Citation Nr: 0904178 Decision Date: 02/05/09 Archive Date: 02/13/09 DOCKET NO. 04-37 281 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to service connection for heart disease. 3. Entitlement to service connection for a heart murmur. 4. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a lumbar spine disability. REPRESENTATION Veteran represented by: Vietnam Veterans of America WITNESS AT HEARING ON APPEAL K.L. ATTORNEY FOR THE BOARD M. Donohue, Associate Counsel INTRODUCTION The veteran served on active duty from March 1956 to December 1958. This case comes before the Board of Veterans' Appeals (the Board) on appeal from January 2004 and May 2004 rating decisions of the Department of Veterans Affairs (VA) Regional Office in Providence, Rhode Island (the RO). In April 2006, the veteran was scheduled for a personal hearing chaired by the undersigned Veterans Law Judge at the RO. Due to illness, the veteran was unable to appear for the hearing. His daughter and his representative appeared on his behalf. A transcript of the hearing has been associated with the veteran's VA claims folder. The veteran has not subsequently requested a hearing, and according to the medical evidence he is not able to travel for a hearing. In August 2006 the Board remanded the veteran's claim for additional development. A supplemental statement of the case was issued in October 2007 by the VA Appeals Management Center (AMC) which continued the denial of the claims. The case is once again before the Board. In January 2009, the Board granted the veteran's motion to advance his case on the Board's docket due to his advancing age. 38 U.S.C.A. § 7107(a)(2) (West 2002); 38 C.F.R. § 20.900(c) (2008). The issues of entitlement to service connection for a heart murmur and whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a lumbar spine disability are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the VA Appeals Management Center (AMC) in Washington, DC. FINDINGS OF FACT 1. The competent medical evidence of record does not support a finding that a relationship exists between the veteran's COPD and the veteran's military service or any incident thereof. 2. The competent medical evidence of record does not support a finding that a relationship exists between the veteran's currently diagnosed heart disease and his military service or any incident thereof. CONCLUSIONS OF LAW 1. COPD was not incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2008). 2. Heart disease was not incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1131, 1137 (West 2002); 38 C.F.R. § 3.303 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran seeks entitlement to service connection for COPD and heart disease. As discussed elsewhere, the issues of entitlement to service connection for a heart murmur and whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a lumbar spine disability are being remanded for further development. In the interest of clarity, the Board will first discuss certain preliminary matters. The Board will then render a decision. Stegall concerns In August 2006, the Board remanded the case to the AMC in order to provide the veteran with additional notice of the Veterans Claims Assistance Act of 2000 (VCAA), obtain additional treatment records identified by the veteran and obtain a medical opinion. The record reveals that the veteran was provided with a corrective VCAA notice letter in September 2006. The additional treatment records identified by the veteran have been obtained and the AMC obtained the medical opinion requested by the Board in October 2007. Thus, the Board's remand instructions have been complied with as to the two issues which are being decided herein. See Stegall v. West, 11 Vet. App. 268, 271 (1998) [where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance]. The VCAA The Board has given consideration to the VCAA. The VCAA includes an enhanced duty on the part of VA to notify a claimant as to the information and evidence necessary to substantiate claims for VA benefits. The VCAA also redefines the obligations of VA with respect to its statutory duty to assist claimants in the development of their claims. See 38 U.S.C.A. §§ 5103, 5103A (West 2002). The VCAA alters the legal landscape in three distinct ways: standard of review, notice and duty to assist. The Board will now address these concepts within the context of the circumstances presented in this case. Standard of review After the evidence has been assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C.A. § 7104(a) (West 2002). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102 (2008). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (the Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Notice The VCAA requires VA to notify the claimant and the claimant's representative, if any, of any information and any medical or lay evidence not previously provided to VA that is necessary to substantiate the claim. As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103 (West 2002); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002) [a letter from VA to an appellant describing evidence potentially helpful to the appellant but not mentioning who is responsible for obtaining such evidence did not meet the standard erected by the VCAA]. After having carefully reviewed the record, the Board has concluded that the notice requirements of the VCAA have been satisfied with respect to the issues on appeal. The Board observes that the veteran was informed of the evidentiary requirements for service connection in a letter from the RO dated September 8, 2006, including a request for evidence of "a relationship between your current disability and an injury, disease, or event in military service." Crucially, the RO informed the veteran of VA's duty to assist him in the development of his claim in the above-referenced September 2006 letter, whereby the veteran was advised of the provisions relating to the VCAA. Specifically, the veteran was advised that VA would assist him with obtaining "relevant records from any Federal agency. This may include medical records from the military, from VA Medical Centers (including private facilities where VA authorized treatment), or from the Social Security Administration." With respect to private treatment records, the letter informed the veteran that the VA would make reasonable efforts to obtain private or non-Federal medical records to include "records from State or local governments, private doctors and hospitals, or current or former employers." Furthermore, the VA included copies of VA Form 21-4142, Authorization and Consent to Release Information, which the veteran could complete to release private medical records to the VA. The September 2006 letter further emphasized: "If [there is] evidence [that] is not in your possession, you must give us enough information about the evidence so that we can request it from the person or agency that has it. If the holder of the evidence declines to give it to us, asks for a fee to provide it, or VA otherwise cannot get the evidence, we will notify you. It is your responsibility to make sure we receive all requested records that are not in the possession of a Federal department or agency." [Emphasis as in the original letter] The Board notes that the September 2006 letter specifically requested of the veteran: "If there is any other evidence or information that you think will support your claim, please let us know. If you have any evidence in your possession that pertains to your claim, please send it to us." This informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. This complies with the "give us everything you've got" provision formerly contained in 38 C.F.R. § 3.159(b) in that it informed the veteran that he could submit or identify evidence other than what was specifically requested by the RO. [The Board observes that 38 C.F.R. § 3.159 was recently revised, effective as of May 30, 2008. See 73 Fed. Reg. 23,353-23,356 (April 30, 2008). The final rule removes the third sentence of 38 C.F.R. § 3.159(b)(1), which had stated that VA will request the claimant to provide any evidence in the claimant's possession that pertains to the claim.] In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court observed that a claim of entitlement to service connection consists of five elements: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date. Because a service connection claim is comprised of five elements, the Court further held that the notice requirements of section 5103(a) apply generally to all five elements of that claim. Therefore, upon receipt of an application for a service connection claim, section 5103(a) and section 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 the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The veteran was provided specific notice of the Dingess decision in the above-referenced September 2006 letter which detailed the evidence considered in determining a disability rating, including "nature and symptoms of the condition; severity and duration of the symptoms; and impact of the condition and symptoms on employment." The veteran was also advised in the letter as to examples of evidence that would be pertinent to a disability rating, such as on-going treatment records, recent Social Security determinations and statements from employers as to job performance and time lost due to service-connected disabilities. With respect to effective date, the September 2006 letter instructed the veteran that two factors were relevant in determining effective dates of increased rating claims: when the claim was received; and when the evidence "shows a level of disability that supports a certain rating under the rating schedule or other applicable standards." The veteran was also advised in the letter as to examples of evidence that would be pertinent to an effective date determination, such as information about continuous treatment or when treatment began, service medical records the veteran may not have submitted and reports of treatment while attending training in the Guard or Reserve. In short, the record indicates that the veteran received appropriate notice pursuant to the VCAA. Duty to assist In general, the VCAA provides that VA shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate a claim for VA benefits, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. The law provides that the assistance provided by VA shall include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. An examination is deemed "necessary" if the record does not contain sufficient medical evidence for VA to make a decision on the claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2008). The Board finds that reasonable efforts have been made to assist the veteran in obtaining evidence necessary to substantiate his claim, and that there is no reasonable possibility that further assistance would aid in substantiating it. In particular, the VA has obtained the veteran's service treatment records, VA outpatient medical records, private medical records and provided him with a physical examination. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2008). The veteran has been accorded the opportunity to present evidence and argument in support of his claim. Because of his inability to appear at his scheduled personal hearing, his daughter provided testimony on his behalf in April 2006. Accordingly, the Board will proceed to a decision. 1. Entitlement to service connection for COPD. Relevant law and regulations Service connection - in general In general, service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. § 3.303 (2008). In order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Asbestos exposure There is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary of VA 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 have been included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, 7.21. 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 these guidelines. See Ennis v. Brown, 4 Vet. App, 523, 527 (1993); McGinty v. Brown, 4 Vet. App. 428, 432 (1993). VA Manual M21-1, Part VI, para. 7.21 (October 3, 1997) provides that inhalation of asbestos fibers can produce fibrosis and tumor, most commonly interstitial pulmonary fibrosis (asbestosis). Asbestos fibers may also produce pleural effusion and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, lung cancer, and cancers of the gastrointestinal tract. Cancers of the larynx and pharynx, as well as the urogenital system (except the prostate) are also associated with asbestos exposure. Thus persons with asbestos exposure have increased incidence of bronchial, lung, pharyngolaryngeal, gastrointestinal and urogenital cancer. See M21-1, Part VI, para 7.21(a). The applicable section of Manual M21-1 also notes that some of the major occupations involving exposure to asbestos include mining, milling, work in shipyards, 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, military equipment, etc. 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). See Department of Veterans Affairs, Veteran's Benefits Administration, Manual M21-1, Part 6, Chapter 7, Subchapter IV, § 7.21 b. In Dyment v. West, 13 Vet. App. 141, 145 (1999), the Court found that provisions in former paragraph 7.68 (predecessor to paragraph 7.21) of VBA Manual M21-1, Part VI, did not create a presumption of exposure to asbestos. Medical nexus evidence is required in claims for asbestos related disease related to alleged asbestos exposure in service. VA O.G.C. Prec. Op. No. 04-00. 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. See M21-1, Part VI, 7.21; DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988). Analysis With respect to Hickson element (1), the veteran has been diagnosed with COPD. See, e.g., the October 2007 VA examination report. Hickson element (1) has therefore been demonstrated. The Board adds that the veteran has not been diagnosed as having asbestosis. With respect to Hickson element (2), the veteran's representative has argued that the veteran was exposed to asbestos during service. As noted in the law and regulations section above, asbestos exposure is a fact to be determined from the evidence. See Dyment, supra. In this case the veteran's service records indicate that his primary military occupational specialty (MOS) was an aircraft mechanic. Aircraft mechanic is not one of the occupations noted to have involved exposure to asbestos. Furthermore, the veteran's service treatment records do not refer to any asbestos exposure, and COPD is not included in the list of disabilities associated with asbestos exposure in M21-1, Part VI, para 7.21(a). The Board notes that several post-service medical treatment records document that the veteran "is generally followed for . . . asbestos exposure." See, e.g., a June 2006 treatment record from R.M.G., M.D. This appears to be based on the veteran's own report, as the notations are made in the medical history portion of the treatment records. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995) ["a bare transcription of a lay history is not transformed into 'competent medical evidence' merely because the transcriber happens to be a medical professional"]. The post-service the medical evidence does not indicate that the veteran has been diagnosed with a disease related to asbestos exposure. Moreover, these medical records do not indicate that the veteran was exposed to asbestos during military service. In short, the contention that the veteran was exposed to asbestos in service amounts to mere speculation on his part and is not substantiated by any objective evidence in the file. The Board accordingly finds that the veteran was not exposed to asbestos in service. However, the veteran's service treatment records indicate that he was diagnosed with an upper respiratory infection in April 1955. Although this appears to have been an acute and transitory episode, and there was no indication of a pulmonary disorder in the service treatment records, element (2) has arguably been satisfied to that extent only. With respect to element (3), medical nexus, in October 2007 a VA examiner noted that the veteran was treated in service for a cough and sore throat and that he was diagnosed with an upper respiratory infection, laryngitis, acute pharyngitis and influenza-like syndrome. After reviewing all the medical evidence, the VA examiner concluded that the veteran's COPD was not related to his military service. There are no other competent medical nexus opinions of record. To the extent that the veteran and his representative contend that a medical relationship exists between his COPD and his military service, any such statements offered in support of the veteran's claim do not constitute competent medical evidence and cannot be accepted by the Board. See Espiritu v. Derwinski, 2 Vet. App. 492, 494-95 (1992); see also 38 C.F.R. § 3.159(a)(1) [competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions]. Accordingly, Hickson element (3) and has not been met, and the veteran's claim fails on this basis. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for COPD. The benefit sought on appeal is accordingly denied. 2. Entitlement to service connection for heart disease. Initial matter In addition to the issue of the veteran's entitlement to service connection for heart disease, there is before the Board a separate issue of entitlement to service connection for a heart murmur, which as discussed below is being remanded. The Board notes that an October 2007 VA examiner specifically stated that the "heart murmur diagnosed in service . . . is not part and parcel of his currently diagnosed heart condition." There is no medical evidence to the contrary. Relevant law and regulations The law and regulations pertaining to service connection and asbestos exposure have been set forth above and need not be repeated. Service connection may also be granted on a presumptive basis for certain chronic disabilities, including cardiovascular disease, when such are manifested to a compensable degree within the initial post-service year. See 38 U.S.C.A. §§ 1131, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309(a) (2008). Analysis As noted above, in order for service connection to be granted, three elements must be present: (1) a current disability; (2) in-service incurrence of disease or injury; and (3) medical nexus. See Hickson, supra. With respect to Hickson element (1), the veteran has been diagnosed with coronary artery disease. See, e.g., the October 2007 VA examination report. Hickson element (1) has therefore been demonstrated. With respect to Hickson element (2), the veteran's representative has argued that the veteran was exposed to asbestos. As discussed in detail above, there is no evidence that the veteran was exposed to asbestos in service. The veteran's service treatment records document that in August 1956 the veteran complained of, inter alia, chest pains during exertion and sometimes at rest. While pericarditis was initially suggested, a medical consultation was ordered and heart disease was specifically excluded as a diagnosis. There is no competent medical evidence indicating that the veteran developed heart disease during service. To the extent that the veteran contends that the chest pains reported during service, or the heart murmur identified in service, constitutes an in-service injury or disease, any such statements do not constitute competent medical evidence. See Espiritu, surpa. Further, the medical evidence of record does not indicate that heart disease was present within the one year presumptive period after service. Indeed, heart disease was not diagnosed until several decades after service. Hickson element (2) has not been met and the veteran's claim fails on this basis alone. With respect to Hickson element (3), medical nexus, after reviewing the veteran's medical records, the October 2007 VA examiner concluded that the veteran's "coronary artery disease with stent placement and atrial fibrillation are NOT related to or caused by his chest pain, heart murmur and coughing noted during service" (emphasis as in the original opinion). There are no other competent medical nexus opinions of record. In support of his claim the veteran has submitted an Internet article discussing congenital heart disease. The article is general and nature and does not address the veteran's particular circumstances. See Beausoleil v. Brown, 8 Vet. App. 459, 463 (1996); Libertine v. Brown, 9 Vet. App. 521, 523 (1996) [evidence which is speculative, general or inconclusive in nature cannot support a claim.]. To the extent that the veteran and his representative contend that a medical relationship exists between his heart disease and his military service, any such statements offered in support of the veteran's claim do not constitute competent medical evidence and cannot be accepted by the Board. See Espiritu supra. Accordingly, Hickson element (3) and has not been met. In sum, for the reasons and bases expressed above the Board finds that the preponderance of the evidence is against the veteran's claim of entitlement to service connection for heart disease. The benefit sought on appeal is accordingly denied. ORDER Entitlement to service connection for COPD is denied. Entitlement to service connection for heart disease is denied. REMAND In January 2009, the veteran's representative argued that the issues of entitlement to service connection for a heart murmur and whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a lumbar spine disability must be remanded for further development. The Board regrets remanding having to remand these issues for a second time, particularly in light of the veteran's health issues. However, as noted by the veteran's representative, further development is necessary. 3. Entitlement to service connection for a heart murmur. In this case the medical evidence indicates that the veteran was first diagnosed with a heart murmur during service. Service treatment records describe the murmur as "functional in origin" and the October 2007 VA examiner indicated that the veteran's heart murmur is a "functional murmur." The medical evidence does not indicate whether the veteran's heart murmur is a congenital disease or defect. The distinction between a disease and defect is significant. Congenital or developmental defects are not diseases or injuries within the meaning of applicable legislation and cannot be service connected. See 38 C.F.R. §§ 3.303(b), 4.9. However, a VA General Counsel opinion has held that service connection may be granted for diseases (but not defects) of congenital, developmental or familial origin if the condition was incurred in or aggravated during service. See VAOPGCPREC 1- 85 (1985) [reissued as VAOPGCPREC 82-90 (1990)]; see also Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993) [noting the difference between defect and disease and further noting that service connection may be granted if the congenital or developmental condition is a disease]. Thus, additional medical evidence is needed to clarify this matter. 4. Whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a lumbar spine disability. In the August 2006 remand, the Board stated: "With respect to the low back claim, the Court recently found in Kent v. Nicholson, 20 Vet. App. 1, 8 (2006) that in order to fully comply with the VCAA notice requirement for new and material evidence claims the veteran must be advised as to the reasons the original claim was denied and what kinds of evidence would be required to re-open his claim." It was further noted that "the veteran was not advised in writing as part of his VCAA notice that he needed to present competent medical evidence which showed a relationship between a current low back disability and the back symptoms suffered in service." In September 2006 the veteran was provided with a corrective VCAA notice letter which informed him that his claim was previously denied because the evidence he submitted was cumulative and did not relate to his military service. This letter did not inform the veteran of the reasons his original claim was denied and, as noted by the veteran's representative, the letter did not inform the veteran of the type of evidence necessary to reopen the veteran's claim. This must be accomplished. In Stegall v. West, 11 Vet. App. 268, 271 (1998), the Court held that compliance with remand instructions is neither optional nor discretionary. Where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. Because the AMC failed to comply with the Board's remand instructions, the case must be remanded so that this may be accomplished. Accordingly, these issues are REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). Expedited handling is requested.) 1. VBA should provide the veteran with a notice letter which complies with the notification requirements of the VCAA, as amplified by Kent and as discussed by the Board above. 2. VBA should arrange for the veteran's VA claims folder to be reviewed by a qualified physician. The reviewing physician should render an opinion, in light of the veteran's entire medical history, as to: a) Whether the veteran's heart murmur is a congenital disease or congenital defect. b) If the veteran's heart murmur is the result of a congenital disease, is it more likely than not that the disease was aggravated during the veteran's military service. c) Whether the heart murmur is productive of any actual disability. A report should be prepared and associated with the veteran's VA claims folder. 3. After undertaking any additional development which it deems to be appropriate, VBA should then readjudicate the veteran's claims of entitlement to service connection for a heart murmur and whether new and material evidence has been received to reopen a previously denied claim of entitlement to service connection for a lumbar spine disability. If the benefits sought on appeal remain denied, VBA should provide the veteran and his representative with a supplemental statement of the case and allow an appropriate period of time for response. The case should then be returned to the Board for further consideration, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. See 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 for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2008). ______________________________________________ Barry F. Bohan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs