Citation Nr: 0811029 Decision Date: 04/03/08 Archive Date: 04/14/08 DOCKET NO. 06-18 642 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to an effective date prior to March 16, 2005 for the grant of service connection for major depressive disorder. 2. Entitlement to an effective date prior to March 16, 2005 for the grant of a total disability evaluation based upon individual unemployability due to service-connected disability (TDIU). 3. Entitlement to an effective date prior to March 16, 2005 for the grant of Dependents' Educational Assistance (DEA) under Chapter 35 of Title 38 of the United States Code. [The issue of whether clear and unmistakable error (CUE) exists in an October 27, 1986 Board decision denying service connection for an acquired psychiatric disorder is addressed in a separate decision.] REPRESENTATION Appellant represented by: Lawrence D. Levin, Attorney WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD M. Vavrina, Counsel INTRODUCTION The veteran served on active duty from December 1950 to March 1955. These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. The veteran appeared at a video conference hearing before the undersigned Acting Veterans Law Judge in November 2007; a copy of the transcript is in the record. The Board also notes that disposition of this case has followed a grant of a motion to advance this appeal on the Board's docket pursuant to the provisions of 38 U.S.C.A. § 7107 (West 2002) and 38 C.F.R. § 20.900(c) (2007). The issue of entitlement to an effective date prior to March 16, 2005 for the grant of DEA under Chapter 35 of Title 38 of the United States Code is addressed in the REMAND section of this decision and is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. All notification and development action needed to fairly adjudicate the claims decided herein has been accomplished. 2. The veteran's claim of service connection for a psychiatric disorder was previously denied in Board decisions dated in October 1986 and August 1990. 3. On January 13, 1992, informal claims to reopen previously denied claims for service connection for systemic lupus erythematosus (SLE) and a psychiatric disorder were received; the November 2000 RO's denial of service connection for SLE was affirmed by the Board in a December 2004 decision. 4. Since the RO rendered a decision on the veteran's service-connection claim for SLE in the November 2000 decision, but failed to address the veteran's claim to reopen his previously denied claim for a psychiatric disorder, that decision is final as to the veteran's claim for service connection for a psychiatric disorder. 5. In a December 2004 decision, the Board affirmed the RO's November 2000 rating decision, denying entitlement to a TDIU. 6. On March 16, 2005, the RO received a claim for service connection for depression, secondary to service-connected lupus disease, and for a TDIU. 7. Based on a June 16, 2005 VA examiner's opinion that the veteran's depression was due to his service-connected lupus, in an August 2005 rating decision, the RO granted service connection for major depressive disorder, assigning an initial 50 percent rating, and a TDIU, effective March 16, 2005. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date prior to March 16, 2005 for the grant of service connection for major depressive disorder have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110, 7104, 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.400, 20.1100, 20.1103 (2007). 2. The criteria for entitlement to an effective date prior to March 16, 2005 for a TDIU have not been met. 38 U.S.C.A. §§ 5103, 5103A, 5107, 5110, 7104, 7105 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.159, 3.340, 3.400, 4.16, 20.1100, 20.1103 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A (West 2002 & Supp. 2007), 5107, 5126; 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). A proper VCAA notice must inform the claimant of any information and evidence not of record that is necessary to substantiate the claim, that VA will seek to provide, and that the claimant is expected to provide; and must ask the claimant to provide any evidence in her or his possession that pertains to the claim. 38 U.S.C.A. § 5103(a); C.F.R. § 3.159(b)(1). Any error in VCAA notification should be presumed prejudicial, and VA has the burden of rebutting this presumption. Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). In Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit (Federal Circuit) reaffirmed principles set forth in earlier Federal Circuit and United States Court of Appeals for Veterans Claims (Court) cases in regard to the necessity of both a specific VCAA notification letter and an adjudication of the claim at issue following that letter. See also Mayfield v. Nicholson, 19 Vet. App. 103, 121 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); Mayfield v. Nicholson, 20 Vet. App. 537 (2006). The Mayfield line of decisions reflects that a comprehensive VCAA letter, as opposed to a patchwork of other post- decisional documents (e.g., statements of the case (SOCs) or supplemental SOC (SSOCs)), is required to meet VA's notification requirements. At the same time, VCAA notification does not require an analysis of the evidence already contained in the record and any inadequacies of such evidence, as that would constitute a preadjudication inconsistent with applicable law. The VCAA letter should be sent prior to the appealed rating decision or, if sent after the rating decision, before a readjudication of the appeal. A SSOC, when issued following a VCAA notification letter, satisfies the due process and notification requirements for an adjudicative decision for these purposes. The Board is also aware of the considerations of the Court in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), regarding the need for notification that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In TDIU cases, a claimant must be provided with information pertaining to assignment of an effective date if a TDIU is awarded. Id. In the present case, such notification was provided in a July 2006 letter, following which the veteran and his attorney provided testimony and further written statements. In the present case, the veteran was issued a VCAA letter meeting the specific requirements of C.F.R. § 3.159(b)(1) in April 2005. As this letter was issued prior to the appealed rating decision, this case raises no procedural concerns in view of the Mayfield line of decisions. The Board is aware that the April 2005 VCAA letter addressed the initial service connection and TDIU claims, rather than the effective date claims presently before the Board. The question of whether a further VCAA letter for such "downstream" issues is required was addressed by the VA Office of General Counsel in VAOPGCPREC 8-2003 (Dec. 22, 2003). In this precedent opinion, the General Counsel held that, in such circumstances, an SOC was required in cases involving a "downstream" issue, but 38 U.S.C.A. § 5103(a) did not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. In this regard, the Board notes that an SOC was in fact issued in April 2006. As to VA's duty to assist the veteran with the obtaining of evidence necessary to substantiate a claim, under 38 U.S.C.A. § 5103A, in this case VA has obtained available service treatment records and available post-service treatment records reported by the veteran, and there is no indication from the claims file of additional relevant medical treatment for which VA has not obtained, or made sufficient efforts to obtain, corresponding records. Reports of VA examinations and private physicians' statements have also been associated with the record. Copies of the veteran's hearing transcript and his statements and those of his attorney, on his behalf, have been associated with the record. Following his November 2007 hearing, the veteran submitted a Social Security Administration (SSA) disability benefits decision from April 1987 (accompanied by a waiver of RO review, per 38 C.F.R. § 20.1304). It is not entirely clear whether additional medical records pertaining to this decision still exist. However, as detailed below in this decision, any denial of his effective date claims prior to that date is predicated on the dates of receipt of prior claims and of the issuance of prior final Board/RO decisions, rather than the medical evidence of record. For that reason, efforts to obtain SSA records, if still in existence, would not serve the veteran's claims but would only delay a favorable outcome. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided); but see 38 C.F.R. § 3.159(c)(2) (duty to assist provisions for SSA records, where "relevant"). Thus, the Board finds that all relevant facts have been properly developed in regard to the claims decided herein, and no further assistance is required in order to comply with VA's statutory duty to assist with the development of facts pertinent to this claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In summary, the duties imposed by the VCAA have been considered and satisfied. Through notices of the RO, the claimant has been notified and made aware of the evidence needed to substantiate his claims for an earlier effective date for award of service connection and of a TDIU, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. There is no additional notice that should be provided, nor is there any indication that there is additional existing evidence to obtain or development required to create any additional evidence to be considered in connection with the claims decided herein. Consequently, any error in the sequence of events or content of the notice is not shown to prejudice the appellant or to have any effect on the appeal. Any such error is deemed harmless and does not preclude appellate consideration of the matters being decided. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006) (rejecting the argument that the Board is without authority to consider harmless error). See also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. Applicable Laws and Regulations Generally, in service-connection cases, the effective date is the date of receipt of claim or the date entitlement arose, whichever is later. However, if the claim is received within one year of separation from service, the effective date will be the day following the date of separation from service. 38 C.F.R. § 3.400(b)(2). In cases involving new and material evidence, where evidence other than service department records is received within the relevant appeal period or prior to the issuance of the appellate decision, the effective date will be as though the former decision had not been rendered. 38 C.F.R. § 3.400(q)(1). In cases where the evidence is received after the final disallowance, the effective date is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400(q)(2). For effective date purposes, a TDIU claim is treated as a claim for increased disability compensation. Unless otherwise specified, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase is to be fixed in accordance with the facts found, but will not be earlier than the date of receipt of the claimant's application. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400. However in increased ratings claims, the law provides an exception to this general rule holding that the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if VA receives a claim within one year after that date. 38 U.S.C.A. § 5110(b); 38 C.F.R. § 3.400(o)(2). If the increase became ascertainable more than one year prior to the date of the claim, then the proper effective date would be the date of the claim. In a case where the increase became ascertainable after the effective date of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability, ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). However, even when these percentage requirements are not met, entitlement to a total rating, on an extra-schedular basis may nonetheless be granted, in exceptional cases, and pursuant to the prescribed procedures, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C.A. § 5101(a)). 38 C.F.R. § 3.155 provides that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. Such an informal claim must identify the benefit sought. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999). VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a) (2007). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. Under the provisions of 38 C.F.R. § 3.157(a), if a formal claim for compensation has previously been allowed, or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization can be accepted as an informal claim for benefits. Acceptance of a report of examination or treatment as a claim for increase is subject to the payment of retroactive benefits from the date of a report or for a period of one year prior to the date of receipt of the report. 38 C.F.R. § 3.157. As to reports prepared by VA or the uniformed services, the date of receipt of such a claim is deemed to be the date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital. 38 C.F.R. § 3.157(b)(1). For reports prepared by a non-VA hospital where the veteran was maintained at VA expense, the date of admission to the hospital is accepted as the date of receipt of claim if VA maintenance was authorized prior to admission. For all other reports, including reports from private physicians, laymen, and state and other institutions, the date of receipt of the reports is accepted as the date of receipt of an informal claim. 38 C.F.R. § 3.157(b). III. Service Connection of Major Depressive Disorder During his testimony and in various written statements, the veteran and his attorney assert that an earlier effective date is warranted for service connection for major depressive disorder. In support, they point to a November 1981 VA examination report indicating that the veteran's major depressive disorder was connected to his service-connected "[l]upus" and rendered him unemployable. They argue that veteran's psychiatric condition was manifest in service and that the veteran had received VA psychiatric treatment within one year following service and that as such the veteran's psychiatric disorder should be considered to have manifested itself while in service. These arguments are discussed in the Board's contemporaneously dated decision denying the veteran's claim of CUE in an October 1986 decision. The Board has reviewed the veteran's claims file and observes that, during an August 15, 1979 hearing, he raised a claim for a psychiatric disorder as secondary to his service- connected discoid lupus erythematosus (DLE). This claim was denied in an August 1980 rating decision. The veteran appealed this decision to the Board, and the denial of service connection for an acquired psychiatric disorder and for SLE was affirmed in an October 1986 Board decision. [Parenthetically, the Board notes that, in a contemporaneously issued decision, the Board has denied the veteran's motion to revise or reverse the October 27, 1986 Board decision on the basis of CUE]. Subsequently, the veteran reapplied for service connection for SLE and for a psychiatric disorder in 1987, with the submission of new medical evidence. The RO denied both claims in June 1987; the veteran appealed the RO's denials to the Board. The Board affirmed the denials as to both claims in an August 1990 decision. Although the veteran perfected an appeal to the Board's August 1990 decision, by Order dated in March 1992, the Court granted the appellant's motion to dismiss, and dismissed, the appeal. Thus, both Board decisions are "final" under the provisions of 38 U.S.C.A. § 7104. On January 13, 1992, the RO received a statement from the veteran, in which he complained about a VA doctor and noted the following: Please be advised, I'm a service- connected disabled Korean War Veteran (TB & Lupus) presently in litigation for increased disability due to the increased severity denoting (with substantial medical evidence, both within and outside the VA medical complexes) Systemic Lupus erythematosus and a consequential serious nerv[i]ous condition. The RO forwarded this letter to the Philadelphia VA Medical Center in the same month, considering it a complaint about treatment by a VA physician, and not an informal claim for VA benefits. The Board views this statement as an informal claim to reopen previously denied claims for service connection for SLE and for a psychiatric disorder. Later, on July 21, 1999, the veteran requested an increase in compensation, noting that his anxiety had "gotten worse over the concern of Systemic lupus." In August 1999, the RO notified the veteran that service connection had previously been denied for both SLE and a psychiatric disorder and informed him that he had to submit new and material evidence to reopen his claims. Later, in the same month, the veteran notified the RO that he was withdrawing his increased compensation claim, noting that the increase he was requesting "was not service-connected." The RO did not clarify this matter any further with the veteran. In July 2000, the veteran filed claims for increased ratings for his service-connected disabilities and for a TDIU. Subsequently, in a November 2000 rating decision, the RO, inter alia, denied service connection for SLE, denied increased ratings for the veteran's service-connected DLE and for pulmonary tuberculosis (TB) and denied entitlement to a TDIU. Except for an increased rating for TB, the veteran appealed the remainder of this decision to the Board, and the denials of service connection for SLE, of a higher rating for service-connected DLE, and for a TDIU were affirmed in a December 2004 Board decision. As the veteran did not appeal the December 2004 Board decision, it became "final" under the provisions of 38 U.S.C.A. § 7104 and 38 C.F.R. § 20.1100. The veteran's most recent application for service connection for major depressive disorder, as secondary to DLE, and for a TDIU was received by the RO on March 16, 2005. Based on the findings from a June 2005 VA psychiatric examination, in the appealed August 2005 rating decision, the RO granted service connection for major depressive disorder, as secondary to DLE, and a TDIU, effective from March 16, 2005. As noted above, 38 C.F.R. § 3.155 provides that any communication or action indicating intent to apply for one or more VA benefits may be considered an informal claim. 38 C.F.R. § 3.1(p) defines application as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. VA is required to identify and act on informal claims for benefits. 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). Here, the Board views the January 13, 1992 statement from the veteran as an informal claim to reopen his previously denied claims for service connection for a psychiatric disorder and for SLE. In the November 2000 rating decision, the RO did not address the veteran's claim for service connection for a psychiatric disorder. In Deshotel v. Nicholson, 457 F.3d 1258 (Fed. Cir. 2006), the Federal Circuit held that where a veteran files more than one claim with the RO at the same time, and the RO's decision acts (favorably or unfavorably) on one of the claims but fails to specifically address the other claim, the second claim is deemed denied, and the appeal period begins to run. As such, it is deemed that the claim for service connection for a psychiatric disorder was denied in the November 2000 rating decision. Id.; see also Andrews v. Nicholson, 421 F.3d 1278 (Fed. Cir. 2005). Thus, had the veteran in this case believed that the RO improperly failed to address his claim of service connection for a psychiatric disorder, his remedy was either to file a timely direct appeal, or allege CUE in the November 2000 determination that failed to address his claim. See Deshotel, 457 F.3d at 1262. Since the veteran did not appeal that issue, it became final, and can only be revised on the basis of CUE. See 38 C.F.R. § 20.1103 (2007). No additional correspondence that could be construed as an informal or formal claim was received from the veteran until March 16, 2005, at which time the RO received an informal claim for service connection for major depressive disorder, as secondary to DLE. Although the veteran may believe that he should be awarded compensation benefits back to 1977, the finality of the 1986 and 1990 Board decisions and the November 2000 rating decision limit how far back the effective date of the award of service connection for major depressive disorder may be assigned. 38 U.S.C.A. §§ 5110, 7104, 7105; 38 C.F.R. §§ 3.400(q)(2). As there is no evidence of the veteran having disagreed with the November 2000 rating decision with regard to its failure to address his claim for service connection for a psychiatric disorder within one year of receiving notice, and no evidence of any subsequent correspondence having been received until March 16, 2005, the criteria for an effective date earlier than March 16, 2005, have not been met as a matter of law. The Board notes in passing the veteran has not set forth specific allegations of error, of either fact or law, to raise the issue of CUE in the November 2000 rating decision that failed to address the issue of service connection for a psychiatric disorder. Thus, any potential claim of CUE in that decision is not presently on appeal, and any attempt by the Board to address the matter could result in prejudice to the veteran should he attempt to raise such a claim in the future. IV. TDIU During his testimony and in various written statements, the veteran and his attorney assert that an earlier effective date for a TDIU is warranted, claiming that the veteran has been unemployed since 1977 due to his service-connected disabilities and noting that he has been receiving SSA disability since then. The claims file reflects that the veteran has filed multiple applications for increased ratings for his service-connected disabilities and for a TDIU. Most recently, in a November 2000 rating decision, the RO denied claims for a rating in excess of 50 percent for his DLE and for a TDIU. The veteran appealed this rating decision to the Board. In a June 2004 opinion, a VA physician stated that the veteran's DLE, either alone or in combination with his other service-connected disability(ies), did not render the veteran unable to obtain or retain substantially gainful employment. Based on this opinion and clinical findings in a May 2004 VA examination, in a December 2004 decision, the Board affirmed the RO's denial of both claims and the veteran did not appeal this decision to the Court. Nor has the veteran raised the issue of CUE in the December 2004 Board decision. Thus, this Board decision is final. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.1100. As noted above, on March 16, 2005, the RO received a formal application for a TDIU. This claim was accompanied by a February 16, 2005 statement from a private physician, E. W. F., M.D., who, as in previous statements submitted prior to the December 2004 Board decision, opined that the veteran's lupus and depression rendered him totally and permanently disabled from any form of employment. In the August 2005 rating decision, the RO granted service connection for major depressive disorder and assigned an initial 50 percent rating, effective March 16, 2005, the date of receipt of the veteran's claim. This grant increased the veteran's combined disability rating from 50 percent to 80 percent, effective March 16, 2005. 38 C.F.R. § 4.25. Here, since the veteran was not service-connected for major depression until March 16, 2005, the veteran's other service- connected disabilities DLE and TB would not, either alone or together, have met the schedular requirements for a TDIU and there is no persuasive opinion of record stating that they - his DLE and TB - rendered the veteran unemployable. Thus, since the December 2004 Board decision is final and the veteran has not claimed CUE in that decision, and there is no evidence of any subsequent correspondence having been received until March 16, 2005, the criteria for an effective date earlier than March 16, 2005 for a TDIU, have not been met as a matter of law. In summary, there is simply no basis under the applicable laws and regulations that permit an effective date earlier than March 16, 2005, for the award of service connection for major depressive disorder or for the award of a TDIU under the circumstances of this case. Here, where the law is dispositive, the appeal must be denied as a matter of law. Sabonis, 6 Vet. App. at 430. ORDER The assignment of an effective date prior to March 16, 2005 for the grant of service connection for major depressive disorder is denied. The assignment of an effective date prior to March 16, 2005 for the grant of a TDIU is denied. REMAND To date, the veteran has received no VCAA notification specific to his claim for entitlement to an effective date prior to March 16, 2005 for the grant of DEA under Chapter 35 of Title 38 of the United States Code. Unlike the veteran's other claims, this claim cannot be treated as a "downstream" issue under VAOPGCPREC 8-2003 (Dec. 22, 2003), as initial entitlement to DEA was not among the issues listed in the April 2005 VCAA letter. Accordingly, the case is REMANDED to the RO, via the AMC, for the following action: 1. Send a letter to the veteran and his attorney explaining, in accordance with the provisions of 38 U.S.C.A. §§ 5103 and 5103A and 38 C.F.R. § 3.159, what information and evidence is necessary to substantiate his claim for entitlement to an effective date prior to March 16, 2005 for the award of DEA under Chapter 35 of Title 38 of the United States Code, what type of evidence VA will seek to provide, and what type of evidence that he is expected to provide, and request that he provide any and all relevant evidence in his possession. The letter should clearly explain to the veteran that he has a full one-year period to respond (although VA may decide the claim within the one-year period). 2. After completion of the above, and any additional notification and/or development deemed warranted, the veteran's claim remaining on appeal should be readjudicated. If the determination remains less than fully favorable to the veteran, he and his attorney should be furnished an SSOC that includes clear reasons and bases for all determinations, and they should be given and appropriate time period for response before the claims file is returned to the Board for further appellate consideration. The veteran and his attorney have the right to submit additional evidence and argument on the matter 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. 2007). ______________________________________________ M. R. VAVRINA Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs