Citation Nr: 0937576 Decision Date: 10/02/09 Archive Date: 10/14/09 DOCKET NO. 06-26 126 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to dependency and indemnity compensation (DIC) under the provisions of 38 U.S.C.A. § 1318. 2. Entitlement to service connection for the cause of the Veteran's death. 3. Entitlement to service connection for bladder cancer, for accrued purposes. 4. Entitlement to service connection for prostate cancer, for accrued purposes. Entitlement to service connection for a lung disability, for accrued purposes. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD J. Connolly, Counsel INTRODUCTION The Veteran served on active duty from February 1943 to January 1946. The Veteran died in August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board notes that the appellant requested a Travel Board hearing on her VA Form 9, but indicated that only her representative could attend. Per 38 C.F.R. § 20.700(b), hearings are generally not held for requests for appearances by representatives alone, unless good cause is shown. In this case, the representative thereafter submitted written correspondence to the Board and did not present any argument regarding good cause. Thus, no hearing has been scheduled. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2008). 38 U.S.C.A. § 7107(a)(2) (West 2002 & Supp. 2008). The issues of service connection for the cause of the Veteran's death as well as the accrued issues are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. At the time of the Veteran's death, service connection was not in effect for any disability. 2. The Veteran did not have a service-connected disability that was continuously rated totally disabling for a period of ten years or more immediately preceding death; he was not rated totally disabled continuously after his discharge from service and for a period more than 5 years immediately preceding death; he was not a former prisoner of war; nor has there been allegation of clear and unmistakable error. CONCLUSION OF LAW The requirements for DIC benefits under the provisions of 38 U.S.C.A. § 1318 have not been met. 38 U.S.C.A. § 1318 (West 2002 & Supp. 2008); 38 C.F.R. § 3.22 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) With respect to the claimant's claim, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Prior to the initial adjudication of the claimant's claim, a letter dated in September 2005 fully satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The claimant was aware that it was ultimately the claimant's responsibility to give VA any evidence pertaining to the claim. The VCAA letter told the claimant to provide any relevant evidence in the claimant's possession. See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). ). In particular, the VCAA notification: (1) informed the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informed the claimant about the information and evidence that VA will seek to provide; and (3) informed the claimant about the information and evidence that the claimant is expected to provide. See Pelegrini II. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that a statement of the case (SOC) or supplemental statement of the case (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007) (Mayfield III). As a matter of law, the provision of adequate VCAA notice prior to a readjudication "cures" any timing problem associated with inadequate notice or the lack of notice prior to an initial adjudication. See Mayfield III, (citing Mayfield v. Nicholson, 444 F.3d at 1328, 1333- 34). The United States Court of Appeals for Veterans Claims ("the Court") issued certain directives pertinent to cases where the issue is service connection for the cause of the Veteran's death in Hupp v. Nicholson, 21 Vet. App. 342 (2007). The Court held that there is no preliminary obligation on the part of VA to perform, what in essence would be, a predecisional adjudication of a claim prior to providing to the claimant section 5103(a) notice. Although section 5103(a) does not require a "predecisional adjudication" of the evidence in each case, the notice must be responsive to the particular application submitted. See Kent v. Nicholson, 20 Vet. App. 1 (2006), at 9 ("The legislative interest underlying the VCAA notice requirement is the intent of Congress to provide claimants a meaningful opportunity to participate in the adjudication of claims"). This means that there is a middle ground between a predecisional adjudication and boilerplate notice with regard to the amount of detail and degree of specificity VA must provide for section 5103(a)-compliant notice. The Court later stated that a more detailed notice potentially discourages a claimant from submitting additional or corroborative notice, and is contrary to the VCAA's purpose However, in DIC cases where the veteran was service-connected during his lifetime, the Court found that 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 or 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. However, where a veteran was not service-connected during his lifetime, the same did not apply. The Court held that in those cases, an original DIC claim imposes upon VA no obligation to inform a DIC claimant who submits a nondetailed application of the specific reasons why any claim made during the deceased veteran's lifetime was not granted. Further, section 5103(a) preadjudication notice, the Secretary or VA is not required to inform a DIC claimant of the reasons for any previous denial of a veteran's service-connection claim. In this case, the Veteran was not service-connected during his lifetime. In any event, the Board finds that any deficiency in the notice to the claimant or the timing of these notices is harmless error. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that the Board erred by relying on various post-decisional documents to conclude that adequate 38 U.S.C.A. § 5103(a) notice had been provided to the claimant, the Court found that the evidence established that the claimant was afforded a meaningful opportunity to participate in the adjudication of the claim, and found that the error was harmless, as the Board has done in this case.) If any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the claimant over the course of this appeal, the claimant clearly has actual knowledge of the evidence the claimant is required to submit in this case; and (2) based on the claimant's contentions as well as the communications provided to the claimant by VA, it is reasonable to expect that the claimant understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S.Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). The Veteran's service medical records and pertinent post- service medical records have been obtained, to the extent available. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file. With regard to the issue being addressed herein, there is no medical issue to be determined. As there is no indication that any failure on the part of VA to provide additional notice of assistance reasonably affects the outcome of this case, the Board finds that such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The claimant was also sent a letter regarding the appropriate disability rating or effective date to be assigned in October 2006. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In summary, the Board has determined that there is no additional guidance VA could have provided to the appellant on the matter of what evidence she should submit to substantiate her claim. Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the claimant). DIC pursuant to the provisions of 38 U.S.C.A. § 1318 When a veteran dies, not as the result of his own willful misconduct, and was in receipt of or entitled to receive compensation at the time of death for a service-connected disability, and the disability was continuously rated totally disabling for a period of 10 or more years immediately preceding death, or the disability was continuously rated totally disabling for a period of not less than 5 years from the date of such veteran's discharge or other release from active duty, then VA shall pay DIC benefits to the surviving spouse in the same manner as if the veteran's death was service-connected. 3 8 U.S.C.A. § 1318. Even though a veteran died of nonservice-connected causes, VA will pay death benefits to the surviving spouse or children in the same manner as if the veteran's death were service- connected, if: (1) the veteran's death was not the result of his or her own willful misconduct, and (2) at the time of death, the veteran was receiving, or was entitled to receive, compensation for service-connected disability that was: (i) rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death; (ii) rated by VA as totally disabling continuously since the veteran's release from active duty and for at least 5 years immediately preceding death; or (iii) rated by VA as totally disabling for a continuous period of not less than one year immediately preceding death, if the veteran was a former prisoner of war who died after September 30, 1999. "Entitled to receive" means that at the time of death, the veteran had service-connected disability rated totally disabling by VA but was not receiving compensation because: (1) VA was paying the compensation to the veteran's dependents; (2) VA was withholding the compensation under authority of 38 U.S.C. 5314 to offset an indebtedness of the veteran; (3) the veteran had applied for compensation but had not received total disability compensation due solely to clear and unmistakable error in a VA decision concerning the issue of service connection, disability evaluation, or effective date; (4) the veteran had not waived retired or retirement pay in order to receive compensation; (5) VA was withholding payments under the provisions of 10 U.S.C. 1174(h)(2); (6) VA was withholding payments because the veteran's whereabouts was unknown, but the veteran was otherwise entitled to continued payments based on a total service-connected disability rating; or (7) VA was withholding payments under 38 U.S.C. 5308 but determines that benefits were payable under 38 U.S.C. 5309. 38 C.F.R. § 3.22. The Board notes that there have been a number of Court decisions in recent years that had resulted in some confusion in the processing of claims for DIC under 38 U.S.C.A. § 1318. Clarification has been provided by two recent decisions from the Federal Circuit. However, a discussion of the evolution of the handling of such claims is pertinent to the understanding of why this claim must now be denied. Interpreting 38 U.S.C.A. § 1318(b) and 38 C.F.R. § 3.22(a)(2), the Court previously held that a surviving spouse can attempt to demonstrate that the veteran hypothetically would have been entitled to a different decision on a service connection claim, based on evidence in the claims folder or in VA custody prior to the veteran's death and the law then applicable or subsequently made retroactively applicable. Green v. Brown, 10 Vet. App. 111, 118-19 (1997). In a later decision, the Court found that 38 C.F.R. § 3.22(a), as it existed, permitted a DIC award in a case where the veteran had never established entitlement to VA compensation for a service-connected total disability and had never filed a claim for such benefits which could have resulted in entitlement to compensation for the required period. Wingo v. West, 11 Vet. App. 307 (1998). In such cases, the claimant had to set forth the alleged basis for the veteran's entitlement to a total disability rating for the 10 years immediately preceding his death. Cole v. West, 13 Vet. App. 268, 278 (1999). In January 2000, in response to the above-referenced Court decisions, VA amended 38 C.F.R. § 3.22, the implementing regulation for 38 U.S.C.A. § 1318, to restrict the award of DIC benefits to cases where the veteran, during his or her lifetime, had established a right to receive total service- connected disability compensation for the period of time required by 38 U.S.C.A. § 1318, or would have established such right but for CUE in the adjudication of a claim or claims. 65 Fed. Reg. 3,388 (Jan. 21, 2000). The regulation, as amended, specifically prohibited "hypothetical entitlement" as a basis for establishing eligibility. In Hix v. Gober, 225 F.3d 1377 (Fed. Cir. 2000), the Federal Circuit held that for the purpose of determining whether a survivor is entitled to "enhanced" DIC benefits under 38 U.S.C.A. § 1311(a)(2) (veteran required to have been rated totally disabled for a continuous period of eight years prior to death), the implementing regulation, 38 C.F.R. § 20.1106, did permit "hypothetical entitlement." In National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 260 F.3d 1365 (Fed. Cir. 2001) (NOVA I), the Federal Circuit addressed a challenge to the validity of the amended 38 C.F.R. § 3.22. Initially, the Federal Circuit found that VA's amendment of 38 C.F.R. § 3.22 constituted an interpretive rule that did no more than interpret the requirements of 38 U.S.C.A. § 1318 and clarified VA's earlier interpretation of the statute. 260 F.3d at 1376-77. Upon consideration of 38 U.S.C.A. § 1318, the Federal Circuit found that the statutory language was ambiguous as to whether a "hypothetical" claim was allowed. Id. at 1377. It noted that 38 U.S.C.A. § 1311(a), which also has "entitled to receive" language, as interpreted in Hix, was virtually identical to 38 U.S.C.A. § 1318, but that VA interpreted them differently. Id. at 1379. Moreover, it found that the pertinent regulations, 38 C.F.R. § 3.22 and 38 C.F.R. § 20.1106, were in conflict with respect to interpreting 38 U.S.C.A. §§ 1311(a) and 1318. Id. The Federal Circuit remanded the case for VA to undertake expedited rulemaking to explain the rationale for interpreting the statutes differently or to resolve the conflict between 38 C.F.R. § 3.22 and 38 C.F.R. § 20.1106. Id. at 1379-81. On April 5, 2002, VA amended 38 C.F.R. § 20.1106 to provide that there would be no "hypothetical" determinations under 38 U.S.C.A. § 1311(a) on the question as to whether a deceased veteran had been totally disabled for eight years prior to death so that the surviving spouse could qualify for the enhanced DIC benefit. See 67 Fed. Reg. 16,309-16,317 (April 5, 2002). In National Organization of Veterans' Advocates, Inc. v. Secretary of Veterans Affairs, 314 F.3d 1373, 1377 (Fed. Cir. 2003) (NOVA II), after reviewing its holding in NOVA I, the Federal Circuit observed that VA had determined that the "entitled to receive" language of 38 U.S.C.A. § 1311(a) and 38 U.S.C.A. § 1318 should be interpreted in the same way and that 38 C.F.R. § 3.22 provided the correct interpretation. The Federal Circuit also held that VA provided a permissible basis and sufficient explanation for its interpretation of the statutes as a bar to the filing of new claims posthumously by the veteran's survivor, i.e., claims where no claim had been filed during the veteran's life or the claim had been denied and was not subject to reopening- "hypothetical entitlement" claims. Id. at 1379-80. Therefore, the state of the law is such that claims for DIC benefits under 38 U.S.C.A. § 1318 must be adjudicated with specific regard given to decisions made during a veteran's lifetime, and without consideration of hypothetical entitlement for benefits raised for the first time after a veteran's death. See Rodriguez v. Peake, 511 F.3d 1147 (2008). The Veteran in this case died in August 2005. At the time of the Veteran's death, service connection was not in effect for any disability. Thus, the Veteran was not considered totally disabled by due to service-connected disabilities by VA preceding his death. The Board finds that the Veteran was not in receipt of or entitled to receive compensation at the time of death for a service-connected disability that was rated by VA as totally disabling for a continuous period of at least 10 years immediately preceding death. In light of the above discussion, the Board concludes that the appellant's claim for DIC under 38 U.S.C.A. § 1318 must be denied because the Veteran did not have a service- connected disability that was continuously rated as totally disabling for a period of 10 or more years immediately preceding his death. ORDER DIC pursuant to the provisions of 38 U.S.C.A. § 1318 is denied. REMAND Cause of Death and Accrued Benefits The Certificate of Death lists the immediate cause of death as azotemia due to transitional cell cancer of the bladder; and the other significant conditions contributing to death as chronic obstructive pulmonary disease (COPD), prostate cancer, and hypertension. The record reflects that the Veteran had probable inservice asbestos exposure; the record indicates that the Veteran served as an aviation support equipment technician. As to claims of service connection for asbestosis or other asbestos-related diseases, VA has issued a circular on asbestos-related diseases. This circular, DVB Circular 21- 88-8, Asbestos-Related Diseases (May 11, 1988) (DVB Circular), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in a VA Adjudication Procedure Manual, M21-1 (M21- 1), Part VI, para. 7.68 (Sept. 21, 1992). Subsequently, the M2-1 provisions regarding asbestos exposure were amended. The new M21-1 guidelines were set forth at M21-1, Part VI, para. 7.21 (Oct. 3, 1997). The guidelines provide, in part, that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal disease; that VA is to develop any evidence of asbestos exposure before, during and after service; and that a determination must be made as to whether there is a relationship between asbestos exposure and the claimed disease, keeping in mind the latency period and exposure information. See Ashford v. Brown, 10 Vet. App. 120 (1997); McGinty v. Brown, 4 Vet. App. 428 (1993). 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 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). Thus, VA must analyze the Veteran's claim of entitlement to service connection for asbestosis under these administrative protocols. Ennis v. Brown, 4 Vet. App. 523, 527 (1993). As noted, the latency period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. See M21-1, Part VI, 7.21(b)(2), p. 7-IV- 3 (January 31, 1997). An asbestos-related disease can develop from brief exposure to asbestos. Id. M21-1, Part VI, para. 7.21 also contains guidelines for the development of asbestos exposure cases. Part (a) in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. M21-1, Part VI, para. 7.21(b) pertains to occupational exposure, and acknowledges that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. M21-1, Part VI, para. 7.21(c) provides that the clinical diagnosis of asbestosis requires a history of exposure and radiographic evidence of parenchymal lung disease. M21-1, Part VI, para. 7.21(d) provides that VA must determine whether military records demonstrate evidence of asbestos exposure in service; whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure; and then make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the Veteran. The appellant contends that the Veteran's inservice asbestos exposure caused his bladder cancer which resulted in his death. She also contends that it caused his COPD which hastened his death. In order to establish service connection for the cause of the Veteran's death, applicable law requires that the evidence show that a disability incurred in or aggravated by service either caused or contributed substantially or materially to 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. 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 (2008). In order to constitute the principal cause of death the service-connected disability must be one of the immediate or underlying causes of death, or be etiologically related to the cause of death. 38 C.F.R. § 3.312(b). In order to constitute the contributory cause of death it must be shown that the service-connected disability contributed substantially or materially; that it combined to cause death; that it aided or lent assistance to the production of death. 38 C.F.R. § 3.312(c). If the service-connected disability affected a vital organ, careful consideration must be given to whether the debilitating effects of the service-connected disability rendered the veteran less capable of resisting the effects of other diseases. 38 C.F.R. § 3.312(c)(2). A VA medical opinion was obtained in December 2005. The examiner provided an opinion regarding the contention of whether the Veteran's inservice asbestos exposure was related to his bladder cancer, characterized as squamous cell cancer of the urinary bladder. However, with regard to COPD, the examiner stated that it "could not be identified whether or not the Veteran had pulmonary asbestosis, the most common form of asbestos related disease, however, he did have chronic obstructive pulmonary disease." The examiner did not, however, opine if that statement is meant to provide an etiological nexus between asbestos exposure and COPD, and, if so, if the COPD had a causal connection to death. Because this case presents complex medical and unresolved factual questions which the Board is precluded from reaching its own unsubstantiated medical conclusions, further development is required. See Jones v. Principi, 16 Vet. App. 219, 225 (2002), citing Smith v. Brown, 8 Vet. App. 546, 553 (1996) (en banc); Colvin v. Derwinski, 1 Vet. App. 171 (1991). In addition, the appellant's claim for accrued benefits has been denied. The appellant disagreed with this determination, but the statement of the case (SOC) only mentioned the accrued claim in connection with the cause of death issue and did not provide the pertinent law and regulations. Thus, the SOC was defective in that regard. Accordingly, this matter is REMANDED for the following actions: 1. Obtain an addendum to the December 2005 VA medical opinion, or a new medical opinion if that examiner is unavailable. The claims file must be made available to the examiner and the examiner should indicate in his/her report whether or not the claims file was reviewed. The examiner should opine as to whether it is more likely than not, less likely than not, or at least as likely as not, that the Veteran's COPD is etiologically related to inservice asbestos exposure. If so, the examiner should indicate if COPD had a causal connection to the Veteran's death. A complete rationale for the medical opinion should be provided. 2. The AMC should then readjudicate the claims on appeal in light of all of the evidence of record. If any issue remains denied, the appellant should be provided with a supplemental statement of the case (SSOC) as to the issue(s) on appeal, and afforded a reasonable period of time within which to respond thereto. With regard to the claims of service connection for bladder cancer, prostate cancer, and COPD, on an accrued basis, the pertinent law and regulations should be provided to the appellant in that SSOC. Thereafter, subject to current appellate procedures, the case should be returned to the Board for further appellate consideration, if appropriate. The appellant has the right to submit additional evidence and argument on the matter or matters 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 2002 & Supp. 2008). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs