Citation Nr: 1000982 Decision Date: 01/07/10 Archive Date: 01/15/10 DOCKET NO. 07-16 988A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for diabetes mellitus, type II. 2. Entitlement to service connection for hypertension. 3. Entitlement to service connection for benign prostatic hypertrophy (BPH). 4. Entitlement to service connection for erectile dysfunction. 5. Entitlement to service connection for left inguinal hernia. 6. Entitlement to service connection for left renal cortical cyst. 7. Entitlement to service connection for diverticulosis. 8. Entitlement to service connection for status post cholecystectomy. 9. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for a head injury. 10. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for residuals of frozen feet. 11. Whether new and material evidence has been received to reopen a claim of entitlement to service connection for hepatitis. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Robert J. Burriesci, Associate Counsel INTRODUCTION The Veteran served on active duty from December 1948 to December 1949 and from May 1950 to April 1953. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico. The Board notes that the Veteran testified at an October 2007 RO hearing. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issues of entitlement to service connection for hypertension, BPH, left inguinal hernia, left renal cortical cyst, and for post cholecystectomy 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. In a January 1998 rating decision, the RO denied service connection for a head injury, frozen feet, and hepatitis. The Veteran was notified of the decision and of his appellate rights in January 1998, but did not file an appeal. 2. The evidence received since the January 1998 rating decision is new; however, it does not raise a reasonable possibility of substantiating the underlying claims for service connection for a head injury, frozen feet, or hepatitis. 3. The preponderance of the evidence shows that the Veteran's diabetes mellitus was not present in service or until many years thereafter and is not related to service or to an incident of service origin. 4. The Veteran is not diagnosed with any erectile dysfunction and there is no medical evidence linking any erectile dysfunction to service. 3. The preponderance of the evidence shows that the Veteran's diverticulitis was not present in service or until many years thereafter and is not related to service or to an incident of service origin. CONCLUSIONS OF LAW 1. The RO's January 1998 decision denying service connection for a head injury, frozen feet, and hepatitis are final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a), 20.1103 (2009). 2. The evidence received since the January 1998 RO rating decision is not new and material; the claims of entitlement to service connection for a head injury, frozen feet, and hepatitis, are not reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2009). 3. Diabetes mellitus, type II, was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 4. Erectile dysfunction was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). 5. Diverticulosis was not incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or 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; and (3) that the claimant is expected to provide 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 Kent v. Nicholson, 20 Vet. App. 1 (2006), the United States Court of Appeals for Veterans Claims (Court) clarified VA's duty to notify in the context of claims to reopen. With respect to such claims, VA must both notify a claimant of the evidence and information that is necessary to reopen the claim and notify the claimant of the evidence and information that is necessary to establish entitlement to the underlying claim for the benefit that is being sought. To satisfy this requirement, the Secretary is required to look at the bases for the denial in the prior decision and to provide the claimant with a notice letter that describes what evidence would be necessary to substantiate those elements required to establish service connection that were found insufficient in the previous denial. Here, the VCAA duty to notify was satisfied by way of a letter sent to the appellant in June 2005 that fully addressed all notice elements and was sent prior to the initial AOJ decision in this matter. The letter informed the appellant of what evidence was required to substantiate the claims and of the appellant's and VA's respective duties for obtaining evidence. In addition, the notice letter provided to the appellant in June 2005 included the criteria for reopening a previously denied claim, the criteria for establishing service connection, and information concerning why the claims were previously denied. Consequently, the Board finds that adequate notice has been provided, as the appellant was informed about what evidence is necessary to substantiate the element(s) required to establish service connection that were found insufficient in the previous denial. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C.A. § 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 prior to the initial AOJ decision did not address either the rating criteria or effective date provisions that are pertinent to the appellant's claims, such error was harmless given that service connection is being denied, and hence no ratings or effective dates will be assigned with respect to these claimed conditions. VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service medical records and pertinent treatment records and providing an examination 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 all pertinent VA treatment records. The Veteran submitted private treatment records from Christ Hospital, San Pablo Hospital, and Drs. R.C., J.A.B., R.A.M., J.N.R., and A.C.A. He was afforded VA medical examinations in July and August 2005. Significantly, the appellant has not 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 Veteran is required to fulfill VA's duty to assist 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). II. Applications to Reopen In a January 1998 RO rating decision, the Veteran was denied service connection for a head injury, frozen feet, and hepatitis on the basis that there was no evidence of any residuals of any head injury, frozen feet, or hepatitis due to any injury in service. At the time of the January 1998 RO rating decision the pertinent evidence of record included a report of medical examination, dated in December 1949, and reports of VA Compensation and Pension (C&P) examinations, dated in November 1997. These records did not reveal any in service injury or any current residuals of any head injury, frozen feet, or hepatitis. The January 1998 RO rating decision became final based on the evidence then of record. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a), 20.1103. However, if new and material evidence is presented or secured with respect to a claim that has been disallowed the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran filed his application to reopen claims of entitlement to service connection for a head injury, residuals of frozen feet, and hepatitis in May 2005. The pertinent evidence received since the January 1998 RO rating decision includes VA treatment records dated December 2007 to April 2009; reports of VA C&P medical examinations, dated in July and August 2005; records of treatment from Christ Hospital and San Pablo Hospital; and records of treatment from Drs. R.C., J.A.B., R.A.M., J.N.R., and A.C.A. These record do not reveal any diagnosis of any residuals of any head injury, frozen feet, or hepatitis. In regard to his application to reopen a claim of service connection for hepatitis, the records received since January 1998 reveal that he was noted in April 1998 to have antibodies for hepatitis B in his blood by Dr. R.C. It was noted by the same examiner, however, that the antibodies were not an indication that he was ill or that he has an infectious disease. In fact, Dr. R.C. stated that there was no need for follow up or additional testing. The report of VA C&P liver examination dated in August 2005 revealed status post hepatitis A and past exposure to hepatitis B; however, the examination did not reveal any evidence of any current liver disease. As to his application to reopen a claim of entitlement to service connection for frozen feet, the Board notes that the records received since January 1998 reveal a statement by Dr. A.C.A. that the Veteran "had an episode of frostbite that might explain the cramp attacks and parenthesis on the lower extremities." The Board notes that the report of medical examination, dated in November 1997 and considered by the RO in the January 1998 discussed and considered the Veteran's cramps. In addition, the statement of Dr. A.C.A. did not diagnose the Veteran with any residuals of frozen feet. As such, the Board finds that the statement is duplicative and cumulative of the evidence before the RO in January 1998. In addition, a report of a VA C&P general medical examination, dated in July 2005, did not reveal any residuals of any frozen feet. In regard to the Veteran's application to reopen a claim of entitlement to service connection for a head injury, the evidence received since January 1998 does not reveal any diagnosed residuals of a head injury. As discussed as discussed above, the evidence is new in that it was not of record in January 1998; however it is not material in that it does not relate to an unestablished fact necessary to substantiate the claims and does not raise a reasonable possibility of substantiating the claims. Therefore, the Board finds that new and material evidence to reopen the claims has not been received, and that the appeal must be denied. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). III. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, to establish service connection, there must be (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in- service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that a Veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At the outset, the Board notes that it appears that the service treatment records, with the exception of a report of medical examination dated in December 1949, have been destroyed in a fire at the National Personnel Records Center (NPRC) in 1973 and have not been located. The Board notes that multiple attempts to obtain the service treatment records have been made and that a formal finding of unavailability was made regarding these records. The Veteran was notified of the unavailability of these records and informed that he could submit any copies of records that he may have possessed. Under such circumstances, the Court has held that there is a heightened obligation on the part of VA to explain findings and conclusions and to consider carefully the benefit of the doubt rule. Cuevas v. Principi, 3 Vet. App. 542, 548 (1992); O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). As the service treatment records, with the exception of a report of medical examination dated in December 1949, remain absent from the file, the Board's analysis has been undertaken with the heightened obligation set forth in Cuevas and O'Hare in mind. It is further noted, however, that the case law does not lower the legal standard for proving a claim for service connection, but rather increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). A. Diabetes Mellitus, Type II The Veteran seeks entitlement to service connection for diabetes mellitus, type II. The Veteran contends that his diabetes mellitus is due to the candy and excess sugar he consumed while in service. The report of examination, dated in December 1949, does not reveal any complaint, diagnosis, or treatment for any diabetes mellitus. In November 1997 the Veteran was afforded a VA C&P examination in regard to unrelated claims. He reported that he was diagnosed with diabetes mellitus in 1991 by a private physician. After examination, the Veteran was diagnosed with diabetes mellitus non insulin dependent with peripheral neuropathy. The examiner did not render an opinion regarding the etiology of the Veteran's diabetes mellitus because there was no pending claim regarding diabetes mellitus. The Veteran's private post service treatment records show that he has been consistently diagnosed with diabetes mellitus since November 1997. Blood glucose tests were generally elevated from March 1995 to February 2001. However, the Veteran's private post service treatment records do not indicate that the Veteran's diabetes mellitus may be related to the Veteran's active service. In July 2005 the Veteran was afforded a VA C&P examination in regard to his claim of entitlement to service connection for diabetes mellitus. He reported that he was first diagnosed with diabetes mellitus in 1990. Upon examination there was no evidence of diabetes mellitus at the present time or in the past years. The examiner noted that all laboratory tests, every time, reported normal at present and in the past. However, the examiner stated that the Veteran reports taking Glucotrol. After examination the examiner did not diagnose the Veteran with diabetes mellitus and noted that all laboratory reports including blood glucose and special test of blood glucose were normal. As the examiner did not diagnose the Veteran with diabetes, he did not render an opinion regarding the etiology of any diabetes mellitus. The Veteran's post service VA treatment records, beginning in December 2007, do not reveal any diagnosis or treatment for any diabetes mellitus. The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for diabetes mellitus is not warranted. By the Veteran's statements, the Veteran did not suffer from diabetes in service and was not diagnosed with diabetes until 1990, more than 37 years after separation from service. The Veteran's private post service treatment records reveal that the Veteran has been diagnosed with diabetes mellitus and upon VA examination in November 1997, prior to the claim of entitlement to service connection for diabetes mellitus. However, upon examination in August 2005 and in VA treatment records beginning in December 2007, the Veteran has not been diagnosed with any diabetes mellitus. There is no evidence indicating that any diabetes mellitus may be related to the Veteran's active service. As there is no evidence of any diabetes mellitus until many years after separation from service and there is no evidence indicating that any current diabetes mellitus may be associated with the Veteran's active service, entitlement to service connection for diabetes mellitus must be denied. B. Erectile Dysfunction The Veteran seeks service connection for erectile dysfunction. He contends that his erectile dysfunction is due to a prostate condition and/or drinking water purified with tablets in service. The report of medical examination, dated in December 1949, does not reveal any complaint, diagnosis, or treatment for any erectile dysfunction. In November 1997 the Veteran was afforded a VA C&P general examination regarding unrelated claims for benefits. After examination the Veteran was not diagnosed with any erectile dysfunction. In a private treatment note dated in March 2005, the Veteran was diagnosed with erectile dysfunction. However, no opinion regarding the etiology of the condition was rendered. In August 2005 the Veteran was afforded a VA C&P genitourinary examination. The Veteran reported that he experienced erectile dysfunction for the prior six months. The Veteran reported that he was prescribed Viagra. Upon examination the Veteran was not noted to have any testicular atrophy and the penis, testicles, epididymis, and spermatic cord were noted to be normal. After examination, the examiner stated that the Veteran did not have erectile dysfunction and that the use of Viagra was elective and only to increase his erection. The Veteran's VA treatment records, dated since December 2007, do not reveal any diagnosis of erectile dysfunction or any prescription for Viagra. The Board finds that entitlement to service connection for erectile dysfunction is not warranted. There is no evidence of any complain of erectile dysfunction until 2005, more than 52 years after separation from service. A private physician reported that the Veteran was diagnosed with erectile dysfunction in a letter dated in March 2005; however, no opinion regarding the etiology of any erectile dysfunction was rendered. Upon examination in August 2005, the Veteran was not diagnosed with any erectile dysfunction and was noted to use Viagra only to increase his erection. VA treatment noted dated since December 2007 do not reveal any compliant, diagnosis, or treatment for erectile dysfunction. As there is no evidence indicating that any current erectile dysfunction may be related to the Veteran's active service entitlement to service connection for erectile dysfunction must be denied. E. Diverticulosis The Veteran seeks entitlement to service connection for diverticulosis. The Veteran contends that his diverticulosis is due to what he ingested while in service. The report of medical examination, dated in December 1949, does not reveal any complaint, diagnosis, or treatment for any diverticulosis. In November 1997 the Veteran was afforded a VA C&P general examination regarding unrelated claims for benefits. After examination the Veteran was not diagnosed with diverticulosis. The Veteran's post-service treatment records reveal that the Veteran was diagnosed with colic diverticulosis in March 2005 after a private medical examination. However, the physician did not render any opinion regarding the etiology of the condition. In a private treatment note, dated in January 2005, the Veteran was diagnosed with minimal colonic diverticulosis. However, no opinion was rendered regarding the etiology of the condition. In a private treatment note, dated in October 2006, the Veteran was noted to have a "few diverticuli colon." However, no opinion was rendered regarding the etiology of the condition. In August 2005 the Veteran was afforded a VA C&P general medical examination. Upon physical examination, the Veteran was noted to have a soft, depressible abdomen, nontender, no palpable masses or visceromegaly. The Veteran was noted to have colonic polyps, rectosigmoid polypectomy with hyperplastic polyps. After examination, the examiner did not diagnose the Veteran with any diverticulosis. VA treatment records, dated since December 2007, do not reveal any diagnosis or treatment for any diverticulosis. The Board finds that entitlement to service connection for diverticulosis is not warranted. The Veteran indicates that he has had diverticulosis since approximately 1990, more than 37 years after separation from service. The evidence does not reveal any complaint, diagnosis, or treatment for any diverticulosis until March 2005. Upon examination in November 1997 and August 2005 the Veteran was not noted to be diagnosed with diverticulosis. His post-service treatment records do not reveal any indication that any diverticulosis may be related to the Veteran's active service. As such, service connection for diverticulosis must be denied. In reaching the decisions above the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against entitlement to service connection for diabetes mellitus, erectile dysfunction, and diverticulosis, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for a head injury is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for residuals of frozen feet is denied. New and material evidence having not been received, the application to reopen the claim of entitlement to service connection for hepatitis is denied. Entitlement to service connection for diabetes mellitus, type II, is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for diverticulosis is denied. REMAND The Veteran seeks service connection for hypertension, BPH, left inguinal hernia, left renal cortical cyst, and post cholecystectomy. The Veteran contends that his conditions are due to his active service. The post-service treatment records reveal that the Veteran has been diagnosed with hypertension, BPH, residuals of left inguinal hernia, residuals of left renal cortical cyst, and post cholecystectomy. However, the Veteran's post-service treatment records do not provide any opinion regarding the etiology of the conditions. In July and August 2005 the Veteran was afforded VA C&P general medical and genitourinary examinations regarding his claims of entitlement to service connection. The examiners diagnosed the Veteran with hypertension, BPH, residuals of a left inguinal hernia, residuals of a left renal cortical cyst, and post cholecystectomy; however, the examiners did not render any opinion regarding the etiology of the conditions. VA has a duty to assist Veterans to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 § C.F.R. § 3.159. However, where a medical examination does not contain sufficient detail to decide the claim on appeal, the Board must return the report as inadequate for evaluation purposes. Hayes v. Brown, 9 Vet. App. 67, 73 (1996); 38 C.F.R. § 4.2. As discussed above, the examiners in July and August 2005, while diagnosing the Veteran with hypertension, BPH, residuals of a left inguinal hernia, residuals of a left renal cortical cyst, and post cholecystectom, they failed render opinions on whether the conditions were related to the Veteran's active service. Therefore, the Board must remand the claims for the Veteran to be afforded another VA C&P examination. In addition, the Board notes that once VA undertakes the effort to provide an examination when developing a service- connection claim, even if not statutorily obligated to do so, it must provide an adequate one or, at a minimum, notify the claimant why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As such, the Board has no discretion and must remand the claims. Accordingly, the case is 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) (2009). Expedited handling is requested.) 1. Arrange for the Veteran to undergo an appropriate VA examination to determine the nature, extent, onset and etiology of any hypertension, BPH, residuals of a left inguinal hernia, residuals of a left renal cortical cyst, and/or post cholecystectomy found to be present. The claims folder should be made available to and reviewed by the examiner. All indicated studies should be performed and all findings should be reported in detail. If hypertension, BPH, left inguinal hernia, left renal cortical cyst, and/or post cholecystectomy or the residuals thereof are diagnosed, the examiner should opine as to whether it is at least as likely as not that the Veteran's hypertension, BPH, left inguinal hernia, left renal cortical cyst, and/or post cholecystectomy or the residuals thereof are related to or had their onset during service, or developed within one year of his discharge from active duty. All findings and conclusions, with a rationale, should be set forth in a legible report. 2. Thereafter, readjudicate the Veteran's claims. If the benefits sought on appeal are not granted, the RO should issue the Veteran a supplemental statement of the case and provide the Veteran an opportunity to respond. The appellant has the right to submit additional evidence and argument on the 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 Supp. 2009). ______________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs