Citation Nr: 0812453 Decision Date: 04/15/08 Archive Date: 05/01/08 DOCKET NO. 07-32 592 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for post-traumatic stress disorder (PTSD) for the purpose of accrued benefits. 2. Entitlement to service connection for bilateral flat feet for the purpose of accrued benefits. 3. Entitlement to service connection for bilateral hearing loss disability for the purpose of accrued benefits. 4. Entitlement to service connection for tinnitus for the purpose of accrued benefits. 5. Entitlement to service connection for a respiratory disorder for the purpose of accrued benefits. 6. Entitlement to service connection for a dental disorder for the purpose of accrued benefits. 7. Entitlement to service connection for the cause of the veteran's death. 8. Entitlement to Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. 9. Entitlement to death pension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Clifford R. Olson, Counsel INTRODUCTION The veteran served on active duty from August 1952 to June 1954. He died in May 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. FINDINGS OF FACT 1. There is no competent medical diagnosis of post-traumatic stress disorder (PTSD). The medical evidence establishes that the veteran had dementia due to neurosyphilis. 2. There is no competent medical evidence that the veteran had bilateral flat feet following service. 3. A bilateral hearing loss disability was not the result of disease or injury during the veteran's active service. 4. Tinnitus was not the result of disease or injury during the veteran's active service. 5. A respiratory disorder was not the result of disase or injury during the veteran's active service. 6. The veteran did not have a dental condition or disability, to include periodontal disease or extracted teeth, as a result of combat wounds or other trauma during his active military service. 7. The veteran died in May 2003, at age 76, due to cardiopulmonary arrest due to pneumonia. The fatal pneumonia was not a result of disease or injury in service. 8. Service connection was not in effect for any disability at the time of the veteran's death and service connection for any disability has not been subsequently established. 9. At the time of his death, the veteran was not in receipt of or entitled to receive compensation. 10. The appellant's income exceeds the applicable statutory levels for the annualized periods in which the income was received. CONCLUSIONS OF LAW 1. PTSD was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). 2. A bilateral flat feet disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303 (2007). 3. A bilateral hearing loss disability was not incurred in or aggravated by active military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 4. Tinnitus was not incurred in or aggravated by active military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). 5. A respiratory disorder was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304 (2007). 6. The criteria for entitlement to service connection for a dental disorder, for purposes of compensation have not been met. 38 U.S.C.A. §§ 1110, 1721, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.310(a), 4.150 (2007). 7. A service connected disability did not cause death or contribute substantially or materially to cause death. 38 U.S.C.A. §§ 1310, 5103, 5103A, 5107 (West 2002); 38 C.F.R. § 3.312 (2002). 8. The criteria for entitlement to Dependency and Indemnity Compensation benefits pursuant to 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002); 38 C.F.R. § 3.22 (2007). 9. The appellant's countable income is excessive for receipt of pension benefits. 38 U.S.C.A. §§ 1521, 1541, 5107 (West 2002); 38 C.F.R. §§ 3.3(a), 3.23, 3.271, 3.272, 3.273 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). Duty to Notify Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In the context of a claim for Dependency and Indemnity Compensation (DIC) benefits, section 5103(a) notice must include (1) a statement of the conditions, if any, for which a veteran was service connected at the time of his death; (2) an explanation of the evidence and information required to substantiate a DIC claim based on a previously service- connected condition; and (3) an explanation of the evidence and information required to substantiate a DIC claim based on a condition not yet service connected. Hupp v. Nicholson, 21 Vet. App. 342, 352-53 (2007). While there are particularized notice obligations with respect to a claim for DIC benefits, there is no preliminary obligation on the part of VA to conduct a predecisional adjudication of the claim prior to providing a section 5103(a)-compliant notice. In this case, compliant notice was not sent to the appellant until June 2005. However, she was not prejudiced because she had ample opportunity to participate in her claim before it was readjudicated with a statement of the case sent in July 2007. See Mayfield (where notice was not provided prior to the AOJ's initial adjudication, this timing problem can be cured by the Board remanding for the issuance of a VCAA notice followed by readjudication of the claim by the AOJ) see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In this case, although the notice provided did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claim, such error was harmless given that service connection is being denied, and hence no rating or effective date will be assigned with respect to the claimed conditions. Duty to Assist VA has a duty to assist the appellant in the development of the claim. This duty includes assisting the appellant in the procurement of service medical records and pertinent treatment records and providing a medical opinion when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA clinical records, including those for the veteran's final hospitalization. These records contain a medical opinion as to the nature of the veteran's mental impairment. The private medical records identified by the appellant were also obtained. The death certificate is of record. It contains a medical opinion as to the cause of the veteran's death. Significantly, neither the appellant nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Service Connection for the Purpose of Accrued Benefits In order to establish service connection, three elements must be established. There must be medical evidence of a current disability; medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 U.S.C.A. §§ 101(16), 1110 (West 2002); 38 C.F.R. § 3.303 (2007); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Accrued benefits are defined as periodic monetary benefits to which an individual was entitled at death under existing ratings or decisions, or those based on evidence in the file at date of death and due and unpaid. 38 U.S.C.A. § 5121 (West 2002); 38 C.F.R. 3.1000 (2007). Accrued benefits are payable to a surviving spouse. 38 U.S.C.A. § 101(4) (A); 38 C.F.R. § 3.57. The evidence shows the appellant is the veteran's surviving spouse. The death certificate shows that the veteran died in May 2003, at age 76. The cause of death was listed as cardiopulmonary arrest due to pneumonia. There was no autopsy. The veteran died at a VA medical center and the records of his final hospitalization are in evidence. At the time of the veteran's death, service connection was not in effect for any disability. On the date of the veteran's death, the RO denied service connection for PTSD, bilateral flat feet, bilateral hearing loss, bilateral tinnitus, severe respiratory problems, and a dental condition. PTSD Service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. If the evidence establishes that the veteran engaged in combat with the enemy and the claimed stressor is related to that combat, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. If the evidence establishes that the veteran was a prisoner- of-war under the provisions of § 3.1(y) of this part and the claimed stressor is related to that prisoner-of-war experience, in the absence of clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the veteran's service, the veteran's lay testimony alone may establish the occurrence of the claimed in-service stressor. 38 C.F.R. § 3.304(f) (2007). The claim here fails because there is no competent medical diagnosis of PTSD. The service medical records consist of the report of the veteran's examination for separation from service, in June 1954, which shows his psychiatric status was normal. Thereafter, many years passed with private treatment for various problems; but, not for PTSD or other psychiatric complaints. The veteran did report problems sleeping in conjunction with a VA pension examination in September 1990, but there were no complaints of nightmares, flashbacks, or other psychiatric symptoms. There were no psychiatric findings or diagnoses. The record contains VA and private medical records from the years immediately prior to the veteran's death and there are no complaints of flashbacks or other exclusively PTSD symptoms; nor are there any PTSD findings or diagnoses. There were complaints of memory loss and the VA clinical records indicate that this was thought to be due to dementia caused by neurosyphilis. The Board notes that the appellant and lay witnesses have submitted statements to the effect that the veteran had PTSD symptoms for many years. However, as lay witnesses, they do not have the medical training and experience to diagnose the veteran's complaints as PTSD. 38 C.F.R. § 3.159 (a) (2007); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). In this case, the medical opinion that the veteran had dementia due to an infectious disease outweighs the lay opinions as to the nature of the veteran's condition. The preponderance of the evidence establishes that the veteran's psychiatric symptoms at the time of his death were due to dementia, not PTSD. As the first requirement for service connection for PTSD is medical evidence diagnosing the condition, and that is not present here, the claim must be denied. The veteran and his widow have claimed that he served in combat. There is no question that the veteran served faithfully and honorably under the adverse conditions of the Korean theater. The veteran's awards include the Korean Service Medal with 2 Bronze Service Stars. These service stars reflect participation in two campaigns. The United Nations Service Medal reflects service with United Nations Forces. The National Defense Service Medal reflects wartime service. The Korean Presidential Unit Citation was authorized to any veteran who served in the war. None of the veteran's awards connote combat service. It must be remembered that combat service acts to verify a stressor, it does not diagnose PTSD or replace a need for a diagnosis of PTSD. So, whether the veteran served in combat or not, the claim must be denied because there is no competent medical evidence that the veteran had PTSD. The extensive medical records form a preponderance of evidence that overwhelms the lay testimony of the witnesses. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Bilateral Flat Feet On the June 1954 examination for separation from service, it was noted that the veteran had Flatfoot, 3rd degree, "NS" (not significant). A veteran is assumed to be in sound condition when enrolled and accepted for service, except for defects noted when he is examined and accepted for service. 38 U.S.C.A. § 1111 (West 2002). In this case, there is no record of the entrance examination and, so, there is no evidence of flat feet being noted when the veteran was examined for service. However, there is no competent medical evidence of a current flat foot disability. In fact, there is no competent medical evidence of flat feet after service. The record contains private medical records as early as 1968, and they do not show any complaints, findings, or diagnoses of flatfeet. The veteran saw a private podiatrist in February 1987 for a painful right foot. The veteran's foot was examined and X-rays were taken. The doctor diagnosed bursitis of the right third metatarsal head. Padding and medication were recommended. Significantly, the doctor did not identify any flat foot condition. On VA examination in October 1990, the veteran reported that he fell 5 or 6 years earlier and had arthritis of the right lower extremity, but his knee, leg, ankle, and foot were not giving him any trouble. Physical examination showed a normal gait. There was no edema in the feet or legs. There was no foot diagnosis. The record contains extensive records for the veteran's various medical problems in recent years. These do not contain a diagnosis of flat feet. Over 48 years passed between the only recorded diagnosis of flat feet, in June 1954, and the veteran's death in May 2003. During that time the veteran was seen by doctors many times, and by a foot specialist at least once. However, there were no further diagnoses of flat feet. The reports of the many medical personnel who examined the veteran following service form the preponderance of evidence here and establish that there is no competent evidence of a current disability which could be granted service connection. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert; Ortiz. Bilateral Hearing Loss, Tinnitus, and a Respiratory Disorder The report of the June 1954 examination for separation from service shows that the veteran's ears and drums, lungs and chest were normal. A chest X-ray was normal. Hearing for whispered and spoken voice was normal at 15/15, for both ears. See Smith v. Derwinski, 2 Vet. App. 137, 140 (1992). Organic diseases of the nervous system, including sensorineural hearing loss, may be presumed to have been incurred during active military service if manifest to a degree of 10 percent or more within the first year following active service. 38 U.S.C.A. §§ 1101, 1112 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007). In this case, there is no competent evidence of this disorder within the first year after the veteran completed his active service. Following service, many years passed without medically documented complaints, findings or diagnoses of hearing loss, tinnitus, or respiratory distress. Evidence of a prolonged period without medical complaint and the amount of time that elapsed since military service, can be considered as evidence against the claim. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). There were no complaints of hearing loss or tinnitus on the September 1990 VA pension examination. The veteran did complain of shortness of breath, but reported no history of lung disease. Physical examination indicated his ears and respiratory system to be normal. There was no diagnosis of hearing loss, tinnitus, or a respiratory disorder. There is no competent medical evidence linking hearing loss, tinnitus, or a respiratory disorder to the veteran's active service. The separation examination, the passage of many years without medically documented complaint, and the report of the 1990 VA examination combine with the other medical reports of record to form a preponderance of evidence, which establishes that any hearing loss, tinnitus, or a respiratory disorder is of recent origin and not related to the veteran's active service. As the preponderance of the evidence is against these claims, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert; Ortiz. Dental Disorder Dental disorders that may be compensable include irreplaceable missing teeth, and disease and damage to the jaw. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. Missing teeth may be compensable for rating purposes under Diagnostic Code 9913. However, the Note immediately following states, "these ratings apply only to bone loss through trauma or disease such as osteomyelitis, and not to the loss of the alveolar process as a result of periodontal disease, since such loss is not considered disabling." See 38 C.F.R. § 4.150, Diagnostic Code 9913. The report of the separation examination contains a notation that the veteran was instructed to have dental defects corrected, class 2, R-13, supernumerary. The missing and restorable teeth were diagramed. There was no report of trauma to the teeth. Upon careful review of the evidence of record, it is found that service connection for a dental disorder has not been established. In the instant case, there is no objective, competent evidence of record that the veteran has irreplaceable missing teeth or that any loss of teeth has been caused by loss of substance of the body of the maxilla or mandible. It has not been contended and the evidence does not demonstrate that the veteran sustained any injury to the teeth or that he had suffered from any disease of the jaw in service. Nor is there any suggestion that he had any other condition listed as compensable dental and oral conditions under the rating schedule. See 38 C.F.R. § 4.150. As a consequence, he was not eligible for compensation for any dental disorder. Here, again, the medical evidence constitutes the preponderance of evidence and it is against the claim. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert; Ortiz. Service Connection for the Cause of the Veteran's Death Service connection for the cause of the veteran's death may be granted if a disability incurred in or aggravated by service caused death. For a service-connected disability to be the cause of death, it must singly or with some other condition be the immediate or underlying cause, or be etiologically related. 38 U.S.C.A. § 1310 (West 2002). Service connection for the cause of the veteran's death may also be granted if the evidence shows that disability incurred in or aggravated by service contributed substantially or materially to cause death. For a service- connected disability to constitute a contributory cause, it is not sufficient to show that it casually shared in producing death, but rather it must be shown that there was a causal connection. 38 U.S.C.A. § 1310 (West 2002); 38 C.F.R. § 3.312 (2002). Service connection was not in effect for any disability at the time of the veteran's death, and as discussed above, the evidence does not support service connection for any disability. The death certificate shows that the veteran died in May 2003, at age 76. The cause of death was cardio-pulmonary arrest due to pneumonia. This is supported by the clinical records made before death occurred. There is no competent medical evidence connecting the fatal pneumonia to the veteran's active service. On the other hand, as discussed above, there is a preponderance of competent medical evidence showing that the veteran did not have pneumonia or any other respiratory disorder linked to service. The veteran's lungs and chest X-ray were normal when he was examined just prior to separation from active service in June 1954. Thereafter, many years passed without any medical documentation of respiratory symptoms, despite documentation of being seen for other problems. Respiratory findings were normal on the 1990 VA pension examination. The clear preponderance of competent medical evidence on this point shows that the veteran's fatal pneumonia was not related to any disease or injury during his active service. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert; Ortiz. Dependency and Indemnity Compensation (DIC) Under 38 U.S.C.A. § 1318 The appellant seeks entitlement to DIC benefits under the provisions of 38 U.S.C.A. § 1318. In pertinent part, 38 U.S.C.A. § 1318 authorizes the payment of DIC to a surviving spouse in cases where a veteran's death was not service- connected, provided that the veteran was in receipt of or "entitled to receive" compensation at the rate of a 100 percent (total) rating due to service-connected disability for a period of at least five years from the date of his discharge or release from active duty, or for 10 or more years immediately preceding his death. This statute was implemented by VA at 38 C.F.R. § 3.22. At the time of the veteran's death, service connection was not in effect for any disability. The veteran's claims were reviewed, as discussed above, and it has been determined that service connection was not warranted for any disability. Therefore, the veteran was not in receipt of or entitled to receive compensation at any rate and certainly not at 100 percent. Consequently, this claim must be denied. Death Pension The surviving spouse of a veteran who met the wartime service requirements will be paid the maximum rate of pension, reduced by the amount of her countable income. 38 U.S.C.A. § 1541; 38 C.F.R. §§ 3.23, 3.273. Payments from any kind from any source shall be counted as income during the 12- month annualization period in which received, unless specifically excluded. 38 C.F.R. § 3.271. For the purpose of determining initial entitlement, the monthly rate of pension shall be computed by reducing the applicable maximum pension rate by the countable income on the effective date of entitlement and dividing the remainder by 12. 38 C.F.R. § 3.273(a). Nonrecurring income (income received on a one-time basis) will be counted, for pension purposes, for a full 12- month annualization period following receipt of the income. 38 C.F.R. § 3.271(c). Basic entitlement to such pension exists if, among other things, the claimant's income is not in excess of the maximum annual pension rate (MAPR) specified in 38 C.F.R. § 3.23. See 38 U.S.C.A. § 1521(a), (b); 38 C.F.R. § 3.3(a)(3). The MAPR is published in Appendix B of VA Manual M21-1 (M21-1) and is to be given the same force and effect as if published in VA regulations. See 38 C.F.R. § 3.21. The maximum annual pension rate is adjusted from year to year. Effective December 1, 2002, the MAPR for an otherwise eligible claimant, without a dependent child, was $6,497. Effective December 1, 2003, the MAPR for an otherwise eligible claimant, without a dependent child, was $6,634. Effective December 1, 2004, the MAPR for an otherwise eligible claimant, without a dependent child, was $6,814. Effective December 1, 2005, the MAPR for an otherwise eligible claimant, without a dependent child, was $7,094. Effective December 1, 2006, the MAPR for an otherwise eligible claimant, without a dependent child, was $7,329. See 38 C.F.R. § 3.23(a)(5); M21-1, Part I, Appendix B. Income from Social Security Administration (SSA) benefits is not specifically excluded under 38 C.F.R. § 3.272, and therefore is included as countable income. Certain unreimbursed medical expenses (in excess of five percent of the MAPR) may be excluded from countable income for the same 12-month annualization period to the extent they were paid. 38 C.F.R. § 3.272. In September 2003, the appellant reported receiving $947, monthly in Social Security benefits. This is countable income and annualizes to ($947 x 12 =) $11,364, which clearly exceeds the MAPR. The June 2005 VCAA notice letter informed the appellant that her countable income could be reduced by medical expenses, and appropriate forms were provided, but she has not provided any additional income information. Thus, the evidence left with VA shows that her income exceeds the amount allowed for pension and pension cannot be paid. ORDER Service connection for PTSD for the purpose of accrued benefits is denied. Service connection for bilateral flat feet for the purpose of accrued benefits is denied. Service connection for bilateral hearing loss disability for the purpose of accrued benefits is denied. Service connection for tinnitus for the purpose of accrued benefits is denied. Service connection for a respiratory disorder for the purpose of accrued benefits is denied. Service connection for a dental disorder for the purpose of accrued benefits is denied. Service connection for the cause of the veteran's death is denied. Dependency and Indemnity Compensation (DIC) under the provisions of 38 U.S.C.A. § 1318 is denied. Entitlement to death pension is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs