Citation Nr: 1108794 Decision Date: 03/04/11 Archive Date: 03/17/11 DOCKET NO. 06-27 926 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for hepatitis C. 2. Entitlement to service connection for bowel trouble, claimed as due to an undiagnosed illness. 3. Entitlement to service connection for dizziness and nausea, claimed as due to an undiagnosed illness. 4. Entitlement to service connection for cramps/menstrual problems, claimed as due to an undiagnosed illness. REPRESENTATION Appellant represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran, her mother, and a friend ATTORNEY FOR THE BOARD C. Hancock, Counsel INTRODUCTION The Veteran served on active duty from July 1990 to September 1991, to include service in Southwest Asia during Operation Desert Shield/Desert Storm from February 1991 to August 1991. These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The Veteran appeared at the RO and testified at a video conference hearing held in January 2008 before the undersigned Veterans Law Judge. A transcript of that hearing has been made a part of the record. The Board remanded these matters in September 2008 so that additional development of the evidence could be conducted. The September 2008 remand also includes a comprehensive discussion of the procedural history of the claims now on appeal. Two issues included as part of the Board's September 2008 remand, entitlement to service connection for post traumatic stress disorder and for fibromyalgia (claimed as due to an undiagnosed illness), were later granted by the RO in November 2010. These issues therefore are no longer before the Board for appellate consideration. The issue of entitlement to service connection for cramps/menstrual problems, claimed as due to an undiagnosed illness is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Hepatitis C was not shown during the Veteran's period of active service or for many years thereafter, and the record contains no probative evidence that the appellant's current hepatitis C is causally related to her period of active service or any incident therein. 2. The currently demonstrated chronic constipation is shown to be casually related to medications taken by the Veteran for treatment of her service-connected joint pain. 3. The Veteran served in the Southwest Asia Theater of operations during the Persian Gulf War. 4. The Veteran has been shown to suffer from a chronic disorder characterized by dizziness, the cause of which has not been definitively attributed to any specific medical diagnosis. CONCLUSIONS OF LAW 1. Hepatitis C was not incurred during active service. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. § 3.303 (2010). 2. Chronic constipation is proximately due to the use of certain prescribed medications for the Veteran's service-connected joint pain. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2010). 3. The Veteran's dizziness is as likely as not a manifestation of an undiagnosed illness that was incurred during active military service. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.317 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties To Notify And Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103(a); 38 C.F.R. § 3.159(b)(1); Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 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 of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 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 the elements of the claim as reasonably contemplated by the application. Additionally, this notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Concerning the appeal of the service connection claims now before the Board, the Veteran was provided notice that met these requirements in letters dated in January (hepatitis C) and September (hepatitis C, bowel trouble, and dizziness and nausea) 2004, and in August 2007(all issues on appeal). The 2004 letters met the timing requirement as they were sent before the April 2005 rating decision. As to the August 2007 letter, clearly mailed to the Veteran after she was issued the April 2005 rating decision now on appeal, VA cured any failure in this regard by providing the notice required and then readjudicating the claims. See Prickett v. Nicholson, 20 Vet. App. 370, 377-78 (2006) (VA cured failure to afford statutory notice to claimant prior to initial rating decision by issuing notification letter after decision and readjudicating claim and notifying claimant of such readjudication in the statement of the case). VA has a duty to assist the veteran in the development of the claims. This duty includes assisting the veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. As will be further explained herein, the available service treatment records have been obtained following attempts from several sources to retrieve them; however, it is not clear whether these are entirely complete and a formal finding of unavailability was made in this case. While some of the Veteran's service treatment records were obtained from the Veteran herself, her complete service treatment records could not be obtained through official sources. Accordingly, VA has a heightened duty to assist a veteran in developing her claims when records have been lost or destroyed. See O'Hare v. Derwinski, 1 Vet. App. 365 (1991); see also Russo v. Brown, 9 Vet. App. 46, 50-51 (1996); Layno v. Brown, 6 Vet. App. 465, 469 (1994). A formal finding of the unavailability of service treatment records was made in August 2004. That memorandum indicated that the service treatment records had been sought from (1) the Records Management Center in March 2003 with a negative response received in June 2003; (2) the Army Reserve Personnel Command (AR-PERSCOM) in June 2003 with a negative reply received in July 2003; and (3) the Veteran herself, in January 2004, with no response having been received from her at that time. In August 2004, the Adjutant General was contacted to obtain any available service treatment records and responded that no records were available. Moreover, the content of the notice letters--including enclosures "The Status of Your Claim and How You Can Help" and "What evidence must show" (see January 2004 letter); "How You Can Help and How VA Can Help You," "What evidence must show (2)," and "Risk Factors for Hepatitis" (see September 2004 letter); and "How You Can Help and How VA Can Help You," "What the Evidence must Show," How VA Determines the Disability Rating/Effective Date," "VCAA Notice Response, " and "Detailed Guide: GW UNDIAGNOSED ILLNESS" (see August 2007 letter)--provided to the Veteran complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. As noted, the August 2007 letter included notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The purpose of the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of her claims. She has been provided with every opportunity to submit evidence and argument in support of her claims and to respond to the VA notice. There is no evidence of any failure on the part of VA to further comply with the duty to notify that reasonably affects the outcome of this case. The duty to assist the appellant has also been satisfied in this case. Available service treatment records and available post-service medical records are in the claims file and were reviewed by both the RO and Board in connection with the appellant's claims. The appellant has not informed VA of any obtainable existing medical records which may be helpful in the adjudication of her claims. VA is not on notice of any evidence needed to decide the claim which has not been obtained. In conjunction with the Board's September 2008 remand, the Veteran was also afforded VA examinations in September and November 2010. To that end, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the September and November 2010 VA medical examinations and opinions obtained in this case are more than adequate, as they are predicated on a full review of the appellant's claims folder. In addition, and particularly noteworthy, the respective examinations considered all of the pertinent evidence of record, to include the statements of the appellant, and provided a complete rationale for the opinions stated, relying on and citing to the records reviewed. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of her claims and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). This participation included her providing testimony in January 2008 at a hearing conducted by the undersigned. Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. Factual Background Hepatitis C The Veteran filed her original claim for service connection for hepatitis C in August 2002 (see Form 21-526), and hepatitis C appears to have been initially diagnosed in 2002. She has maintained that the condition was transmitted to her during her period of active service as a result of being immunized with an air gun injector or as a result of dental work which she underwent in service. The available service treatment records include the April 1990 Report of Medical Examination conducted in association with the Veteran's active duty enlistment. This examination report makes no mention of the presence of hepatitis C. The report did, however, show that the Veteran had tattoos on her left shoulder and left forearm. The August 1991 Report of Medical Examination conducted in association with the Veteran's release from active duty also shows that hepatitis C was not diagnosed at that time. She was shown to have received several routine vaccinations in 1990. A July 2002 VA medical record shows that testing for hepatitis C antibody was confirmed positive. Another July 2002 VA medical record shows that the Veteran admitted to a history of IV drug use in 1986 and 1987, which included "crank." A VA "GI"(gastrointestinal)/hepatic consult note, dated in October 2002, indicates that the Veteran acknowledged that she used drugs as a teenager and had tattoos. A December 2002 VA triage note shows that the Veteran had complaints of fatigue associated with hepatitis C. She also complained in April 2003 of being tired physically, as well as mentally. See VA case manager note. An August 2004 medical statement from a private physician, S.B., Doctor of Osteopathy (DO), shows that the Veteran had a history of hepatitis C which resulted in severe debilitating side effects. The Veteran completed a hepatitis questionnaire form in October 2004. She reported that she had never used intravenous drugs, used intranasal cocaine, had hemodialysis or engaged in high-risk sexual activity. She reported that she did have tattoos or body piercings and had shared toothbrushes and razor blades during service. She also noted that she had never had a blood transfusion and had never been exposed to contaminated blood or fluids. In addition, the report of a February 2005 VA general medical examination shows that the Veteran reported that she had used IV drugs as a teenager and had tattoos and at least one piercing. As noted above, available service treatment records reflect that she had at least one tattoo which was evident upon enlistment in 1990. A February 2005 VA "Primary Care with Vitals" outpatient record, dated the same day as the VA general medical examination was conducted, shows that while the Veteran was positive for hepatitis C in 2002, qualitative screenings since that time had been negative for findings of hepatitis C. The Veteran's claims folder also includes a January 2008 letter from S.B., DO, which indicated that he had been treating the Veteran for five years and mentioned that she had an extensive medical history. He opined that in reviewing her risk factors for hepatitis C, the most likely culprit was exposure during her military career, noting that the Veteran had never used IV drugs, had a blood transfusion, or had contact with another known carrier. Pursuant to the Board's September 2008 remand, the Veteran was to be afforded a VA examination in order to clarify the etiology of any currently manifested hepatitis C. This VA examination was conducted in September 2010. The examination report shows that the examiner had an opportunity to review the Veteran's claims folder. The Veteran denied previous assertions of record pertaining to her past use of crank or drug use. She did again give a history of having dental work performed while in the military, as well as sharing razors and tooth brushes, as well as being administered shots via the use of an immunization air gun. The examiner commented that the Veteran had been previously treated for hepatitis C, which successfully cleared the virus. The examiner added that, therefore, without evidence of active hepatitis C there are no symptoms related to hepatitis C. While finding that the Veteran did not currently have hepatitis C, the examiner nevertheless commented that there was no evidence in the record to support a finding that the Veteran received dental work in the military at which time unsterilized equipment was used. A lack of a finding that fellow soldiers who received dental work with the Veteran later acquired the hepatitis C virus was also mentioned. The examiner noted that while the Veteran gave a history of sharing razors and toothbrushes in the military, the hepatitis C transmission risk under these circumstances was very low. The examiner further commented on the obvious conflict of the previously provided histories pertaining to the Veteran's use of IV drugs, including crank. She noted that the Veteran was initially tested for hepatitis C after she reported using IV drugs. The examiner ultimately opined that the Veteran's hepatitis C was less likely than not related to her military service. As a rationale in support of this opinion, the examiner commented that the strongest risk factor documented in the medical record for the development of hepatitis C was the Veteran's own history of IV drug use in 1986 and 1987. The examiner added that IV drug use constituted the strongest risk factor for the development of hepatitis C. Bowel Trouble, claimed as Due to an Undiagnosed Illness The available service treatment records include the April 1990 Report of Medical Examination conducted in association with the Veteran's active duty enlistment. This examination report makes no mention of the presence of bowel problems. An October 1990 Master Problem List shows that the Veteran was seen for complaints of epigastric pain which was assessed as peptic ulcer disease. The August 1991 Report of Medical Examination conducted in association with the Veteran's release from active duty also shows that bowel problems were not diagnosed at that time. VA records medical records dated subsequent to the Veteran's September 1991 service separation include a January 2003 case management note which shows complaints of pain affecting the Veteran's bowel habits. A May 2004 "Primary Care with Vitals" record shows complaints of burning stomach pain. The Veteran mentioned that she used stool softeners. In the course of a February 2005 VA general medical examination, the Veteran complained of symptoms of constipation, and some diarrhea. Examination revealed no evidence of irritable bowel syndrome (IBS). A diagnosis relevant to bowel trouble was not rendered. The Veteran also underwent a VA colonoscopy in November 2005 in conjunction with symptoms of constipation and rectal bleeding which revealed external hemorrhoids. A 2007 private medical record (diagnosis and history form) reflects that the Veteran's diagnosed conditions included IBS (with a reported onset date of January 2003); however no clinical findings accompanied that diagnosis. The Board, as part of its September 2008 remand, ordered that an examination be conducted concerning this claim. The Board also specifically pointed out that because a diagnosis of IBS was documented in a private medical report, clarification/verification of the diagnosis was important in light of the provisions of 38 U.S.C.A. § 1117 and 38 C.F.R. § 3.317 as IBS is listed as a medically unexplained chronic multi-symptom illness, which is a qualifying chronic disability for the purposes of section 3.317. Additionally, gastrointestinal signs or symptoms can be objective indications of a chronic disability associated with undiagnosed illness. The VA examination was conducted in September 2010, at which time the examiner is shown to have had an opportunity to review the Veteran's claims folder. She complained of problems with constipation and manually dis-impacting her stools. The Veteran also described having diarrhea after taking a laxative such as Miralax. She reported a weight gain of 20 pounds over the past five years. She reported that the constipation had been a chronic problem since 2002. The Veteran was also noted to by treated with Lortab every four hours for pain management concerning her joint pain. Examination revealed active bowel sounds in all four quadrants. Neither bruits nor hernia were observed. The diagnoses included chronic constipation. The examiner commented that there was no documentation showing such symptoms while the Veteran was on active duty. The examiner therefore opined that the chronic constipation was less likely than not related to the Veteran's period of active duty. The examiner further opined, however, that the Veteran's chronic constipation was due to decreased gastric motility secondary to the use of narcotic medication for treatment of chronic pain. Dizziness and Nausea, claimed as Due to an Undiagnosed Illness The available service treatment records include the April 1990 Report of Medical Examination conducted in association with the Veteran's active duty enlistment. This examination report makes no mention of the presence of problems with dizziness or nausea. The August 1991 Report of Medical Examination conducted in association with the Veteran's release from active duty also shows that problems associated with either dizziness or nausea were not diagnosed at that time. VA records medical records dated subsequent to the Veteran's September 1991 service separation include an August 2002 telephone note wherein it was documented that the Veteran was informed that CT (computed tomography) head examination findings showed normal brain scan. A September 2002 telephone note shows that the Veteran reported that her equilibrium was "off," together with ear congestion. In the course of a February 2005 VA general medical examination the Veteran complained of current symptoms of dizziness and nausea, but with no past history of nausea or vomiting. Examination revealed the Veteran's central nervous system to be grossly intact. Motor function was intact without any weakness or atrophy. Reflexes were normal and sensory function was intact. A diagnosis pertaining to the Veteran's claimed dizziness and nausea was not provided. An October 2005 VA administrative note shows complaints made by the Veteran of her being weak and dizzy all of the time. The Board in its September 2008 remand, ordered that an examination be conducted concerning this claim. The Board specifically instructed the examiner that if signs or symptoms, claimed as dizziness and nausea, could not be attributed to a known diagnosis, the examiner should so specify and provide an opinion as to the medical probabilities that the condition was attributable to an undiagnosed illness. The VA examination was conducted in September 2010, at which time the examiner is shown to have had an opportunity to review the Veteran's claims folder. The Veteran complained of, in pertinent part, dizziness, where the room she is in feels like it is moving and she feels "wobbly." She noted that these dizziness episodes occurred three to four days a week, lasting from three hours to all day. She denied any vision problems, palpitations, weakness or headache when she has the dizziness. Neurological examination revealed the Veteran to be alert, responsive, with both memory and orientation intact. Appropriate behavior and speech was demonstrated. Heel to shin coordination was normal. The Veteran's gait was also normal. The examiner diagnosed subjective complaints of dizziness without objective findings. The examiner added "[t]his is consistent with an undiagnosed illness." Laws and Regulations Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity. 38 C.F.R. § 3.303(b). Service connection may also 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). Further, disability that is proximately due to or the result of a service-connected disease or injury is considered service-connected, and when thus established, this secondary condition is considered a part of the original condition. 38 C.F.R. § 3.310(a). (The provisions of 38 C.F.R. § 3.310 were amended in the course of this appeal, effective from October 10, 2006; however, the new provisions require that service connection not be awarded on an aggravation basis without establishing a pre-aggravation baseline level of disability and comparing it to current level of disability. 71 Fed. Reg. 52744-47 (Sept. 7, 2006). Although the stated intent of the change was merely to implement the requirements of Allen v. Brown, 7 Vet. App. 439 (1995), the new provisions amount to substantive changes to the manner in which 38 C.F.R. § 3.310 has been applied by VA in Allen-type cases since 1995. Consequently, the Board will apply the older version of 38 C.F.R. § 3.310, which is more favorable to the claimant because it does not require the establishment of a baseline before an award of service connection may be made.) In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, at 309. Further, service connection may be granted to a Persian Gulf veteran who exhibits objective indications of chronic disability resulting from an undiagnosed illness or a medically unexplained chronic multi-symptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or resulting from an illness or combination of illnesses manifested by one or more signs or symptoms such as those listed below. The symptoms must be manifest to a degree of 10 percent or more during the presumptive periods prescribed by the Secretary or by December 31, 2011. By history, physical examination and laboratory tests, the disability cannot be attributed to any known clinical diagnosis. Objective indications of chronic disability include both "signs" in the medical sense of objective evidence perceptible to an examining physician, and other, non-medical indicators that are capable of independent verification. Disabilities that have existed for 6 months or more and disabilities that exhibit intermittent episodes of improvement and worsening over a 6-month period will be considered chronic. The signs and symptoms which may be manifestations of undiagnosed illness or a chronic multi-symptom illness include, but are not limited to: (1) fatigue, (2) signs or symptoms involving the skin, (3) headaches, (4) muscle pain, (5) joint pain, (6) neurologic signs or symptoms, (7) neuropsychological signs or symptoms, (8) signs or symptoms involving the respiratory system (upper or lower), (9) sleep disturbance, (10) gastrointestinal signs or symptoms, (11) cardiovascular signs or symptoms, (12) abnormal weight loss, or (13) menstrual disorders. 38 U.S.C.A. §§ 1117, 1118 (West 2002); 38 C.F.R. § 3.317 (2010). The Veteran can attest to factual matters of which she had first-hand knowledge, e.g., experiencing pain in service, reporting to sick call, being placed on limited duty, and undergoing physical therapy. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). However, the Veteran as a lay person has not been shown to be capable of making medical conclusions, thus, her statements regarding medical causation are not competent. Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Thus, while the Veteran is competent to report what comes to her through her senses, she does not have medical expertise. See Layno v. Brown, 6 Vet. App. 465 (1994).. Therefore, she cannot provide a competent opinion regarding diagnosis and causation. However, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition (noting that sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. The relevance of lay evidence is not limited to the third situation, but extends to the first two as well. Whether lay evidence is competent and sufficient in a particular case is a question of fact. The Board, however, retains the discretion to make credibility determinations and otherwise weigh the evidence submitted, including lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed. Cir. 2006). This would include weighing the absence of contemporary medical evidence against lay statements. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C.A. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. See Gilbert, 1 Vet. App. at 54. Analysis Hepatitis C The appellant's service treatment records show that she received routine vaccinations, although they contain no notation as to the type of device used to administer the vaccines. However, even if the Board were to assume arguendo that the appellant was immunized with an air gun injector during her active service, the claim must still be denied. As noted above, service connection is only warranted where a veteran is shown to have a chronic disability resulting from in-service injury or disease. 38 C.F.R. § 3.303. In this case, the record on appeal simply contains no credible, competent, or probative evidence that the appellant's claimed hepatitis C was incurred during her period of active service, including from vaccinations with an air gun injector or resulting from in-service dental treatment. The Board notes that while hepatitis C is currently not shown to be manifested (the VA examiner in September 2010 found that active hepatitis C was not then currently present), hepatitis C has been diagnosed during the course of this appeal. In McClain v. Nicholson, 21 Vet App 319 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even though the disability resolves prior to the Secretary's adjudication of the claim. Under such circumstances, provided the resolved disability is related to service, a claimant would be entitled to consideration of staged ratings. This, however, is not the case here, as a nexus relationship - supported by medical evidence and based upon accurate facts -- between the Veteran's claimed hepatitis C and her service is not of record, and therefore, the service connection principle enunciated in McClain is moot. In that regard, the appellant's service treatment records are entirely negative for notations of hepatitis C. Likewise, the record on appeal shows that the appellant was not diagnosed as having hepatitis C until 2002, after informing VA medical personnel of her history of IV drug use. Although the objective record in this case shows that hepatitis C was not present during the Veteran's active service or for more than 10 years later, as set forth above, 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). Thus, if there is a causal connection between the current condition and service, service connection may be established. Godfrey v. Derwinski, 2 Vet. App. 354 (1992). As noted, a private DO, S.B., opined as part of a January 2008 letter that the "most likely culprit" of the Veteran's hepatitis C was her military career. In rendering this opinion, S.B. relied on his belief that, in pertinent part, the Veteran had "never used IV drugs." This, based upon review of the entire evidentiary record, although the Veteran has denied this, in the opinion of the Board, is simply false. The majority of the Veteran's assertions, particularly those made while in the course of being medically treated, have shown that she has on numerous occasions conceded such IV drug use. The record also includes the September 2010 VA examination findings which, significantly, show that the examiner had an opportunity to review the Veteran's claims file, shows that the examiner initially observed that the Veteran no longer suffered from active hepatitis C, including symptoms thereof, and that she continued by indicating that there existed an obvious conflict of the previously provided histories pertaining to the Veteran's past use of IV drugs, including crank. She noted that the Veteran was initially tested for hepatitis C after she reported using IV drugs. The examiner ultimately opined that the Veteran's hepatitis C was less likely than not related to her military service. As a rationale in support of this opinion, the examiner commented that the strongest risk factor documented in the medical record for the development of hepatitis C was the Veteran's own history of IV drug use in 1986 and 1987. The examiner added that IV drug use constituted the strongest risk factor for the development of hepatitis C. Further, the examiner commented that while the record showed that the Veteran did receive dental work during her active duty, no evidence to support a finding that this dental work was undertaken with the use of unsterilized equipment was shown. She also opined that while the transmission of hepatitis C was possible via the use of air guns for immunizations, there was a lack of scientific evidence to document this mode of transmission. The examiner also commented that the risk of acquiring hepatitis C by the sharing of either razors or toothbrushes was "very low." In this case, the Board finds, for the reasons which follow, that the VA examiner's opinion is more credible and persuasive than the private DO's opinion. Regarding the opinion by S.B., the Board is not bound to accept medical opinions that are based on history provided by the veteran, where that history is unsupported by the medical evidence or based upon an inaccurate factual background. Black v. Brown, 5 Vet. App. 177 (1993); Swann v. Brown, 5 Vet. App. 229 (1993); Reonal v. Brown, 5 Vet. App. 458 (1993). Further, the Board notes that S.B. is not shown to have had an opportunity to review the Veteran's complete medical file. The opinion given by S.B., where he indicated that the "most likely culprit" of the Veteran's hepatitis C was "an exposure during her military career" is determined by the Board to be based on a history provided by the Veteran, and not supported by either the Veteran's documented medical history or the accurate factual background of this case. Conversely, the Board notes that the September 2010 VA opinion reflects a thorough review of the claims folder, and consideration of the pertinent evidence of record. The VA examination also included a detailed rationale for all the opinions rendered, supported by the accurate factual background. For these reasons, the Board assigns the VA opinion higher probative value. The Board further notes that there is no other probative evidence of record linking the appellant's claimed hepatitis C to her active service. The Board has considered the appellant's assertions to the effect that her hepatitis C was incurred in service as a result of being immunized with an air gun injector or, in the alternative, due to her being afforded dental work. As the record does not establish that the appellant possesses a recognized degree of medical knowledge, however, she lacks the competency to provide evidence that requires specialized knowledge, skill, experience, training or education. Espiritu, at 494. After having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim for service connection for hepatitis C. The service treatment records do not demonstrate that hepatitis C was manifested during military service, and also as noted, subsequent to service the Veteran initially sought service connection for hepatitis C in August 2002. The only evidence linking the Veteran's history of hepatitis C to her service, other than the opinion supplied by the private DO, S.B., of which the Board has herein found to be without probative value, is the Veteran's own lay contentions. In this regard, as mentioned, lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau. Competency of evidence, however, must be distinguished from weight and credibility, which are factual determinations going to the probative value of the evidence. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). See also Buchanan, at 1337 (The Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. If the Board concludes that the lay evidence presented by a Veteran is credible and ultimately competent, the lack of contemporaneous medical evidence should not be an absolute bar to the Veteran's ability to prove her claim of entitlement to disability benefits based on that competent lay evidence.) In this case, although the Veteran may believe that her claimed hepatitis C is due to her military service, the Board concludes that her own lay statement as to the etiology of that disorder is not competent evidence because unlike, for example, varicose veins or a dislocated shoulder, hepatitis C is not a condition capable of lay diagnosis, much less the type of condition that can be causally related to an injury or disease in military service without medical expertise. Barr (lay testimony is competent to establish the presence of varicose veins); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis). Therefore, in this case, the lay statements provided by the Veteran as to etiology do not constitute competent evidence. The Board also finds that, based upon the numerous contradictory statements regarding her past use of IV drugs, the Veteran's statements and assertions concerning the etiology of her hepatitis C lack credibility. In summary, the record contains no competent evidence linking either a current diagnosis of hepatitis C, or a history thereof, to the Veteran's military service. In addition, the hepatitis C was first diagnosed many years after her separation from service. A prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Thus, after considering all the evidence under the laws and regulations set forth above, the Board concludes that the Veteran is not entitled to service connection for hepatitis C, because the competent evidence does not reveal a nexus between the Veteran's military service and the claimed disorder. Absent such a nexus, service connection may not be granted. 38 C.F.R. § 3.303. Accordingly, the Board concludes that the preponderance of the evidence is against the claim because the record contains no competent evidence of hepatitis C in service or for many years thereafter and no competent evidence is of record to support a finding that her history of hepatitis C is associated with her active duty. See Gilbert, 1 Vet. App. at 54. Accordingly, the Board concludes that service connection for hepatitis C is not warranted. See 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2010); 38 C.F.R. § 3.102, 3.303 (2010). Bowel Trouble, claimed as Due to an Undiagnosed Illness The Veteran claims that her bowel trouble, manifested mostly by constipation, is due to her period of service in the Persian Gulf. Considering the medical evidence of record in light of the above criteria, and particularly noting that the Veteran's chronic constipation has been etiologically-linked to an existing disorder, the Board finds that service connection for bowel trouble, pursuant to the provisions of 38 U.S.C.A. § 1117, not to be warranted. Significantly, however, the record clearly contains competent medical evidence of a recent VA diagnosis pertaining to the Veteran's claimed bowel problems. As reported above, following examining the Veteran in September 2010, and after rendering a diagnosis of chronic constipation, though opining that the Veteran's chronic constipation was less likely than not related to the Veteran's period of active duty, the examiner also opined that the Veteran's chronic constipation was due to decreased gastric motility secondary to the use of narcotic medication for treatment of chronic pain. The Board notes that the RO in November 2010 granted service connection for joint pain [previously claimed as fibromyalgia] due to an undiagnosed illness. The Board also here again notes that the Veteran is taking Lortab (a narcotic prescription drug) for pain management purposes for her service-connected joint pain. See September 2010 VA examination report. Here, the record supports a finding that the medications taken by the Veteran for pain management for her service-connected joint pain as likely as not played some causative role (i.e., proximately caused) in the development of the chronic constipation. In resolving all reasonable doubt in the Veteran's favor, secondary service connection for the chronic constipation is warranted. 38 C.F.R. § 3.310. Dizziness and Nausea, Claimed as Due to an Undiagnosed Illness The Veteran claims that her dizziness and nausea is due to her period of service in the Persian Gulf. Considering the medical evidence of record in light of the above criteria, the Board finds that service connection for dizziness, pursuant to the provisions of 38 U.S.C.A. § 1117, is warranted. Significantly, the record clearly contains competent medical evidence of a recent VA diagnosis pertaining to the Veteran's claimed dizziness disorder. As noted, after reviewing the Veteran's claims folder and examining the Veteran in September 2010, the examiner stated, "Subjective complaints of dizziness without objective findings. This is consistent with an undiagnosed illness." Further, there is no contrary medical opinion as to the etiology of the Veteran's dizziness. There is no reason to doubt the Veteran's credibility regarding this matter. She is certainly also competent to give evidence about what she experiences and observes, as relating to her dizziness. See Layno, at 469 (noting competent lay evidence requires facts perceived through the use of the five senses). The medical evidence of record shows that the Veteran has a disorder manifested by dizziness. And, the Board again notes that the September 2010 VA examiner essentially attributed the disorder to "an undiagnosed illness." As such, the examiner clearly did not definitively attribute it to any specific clinical diagnosis. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1). In the absence of such attribution, or a showing that it is indeed multi-factorial in origin (attributed to diagnosed seizures and psychological disability, for example), the Board finds that the evidence supports the granting of service connection. Service connection for dizziness based on undiagnosed illness is therefore warranted. Given the facts of this case, and with resolution of reasonable doubt in the Veteran's favor, the Board finds that the criteria for service connection for dizziness, as a manifestation of undiagnosed illness, under the provisions of 38 U.S.C.A. § 1117, are met. See 38 C.F.R. § 3.102. ORDER Service connection for hepatitis C is denied. Service connection for bowel trouble is granted. Service connection for dizziness is granted. REMAND As indicated in the Introduction, the issue concerning entitlement to service connection for cramps, as due to an undiagnosed illness was remanded in September 2008. Unfortunately, some of the ordered development remains to be sufficiently completed. Accordingly, another remand is required. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran filed her original claim for cramps in August 2002. See VA Form 21-526. Available service treatment records include the April 1990 Report of Medical Examination conducted in association with the Veteran's active duty enlistment. Pelvic (vaginal) examination at that time was noted to be clinically normal. The April 1990 Report of Medical History completed by the Veteran shows that she denied having been treated for both a female disorder and a change in menstrual pattern. An October 1990 health record shows complaints of various female problems, including discharge, burning and itching. On the August 1991 Report of Medical History completed by the Veteran in conjunction with her service separation, she noted that she had been treated for a female disorder. A history of an in-service procedure, the freezing off of dysplasia outside the uterus, was reported. The August 1991 Report of Medical Examination conducted in association with the Veteran's release from active duty shows that pelvic examination was deferred. The report of a January 2002 private pelvic sonogram, ordered in conjunction with the Veteran's complaints of right lower pelvic pain, shows that the Veteran had a normal period with heavy cramping and bleeding. The sonogram revealed that the uterus and ovaries were normal in size and shape and that no cystic or solid masses were seen. A December 2002 VA triage medical record notes complaints of abdominal pain associated with menstruation. A February 2003 gynecology addendum medical record shows that the Veteran gave a history of painful menses with bad cramping, assessed as possibly related to endometriosis. A VA primary care outpatient record notes that the Veteran was evaluated in May 2004 at which time she was also being monitored for conditions including ovarian cysts. Probable infertility of unknown cause was also reported. A September 2004 primary care record notes that the Veteran was being monitored for amenorrhea without a definitive diagnosis. She also expressed concerns regarding fertility. The diagnoses included amenorrhea, resolved, now having periods. The Board's September 2008 remand directed that: The RO/AMC should also arrange for the veteran to undergo examinations to evaluate her claimed cramping/menstrual problems. The veteran should be fully evaluated from a gynecological standpoint. Such examinations should include detailed review of the veteran's history and current complaints, as well as comprehensive clinical status evaluation to include any and all diagnostic testing deemed necessary. All applicable diagnoses should be specified. The claims folder should be provided for the examiner for use in the study of this case and the report should indicate whether the claims folder was in fact made available and reviewed. The examiner is requested to provide medical opinions, each with a supporting rationale, as to the following: (a) Whether it is at least as likely as not (50 percent or greater degree of probability) that any gynecological disorder, claimed as cramping, that is currently present began during service or is otherwise linked any incident or finding recorded during service, to include the gynecological problems shown in service medical records? (b) Does the veteran exhibit objective indications of chronic disability involving menstrual problems resulting from an undiagnosed illness, which is defined as an illness or combination of illnesses manifested by one or more signs or symptoms and/or objective indications of a gynecological illness by history, physical examination, and laboratory tests, which cannot be attributed to any known clinical diagnosis? The Veteran was afforded a VA gynecological examination in November 2010. The examiner completely reviewed the Veteran's claims folder. The Board does observe that what appears to be the report of a private gynecological examination, conducted in September 2010, from the same gynecologist who examined the Veteran in November 2010 is also record. This private examination report, however, is inadequate for purposes of this adjudication, as it is shown to be incomplete, apparently due to faulty photocopying. Further, from what is legible from this September 2010 report, the medical opinions requested as part of the Board's September 2008 remand are not included. Review of the November 2010 VA examination report shows that the Veteran provided a comprehensive medical history pertaining to her cramping and menstrual problems. The examiner noted that the onset of most of the Veteran's symptoms was approximately 10 years ago, which would be sometime in 1990-1991. The symptoms (i.e., cramping, usually at the time of her menses) were reported to have worsened in the past two to three years. The examiner's assessment was longstanding history of menorrhagia and dysmenorrhea. Menorrhagia is defined as a synonym for hypermenorrhea. See STEDMAN'S MEDICAL DICTIONARY 1092 (27th ed. 2000). Hypermenorrhea is defined as "[e]xcessively prolonged or profuse menses." See STEDMAN'S MEDICAL DICTIONARY 851 (27th ed. 2000). Dysmenorrhea is defined as "[d]ifficult and painful menstruation." See STEDMAN'S MEDICAL DICTIONARY 553 (27th ed. 2000). The examiner, concerning the Veteran's menorrhagia, essentially opined that this disorder was as least likely as not related to any gynecologic issue that had been present for the past 10 years and initiated during her active military duty. The examiner noted that the Veteran had reported that her heavy vaginal bleeding began approximately 10 years earlier, which would place it at the time of her active military service. However, the Board notes that the Veteran's active duty from July 1990 to September 1991 was actually 20 years ago, not 10 years ago. Therefore, this internal inconsistency in the examination report must be clarified on remand. Moreover, the Board notes that the Veteran's history of heavy vaginal bleeding is not shown in the available service medical records. However, when a condition may be diagnosed by its unique and readily identifiable features, as here, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr, at 309. The Board is therefore of the opinion that heavy vaginal bleeding falls within this category. The examiner further mentioned that with the use of Depo-Provera the Veteran's menorrhagia was controlled. Of significant note, the examiner commented that "[e]xact etiology of her menorrhagia is uncertain at this time." He added that possible causes of menorrhagia included adenmyosis and uterine fibroids. The examiner also mentioned that "[f]urther gynecologic evaluation beyond physical examination would need to be performed to determine exact etiology." He also commented that because of the Veteran's normal cyclicity, the menorrhagia did not appear to be hormonally related, and, therefore, due to some other cause. Similarly, regarding the Veteran's cramping and dysmenorrhea assessed in the course of the examination, the examiner, in commenting that other causes for lower abdominal pelvic pain would include gastrointestinal, urinary or muscloskeletal diagnoses, opined that further "evaluation and workup" would be needed to fully elucidate. He also commented that gynecologic reasons could not be completely excluded as a cause for the Veteran's dysmenorrheal, but that there may been other causes that were more reasonable. As above noted, the September 2008 Board remand instructions clearly indicated that the examiner was to provide a medical opinion to this posed question: (a) Whether it is at least as likely as not (50 percent or greater degree of probability) that any gynecological disorder, claimed as cramping, that is currently present began during service or is otherwise linked any incident or finding recorded during service, to include the gynecological problems shown in service medical records? Review of the November 2010 examination report shows, in the opinion of the Board, the findings pertaining to this question to be confusing at best and incomplete at worst. While the examiner, concerning the diagnosed memorrhagia, seemed to try to relate this disorder to the Veteran's active military service, he specifically commented that the "[e]xact etiology of [the Veteran's] menorrhagia is uncertain at this time." He added that '[f]urther gynecologic evaluation beyond physical examination would need to be preformed to determine exact etiology." No such further evaluation is shown to have been conducted. Similarly, in discussing the Veteran's diagnosed cramping and dysmenorrheal, the examiner commented, after citing other possible causes for lower abdominal pelvic pain, that "further evaluation and workup" would be necessary to "fully elucidate" the exact etiology. Here, as the action ordered in September 2008 does not appear to have been adequately undertaken, appropriate corrective action must again be taken. Stegall. As also noted, the September 2008 Board remand instructions also clearly indicated that the examiner was to provide a medical opinion to the following question: (b) Does the Veteran exhibit objective indications of chronic disability involving menstrual problems resulting from an undiagnosed illness, which is defined as an illness or combination of illnesses manifested by one or more signs or symptoms and/or objective indications of a gynecological illness by history, physical examination, and laboratory tests, which cannot be attributed to any known clinical diagnosis? Here, the examiner in November 2010 did not even respond to this medical question. As the action ordered clearly was not undertaken, appropriate corrective action must again be taken. Stegall. Although VA may not order additional development for the sole purpose of obtaining evidence unfavorable to a claimant, see Mariano v. Principi, 17 Vet. App. 305, 312 (2003), VA has discretion to determine when additional information is needed to adjudicate a claim. See Kowalski v. Nicholson, 19 Vet. App. 171 (2005) (stating that VA has discretion to schedule a veteran for a medical examination where it deems an examination necessary to make a determination on the veteran's claim); Shoffner v. Principi, 16 Vet. App. 208, 213 (2002) (holding that VA has discretion to decide when additional development is necessary). In this case, the Board finds that the evidence needs further development because of the deficiencies contained within the November 2010 VA gynecological examination report. Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must forward the claim folders to the VA gynecologist, C.M., MD, who conducted the VA gynecological examination in November 2010. First, the examiner should note that the Veteran served on active duty from July 1990 to September 1991, and so the Veteran's symptoms having their onset 10 years earlier, as noted in the examination report, would not be during her active duty which was 20 years ago. The examiner is asked to clarify this apparent inconsistency in the November 2010 report. Second, after reviewing the claim folders, to include the November 2010 VA examination report findings and this Remand, the examiner must address the following: (a) Whether it is at least as likely as not (50 percent or greater degree of probability) that any gynecological disorder, claimed as cramping, that is currently present began during service or is otherwise linked to any incident or finding recorded during service, to include the gynecological problems shown in service medical records? (b) Does the Veteran exhibit objective indications of chronic disability involving menstrual problems resulting from an undiagnosed illness, which is defined as an illness or combination of illnesses manifested by one or more signs or symptoms and/or objective indications of a gynecological illness by history, physical examination, and laboratory tests, which cannot be attributed to any known clinical diagnosis? All indicated tests and studies - particularly those referenced by the examiner in November 2010 -- should be accomplished. The examination report should contain medical history, clinical findings, and a rationale for medical conclusions rendered. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history (,)" 38 C.F.R. § 4.1 (2010), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 2. In the event that the physician who examined the Veteran in November 2010 is unavailable, the RO/AMC should also arrange for the Veteran to undergo examinations to evaluate her claimed cramping/menstrual problems. The Veteran should be fully evaluated from a gynecological standpoint. Such examinations should include detailed review of the Veteran's history and current complaints, as well as comprehensive clinical status evaluation to include any and all diagnostic testing deemed necessary. All applicable diagnoses should be specified. The claims folder should be provided for the examiner for use in the study of this case and the report should indicate whether the claims folder was in fact made available and reviewed. The examiner is requested to provide medical opinions, each with a supporting rationale, as to the following: (a) Whether it is at least as likely as not (50 percent or greater degree of probability) that any gynecological disorder, claimed as cramping, that is currently present began during service or is otherwise linked to any incident or finding recorded during service, to include the gynecological problems shown in service medical records? (b) Does the Veteran exhibit objective indications of chronic disability involving menstrual problems resulting from an undiagnosed illness, which is defined as an illness or combination of illnesses manifested by one or more signs or symptoms and/or objective indications of a gynecological illness by history, physical examination, and laboratory tests, which cannot be attributed to any known clinical diagnosis? A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Since it is important "that each disability be viewed in relation to its history (,)" 38 C.F.R. § 4.1 (2010), copies of all pertinent records in the appellant's claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. The Veteran is hereby notified that it is her responsibility to report for any scheduled examination and to cooperate in the development of the claim. The consequences for failure to report for a VA examination without good cause may include denial of the claim. 38 C.F.R. §§ 3.158, 3.655 (2010). In the event that the Veteran does not report for any scheduled examination, documentation should be obtained which shows that notice scheduling the examination was sent to the last known address. It should also be indicated whether any notice that was sent was returned as undeliverable. 4. After undertaking any other development deemed appropriate, the RO/AMC should readjudicate the issue of entitlement to service connection for cramps/menstrual problems, claimed as due to an undiagnosed illness. If the benefits sought are not granted in any respect, the Veteran and her representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for future review. The purpose of this REMAND is to ensure due process. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. No action is required of the appellant until she is notified. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the Court 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). ______________________________________________ KATHLEEN K. GALLAGHER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs