding of the Board which was based on a review of evidence. In any event, if the parties of the joint motion require more reasons and bases for the determination that the veteran's exposure to asbestos was not "extensive", beyond the above, the Board need look no further than the veteran's own testimony. At the hearing before the Board in January 2006, the veteran never clearly indicates direct exposure to asbestos, that he was ever required to work with asbestos, or that he was ever required to remove asbestos from buildings. The veteran contends that he may have been exposure to asbestos in the building he worked in or the machinery he worked with. Transcript at pages three and fourth. The fact that the veteran states he "thinks" he was exposed to asbestos during service clearly indicates his own nonclarity regarding this critical issue. Importantly, the veteran never clearly indicates direct physical contact with asbestos in service, leading the Board to the finding that veteran's exposure to asbestos was not "extensive". Most importantly, the undersigned has had the opportunity to speak with the veteran directly, at hearing, and listen to his testimony (the transcript is of record). The parities of the joint motion have not. In this regard, the undersigned would not dispute the veteran's own belief that his current disorder is related to service. In this sense, the veteran's "creditability" is not at issue. However, his statements regarding how he was exposed to asbestos during service were very vague and unclear at hearing. He seem to base this belief on what he has been "told by EPA" (transcript at page three) and asks the VA to investigate how much asbestos was used as insulation and in the circuitry boards (transcript at page four). His statements regarding how he was exposed to asbestos appear based on what he was told or learned many years after service. In regards to the issue of how he was exposed to asbestos or in what quantities of asbestos he was exposed to, the veteran's testimony is found to provide evidence against his own claim. Additionally, the veteran's service medical records (SMRs) show no complaints, findings, or diagnoses of any lung disorders. Evaluations of the veteran during service make no reference to any such disorders, or indications of such disorders. His induction and separation examinations are negative for lung disorders. Clearly, the service records provide evidence against this claim. In fact, in his discharge evaluation of November 1964, the veteran denied he had any shortness of breath, providing more negative evidence against this claim. This finding does not dispute or reject the possibility that a lung disorder can begin years after service based on asbestos exposure, but simply states that the service medical records provide evidence against this claim. After leaving active service in 1964, the veteran worked in several jobs in different fields, as the veteran described in his chart presented to the Board, with asbestos exposure after service for many years. The Board finds that these facts provide more negative evidence against this claim as they indicate: (1) that the veteran was able to function well after service; and (2) asbestos exposure after service. The joint motion disputes the finding above by indicating that the Board "appears to have accepted Appellant's lay testimony regarding his potential for exposure to asbestos after service, but sub silentio, rejected his theories of in- service exposure." Joint Motion at page 5. The basis of this finding from the parties of the joint motion, based on the two findings of the Board in April 2006, is very unclear. The Board simply stated what the veteran himself does not dispute: (1) that he worked for years after service without a pulmonary problem; and (2) he was exposure to asbestos after service. The fact that the veteran accepted compensation for his post-service asbestos exposure would appear to make this second finding indisputable. Most importantly, however, the Board, in making these two findings above, did not explicitly or implicitly reject the veteran's theories of in-service exposure. The question of whether the veteran was exposed to asbestos in service is not the critical issue in this case (based on the fact that the veteran served on active duty more forty years ago, the Board finds that a remand by the Board to the RO will never resolve this issue). The critical issue in this case is whether it is at least as likely as not that the veteran's current disorder was caused by his military service. In this regard, the Board must look to all facts in this case, including the critical fact that the veteran was able to function well for decades after service and that he had, by his own admission, significant asbestos exposure after service and, based on his own testimony and a review of the record, limited (if any) exposure to asbestos during service. The veteran claims to have been diagnosed with asbestosis in 1997, 33 years after service. The United States Court of Appeals for the Federal Circuit has determined that such a lapse of time is a factor for consideration in deciding a service connection claim. Maxson v. Gober, 230 F.3rd 1330, 1333 (Fed. Cir. 2000). This fact provides evidence against his claim, for other reasons that will be cited below. The medical evidence the veteran has submitted does not support his belief that the disorder is related to his service, providing more evidence against this claim. For example, the March 1998 medical report of "R.J.M.", M.D., notes exposure to asbestos insulation materials while working in maintenance repair as a painter in various positions from 1961 through the 1980's. It was noted that the exposure occurred on a "regular basis." The Board finds that Dr. M's finding of "significant" exposure to asbestos is correct in terms of the post-service exposure (which the veteran has been very vague about in his statements to the VA). The veteran's testimony and service records would refute a finding of "significant" exposure during service. The Board must note his long length of exposure after service as well. Overall, the Board finds this report provides evidence against the claim as it indicates that the majority of the veteran's exposure to asbestos was well after service (1964 though the 1980's). Once again, it is important for the veteran and the parties of the joint motion to understand that the Board is not disputing the fact that the veteran may have been exposure to asbestos of some kind during service (at this late date, the Board finds that it would be impossible for the VA to refute the fact that the veteran was exposed to asbestos during service), but simply that the Board, as a factual finding, has determined that evidence the veteran himself has submitted provides evidence against his own claim. As the veteran testified before the Board, he has received compensation for his disability on the basis of post-service exposure to asbestos, providing more evidence against this claim. The medical articles submitted by the veteran in this case do not support the theory of entitlement in light of the evidence cited above. The Board notes that, with regard to medical treatise evidence, the Court has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). In the present case, the treatise evidence submitted by the veteran is not accompanied by the opinion of a medical expert that clearly supports this claim, but instead indicates post- service asbestos exposure. The Board concludes that this information is insufficient to establish the required medical nexus opinion. With respect to the veteran's own contentions, and his spouse, a layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997). See also Bostain v. West, 11 Vet. App. 124, 127 (1998) citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994). When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of service incurrence and continuity of symptomatology sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). ` Unlike varicose veins under Barr, a dislocated shoulder under Jandreau, a finding that a pulmonary condition is related to exposure to asbestos more than 40 years ago is not a condition capable of lay diagnosis. See Espiritu and Woehlaert v. Nicholson, No. 05-2302 (U.S. Vet. App. August 24, 2007). The Board finds that the weight of the competent evidence demonstrates that the veteran's current disorder began many years after service and was not caused by any incident of service, including asbestos exposure. The Board finds that the service and post-service medical records provides negative evidence against this claim, indicating a condition that began many years after service. The condition was neither incurred in nor aggravated by service. As the preponderance of the evidence is clearly against the claim for service connection, the benefit-of-the-doubt rule does not apply, and the claim for service connection must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Duty to Notify and the Duty to Assist Review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). That is, by letters dated in October 2002 and November 2001, as well as information provided in the December 2003 statement of the case (SOC), the RO advised the veteran of the evidence needed to substantiate his claim and explained what evidence VA was obligated to obtain or to assist the veteran in obtaining and what information or evidence the veteran was responsible for providing. In an October 2002 report of contact, the veteran stated that he did not have anything else to submit. Thus, the Board finds that the RO has provided all notice required by the VCAA. 38 U.S.C.A. § 5103(a). See Quartuccio v. Principi, 16 Vet. App. 183 (2002). The Board observes that the RO issued the VCAA notice in November 2001, prior to the adverse determination on appeal. Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The RO did not specifically ask the veteran to provide any evidence in his possession that pertains to the claim. Id. at 120-21. However, the Board is satisfied that the letters, the veteran's testimony at two hearings, and the actions before the Court make clear the VA has otherwise fully notified the veteran of the need to give VA any evidence pertaining to his claim, such that there is no prejudice to the veteran. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). See Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). Moreover, neither the veteran nor his representative has made any showing or allegation that the content of the VCAA notice resulted in any prejudice to the veteran. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005) (the appellant bears the initial burden of demonstrating VA's error in the adjudication of a claim and how that error was prejudicial). The veteran has been notified of the applicable laws and regulations that set forth the criteria for entitlement to service connection. The Board is aware of the decision in Dingess v. Nicholson, 19 Vet. App. 473 (2006), regarding notice requirements. Based on a review of this decision, the Board finds no basis to remand this case to the RO for additional development. Simply stated, based on the notice already provided to the veteran cited above, a further amended notice to the veteran would not provide a basis to grant this claim. Moreover, neither the veteran nor his representative has made any showing or allegation that the content of the VCAA notice resulted in any prejudice to the veteran. As discussed above, the Board finds that the RO has ultimately provided all notice required by § 5103(a). Therefore, any failure to make a specific request in the VCAA letter is non-prejudicial, harmless error. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). See Sutton v. Brown, 9 Vet. App. 553 (1996); see also 38 C.F.R. § 20.1102 (harmless error). In Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit held that any error by VA in providing the notice required by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1) is presumed prejudicial, and that once an error is identified as to any of the four notice elements the burden shifts to VA to demonstrate that the error was not prejudicial to the appellant. The Federal Circuit stated that requiring an appellant to demonstrate prejudice as a result of any notice error is inconsistent with the purposes of both the VCAA and VA's uniquely pro-claimant benefits system. Instead, the Federal Circuit held in Sanders that all VCAA notice errors are presumed prejudicial and require reversal unless VA can show that the error did not affect the essential fairness of the adjudication. To do this, VA must show that the purpose of the notice was not frustrated, such as by demonstrating: (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or (3) that a benefit could not have been awarded as a matter of law. Although not specifically discussed by the court, some other possible circumstances that could demonstrate that VA error did not prejudice the claimant include where the claimant has stated that he or she has no further evidence to submit, or where the record reflects that VA has obtained all relevant evidence. In this case, the Board, based on a review of the appellant's statements in this case, finds that the claimant has demonstrated an understanding of the evidentiary requirements, with actual knowledge of what he needs to submit, rebutting any presumption of prejudice. Statements from the veteran or his representative to the Board and Court clearly support this finding. As such, even if there were some type of problem with the notice provided by the RO, the Board finds that there have been no notice errors that have resulted in any prejudice to the appellant or affected the essential fairness of the adjudication. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). With respect to the duty to assist, the RO has secured the veteran's service medical records, VA medical records, VA examinations, and private medical records. As there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. With respect to the duty to assist, the RO has secured the veteran's service medical records, service personnel records, VA medical records, and private medical records. As there is no other indication or allegation that relevant evidence remains outstanding, the Board finds that the duty to assist has been met. 38 U.S.C.A. § 5103A. The Board notes that an etiological opinion has not been obtained. However, the Board finds that the evidence, discussed above, which indicates that the veteran did not receive treatment for the claimed disorder during service or that there is any competent medical evidence showing or indicating a nexus between service and the disorder at issue, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claim. See 38 C.F.R. § 3.159 (c)(4). As service and post-service medical records have been found by the Board to provide no basis to grant this claim, and have been found to provide evidence against the claim, the Board finds no basis for a VA examination to be obtained. The parties of the joint motion appear to dispute this finding, as cited in the April 2006 Board decision. In particular, the Board is required to determine whether the veteran's lay evidence, if credible, and coupled with Dr. "M.'s" report, requires the VA to furnish a medical examination. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation (service connection) claims, the VA must provide a VA medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim. The Board rejects the joint motion's judgment that Dr. M.'s report provides a basis to find point (3), an "indication" that the disability at issue may be associated with service. In fact, based on the facts as cited by the joint motion, the Board finds that this report provides evidence against the veteran's claim. The March 1998 report of Dr. M. (in the future, it would be of great assistance to the Board if the parties of the joint motion cite the date of the report, as well as the name of the health care provider, as the Board does not have access to the record as organized by the Court), the doctor cites to an approximately 20 year or more history of asbestos exposure following service in 1964. The examiner also notes a history of smoking. Importantly, the doctor makes no reference to the veteran's military service. A latency period of greater than 15 years would indicate a range of exposure well inside the veteran's post-service activities. Further, it appears that based on this medical report, the veteran's attorney, David M. Lipman, is still actively pursuing a claim against General Electric (see Attorney Lipman's February 2006 letter to the veteran, contained with the claims file, on page two) based on the veteran's post- service asbestos exposure. The February 2006 settlement report from Attorney Lipman cited numerous lawsuits against post-service employers or those who manufacture asbestos. The Board finds this report provides more evidence against this claim. Even if the Board concedes point (3) of the McLendon test, the Board finds sufficient competent medical evidence on file for the VA to make a decision on the claim. The service and post-service treatment records, along with extensive exposure to asbestos after service, leads to the conclusion that the veteran's post-service asbestos exposure has caused his current disability. The Board finds that the veteran's "significant" post-service exposure, along with limited (if any) service exposure (for reasons cited above), provides a basis to find that the preponderance of evidence is against this claim and that a VA examination is not warranted. The standards of McLendon are not met in this case. The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002). However, the outcome of this claim hinges on what occurred, or more precisely what occurred following service. In the absence of evidence of an in-service disease or injury, in light of "significant" (as cited by Dr. M.'s report) exposure to asbestos for many years after service (much longer than during service), and in light of the Board's finding that there was no "extensive" exposure to asbestos during service, referral of this case to obtain an examination and/or an opinion as to the etiology of the veteran's claimed disability would in essence place the examining physician in the role of a fact finder. This is the Board's responsibility. In other words, any medical opinion which provided a nexus between the veteran's claimed disability and his military service would necessarily be based solely on the veteran's uncorroborated theories regarding exposure to asbestos during service, as oppose to the significant asbestos exposure after service. The Court has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant (or, in this case, an unsubstantiated theory) is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion on when it is based exclusively on the recitations of a claimant that have been previously rejected.) In this case, the Board has found significant exposure to asbestos after service, and no extensive exposure to asbestos during service. Based on these findings, a medical opinion would serve no constructive purpose. The holding in Charles was clearly predicated on the existence of evidence of both in-service incurrence and of a current diagnosis. Simply stated, referral of this case for an examination or obtainment of a medical opinion under the circumstances here presented would be a useless act. The duty to assist is not invoked, even under Charles, where "no reasonable possibility exists that such assistance would aid in substantiating the claim." See also 38 U.S.C.A. § 5103A(a)(2) (West 2002). The Board makes such a finding in this case. The Board asks the veteran, the parties of the joint motion, and the Court to carefully review the facts of the case. If this case were to be remanded for an examination, any medical opinion (based on the facts of this case) that provides any evidence in support of this claim would be based to total conjecture. Further efforts to attempt to determine the exact exposure of the veteran during service more than 40 years ago would lead nowhere. The Board believes it can not remand a case to the RO for no constructive purpose. Given the facts of this case, it is more likely than not that the veteran's "significant" and long term exposure to asbestos following service has caused his current disability and that further development of this claim would not aid in substantiating this claim. ORDER The appeal is denied. ____________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs