Citation Nr: 1308653 Decision Date: 03/14/13 Archive Date: 03/25/13 DOCKET NO. 08-01 528 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to service connection for the residuals of a hysterectomy, to include as secondary to a service-connected disability. 2. Entitlement to a temporary total evaluation based on convalescence. REPRESENTATION Veteran represented by: Oklahoma Department of Veterans Affairs WITNESSES AT HEARING ON APPEAL The Veteran, J.H., M.H., and H.H. ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from December 1992 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, denying the claims currently on appeal. The Veteran submitted a notice of disagreement with these determinations in June 2007, and timely perfected her appeal in January 2008. In June 2009, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge (AVLJ) at the RO in Muskogee, Oklahoma. A written transcript of this hearing has been prepared and incorporated into the evidence of record. These claims were denied by the Board in a decision dated March 2010. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court), and in September 2011, the Court granted a joint motion to remand these issues back to the Board. As a result of the Court's September 2011 joint motion, in October 2011, the Board referred this case for medical expert opinion with the Veterans Health Administration (VHA). In October 2012, the Board received the VHA opinion. In November 2012, the Veteran was provided a copy of this opinion with an opportunity to present further argument and/or evidence; she did not respond FINDINGS OF FACT 1. The Veteran's hysterectomy was not due to disease or injury incurred during active military service. 2. The Veteran's hysterectomy was not due to a service-connected disability, to include a right salpingectomy. 3. The Veteran is not shown to have a service-connected disability that has required hospital treatment, in a VA facility or approved private facility, for a period in excess of 21 days. 4. The Veteran is not shown to have a service-connected disability that has required a period of convalescence following treatment. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to service connection for the residuals of a hysterectomy, to include as secondary to a service-connected disability, have not been met. 38 U.S.C.A. §§ 1110, 1133, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2012). 2. The criteria for the assignment of a temporary total rating based on hospital treatment or observation due to a service-connected disability have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. § 4.29 (2012). 3. The criteria for the assignment of a temporary total rating based on need for a period of convalescence following hospital treatment due to a service-connected disability have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002 & Supp. 2012); 38 C.F.R. § 4.30 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on her behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence, which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, 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 a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. The Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the Veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran 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 RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Previously, the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the failure to provide pre-adjudicative notice of any of the necessary duty to notify elements was presumed to create prejudicial error. Sanders v. Nicholson, 487 F.3d 881 (2007). VA was required to show that that the error did not affect the essential fairness of the adjudication, and that to make such a showing the VA had to demonstrate that the defect was cured by actual knowledge on the claimant's part or that a benefit could not have been awarded as a matter of law. Id. However, the United States Supreme Court (Supreme Court) recently held this framework to be inconsistent with the statutory requirement that the Court take "due account of the rule of prejudicial error" under 38 U.S.C.A. § 7261(b)(2). Shinseki v. Sanders, 556 U.S. 396 (2009). In reversing the Federal Circuit's decision, the Supreme Court held that the burden is on the claimant to show that prejudice resulted from the error, rather than on VA to rebut a presumed prejudice. Id. Letters sent to the Veteran in February 2007 and October 2010 addressed all notice elements listed under 3.159(b)(1) and the February 2007 letter was sent prior to the initial RO decision in this matter. The letters informed her of what evidence was required to substantiate the claims and of her and VA's respective duties for obtaining evidence. Under these circumstances, the Board finds that the notification requirements have been satisfied as to both timing and content. Adequate notice was provided to the Veteran prior to the transfer and certification of her case to the Board that complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting her 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 Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA obtained the Veteran's service treatment records, VA and private treatment records. Significantly, neither the Veteran nor her representative has identified any additional existing evidence that is necessary for fair adjudication of the claims that has not yet been obtained. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law. The record indicates that the Veteran participated in VA examinations in September 2004 and March 2007. The Veteran was also afforded a VHA medical opinion in November 2012. The results of these reports have been included in the claims file for review. The reports involved a review of the claims file and opinions that were supported by sufficient rationale. Therefore, the Board finds that the examination and VHA reports are adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claims. As noted above, the Veteran was also afforded a hearing before the undersigned AVLJ, during which she presented oral argument in support of her claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) (2012) requires that the AVLJ, VLJ or Decision Review Officer who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, the AVLJ fully explained the issues on appeal during the hearing and specifically discussed the elements of the claims that were lacking to substantiate the claims for benefits, and suggested the submission of evidence that would be beneficial to the Veteran's claims. Significantly, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claims, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claims. As such, the Board finds that, consistent with Bryant, the AVLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) (2012). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of her appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of her claims such that the essential fairness of the adjudication is not affected. II. The Merits of the Claims A. Service Connection Relevant Law and Regulations Service connection will be granted if it is shown that a veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service-connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or disease incurred in service. Watson v. Brown, 4 Vet. App. 309, 314 (1993); see also Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be granted for a disability, which is proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Also, any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. See 38 C.F.R. § 3.310(b); Libertine v. Brown, 9 Vet. App. 521, 522 (1996); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995). An Veteran's own conclusion, stated in support of her claim, that her present disability is secondary to her service-connected disability is not competent evidence as to the issue of medical causation. See 38 C.F.R. § 3.159 (2012); see also Grivois v. Brown, 6 Vet. App. 136 (1994). A layperson is generally not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183, 186 (1997); see also Bostain v. West, 11 Vet. App. 124, 127 (1998) (citing Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder)). Lay evidence, if competent and credible, may serve to establish a nexus in certain circumstances. See Davidson v. Shinseki, 581 F.3d 1313 (2009) (noting that lay evidence is not incompetent merely for lack of contemporaneous medical evidence). Analysis The Veteran's service treatment records reflect that she was found to have the human papilloma virus (HPV) in April 1994. The Veteran was also noted to have pelvic pain in October 1994. A diagnostic laparoscopy was performed, revealing extensive adhesions of both ovaries and fallopian tubes. The Veteran was diagnosed with extensive pelvic adhesive disease (PAD) and it was noted that the Veteran had a history of probable pelvic inflammatory disease (PID). Surgery was performed and the adhesions were removed from the ovaries, the fallopian tubes and the pelvic wall. It was noted that the uterus itself was normal. Following the procedure, it was noted that the distal ends of the fallopian tubes were questionably blocked. A vaginal evaluation was not performed during the Veteran's March 1996 separation examination, but the Veteran did indicate in her report of medical history associated with this examination that she had not had a change in her menstrual pattern during service. Following her separation from active duty, the Veteran had a right-sided ectopic pregnancy in January 1997. A laparoscopic right salpingostomy was performed. In December 1997, the Veteran had another ectopic pregnancy with right hemorrhagic bleeding. A right salpingectomy was performed at this time. Left hydrosalpinx was also noted at this time. The record contains a February 2001 private treatment record from a physician with the initials B.H.A. This record reflects that the Veteran had multiple complaints, including heavy uterine bleeding for the last few months. It was also noted that she suffered from significant menstrual cramps. The Veteran was diagnosed with irregular menstrual cycle or, at least, metrorrhagia. The record also contains a statement from Dr. A dated November 2001, indicating that the Veteran had been under her care since May 2000. Dr. A stated that the Veteran had not been on any contraception, but despite her desire, she had not had any pregnancies. The Veteran was afforded a VA examination in September 2004. The examiner noted that the Veteran had laparoscopy for pelvic pain in 1994. This revealed the Veteran to be suffering from PID. Subsequently, in 1997, the Veteran underwent two surgeries related to ectopic pregnancy, including a right first salpingostomy and a ruptured ectopic pregnancy with right salpingectomy. The Veteran was diagnosed with a history of PID while in the military, resulting in two tubal pregnancies, a salpingostomy and a salpingectomy. The record contains a number of private treatment records from the U.T.S.M.C. According to a December 2006 record, the Veteran was referred from VA with complaints of excessive prolonged vaginal bleeding that had become progressively worse over the past 3 years. It was noted that treatment with Depo Provera had failed. A December 2006 operative report from S.P.U.H. reflects that the Veteran underwent a laparoscopic assisted vaginal hysterectomy and a right salpingo-oophorectomy. She was noted to have had a long history of menorrhagia that failed to respond to medical management. A consultation note from earlier in the month noted that the physician believed the Veteran was likely to have long lasting results with ablation procedure. The Veteran strongly declined, indicating that she had suffered for over 10 years with multiple gynecologic procedures. She desired definitive surgical management. The Veteran was afforded a VA examination in March 2007. It was noted that the Veteran had a history of a right salpingectomy, laparoscopic vaginal hysterectomy and right ovary removal. This condition was noted to have existed since 2004. The Veteran reported suffering from heavy bleeding since 1998 and irregular bleeding since 1993. It was further noted that the right ovary was removed in December 2006 and the uterus was removed in December 2006. The Veteran was diagnosed with status post-vaginal hysterectomy and right oophorectomy. The examiner opined that it was less likely than not that the hysterectomy and ovary removal were a complication of pelvic inflammatory disease (PID). The examiner explained that the hysterectomy was performed because of a bleeding uterine polyp and that this was not related to the PID. In September 2008, the Veteran underwent a laparoscopic assisted vaginal hysterectomy and right salpingo-oophorectomy. A polypoid lesion was noted in the uterus and the right ovary was partially solid and partially cystic. An October 2008 VA surgery note reflects that the Veteran was admitted with a left ovarian cystic mass. It was noted that she had a previous hysterectomy with right salpingoophorectomy. A left oophorectomy was performed at this time. In November 2012, VA requested a medical opinion from a VA physician. This physician opined that it was less likely as not that the Veteran's service-connected PID and subsequent right salpingectomy resulted in her subsequent hysterectomy. The physician further opined that it was less likely as not that the Veteran's uterine polyp manifested as a result of her service-connected disabilities. The physician explained that the Veteran had a history of menorrhagia and dysmenorrhea since February 2001 until the time of her surgery in December 2006. During that time, the Veteran was noted to have "chronic PID by history with pelvic pain ...." The physician noted that the Veteran was treated with hormonal medication, which would not prove useful in the treatment of chronic PID because it is not an antibiotic. Based on this information, the physician concluded that the Veteran was being treated for a condition of heavy and painful menses and not for a current pelvic infection. The physician also reviewed the relevant medical literature, which listed approximately 40 possible causes of abnormal bleeding. Nowhere among these causes was there any mention of pelvic adhesions or scarring. As such, the physician opined that it was unlikely that the Veteran's pelvic adhesions, which are presumed to have resulted in the Veteran's ectopic pregnancies, would have had any impact upon her heavy and painful menses. The physician further noted that a significant number of women with abnormal uterine bleeding have uterine abnormalities. The physician explained that from February 2001 to December 2006, there were 5 notes in the Veteran's medical record documenting complaints of cramping, pain and dysmenorrhea. The physician concluded that this was not consistent with PID in which the abdominal pain was rarely more than two weeks in duration. Furthermore, multiple pelvic examinations were also performed during this time and three examinations specifically documented no pain on pelvic examination. This too was not consistent with PID, as lower abdominal pain is the cardinal presenting symptom of PID. Finally, the mechanism by which PID would cause abnormal bleeding is that the infected/inflamed uterus, fallopian tubes and cervix would bleed from the infectious/inflammatory process. The surgical pathology report from the Veteran's surgery did not show any endometritis, salpingitis or cervicitis, as would be expected with a current case of PID. Therefore, the physician opined that the Veteran did not have PID at the time of her hysterectomy. Finally, the physician noted that the literature revealed no mention of PID, endometritis, salpingitis, or cervicitis as a cause of endometrial polyps. As such, the physician concluded that it was unlikely that the Veteran's probable PID would have had any impact on her endometrial polyp. The physician concluded that based on his experience as a Board certified gynecologist, as well as a review of the medical literature, it was at least as likely as not that the Veteran's heavy and painful menses which led to her hysterectomy were caused by her endometrial polyp. The preponderance of the above evidence demonstrates that service connection for the residuals of a hysterectomy is not warranted. The record reflects that the Veteran did not undergo a hysterectomy until approximately 10 years after her separation from active duty. There is no competent evidence of record linking this hysterectomy to military service or the Veteran's service-connected salpingectomy. The March 2007 VA examiner explained that the Veteran's hysterectomy was performed because of a bleeding uterine polyp. The examiner concluded that this had no relation to PID. The November 2012 VA physician also opined that it was less likely as not that the Veteran's PID and subsequent right salpingectomy caused her subsequent hysterectomy, and, that it was less likely as not that the Veteran's uterine polyp manifested as a result of her service-connected disabilities. The physician provided a great deal of discussion in support of this conclusion, as well as reviewing the relevant medical literature. This literature revealed no mention of PID, endometritis, salpingitis or cervicitis as a cause of endometrial polyps. The physician further explained that the Veteran was not suffering from chronic PID following military service, and, that it was at least as likely as not that the Veteran's uterine polyp was due to her heavy menses, which were not related to pelvic adhesions or scarring. The Board notes that the Veteran reported heavy bleeding since 1998 during her 2007 VA examination. However, the Board does not find this assertion to be credible. While receiving medical treatment in February 2001, the Veteran reported heavy uterine bleeding for only the last few months. The Board finds the Veteran's assertion made in 2001 for the purpose of seeking medical treatment to be more credible than her recollection offered during an examination some 6 years later. During her June 2009 hearing before the undersigned, it was argued that the Veteran's salplanectomy was responsible for her subsequent hysterectomy. It was also argued that the removal of a polyp in service under unclean conditions resulted in her eventual hysterectomy. In support of this assertion, it was argued that the Veteran's gynecologists had told her that all of her subsequent uterine problems were related to her PID and HPV during service. While the Board has considered these assertions, they are not supported by the evidence of record. A review of the Veteran's private gynecological records fails to demonstrate that any physician related the Veteran's uterine polyp to a history of PID or HPV. Furthermore, a Board certified gynecologist directly contradicted such a relationship in November 2012. This opinion was based on a review of relevant gynecological medical literature. The Board finds this opinion to be more persuasive than the unsupported assertion that the Veteran has been told by her private gynecologist in the past that there was a relationship between her uterine polyp and PID or HPV. The Board recognizes that the Veteran truly believes she is entitled to service connection for the residuals of a hysterectomy. When considering whether lay evidence may be competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (holding that " [w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board"). In the present case, the assertions by the Veteran and her representative appear to be based purely on speculation. The record contains no evidence to demonstrate that the Veteran has the requisite training or expertise to offer a medical opinion as complex as linking a uterine polyp to a disease incurred some 10 years earlier. The Veteran also submitted several Internet articles in support of her claim. One of these articles, from the website of the Center for Disease Control (CDC), defines PID and indicates that one potential complication in the future is an ectopic pregnancy. Another article from the National Institute of Health (NIH) provides similar information. While the Board has reviewed this information, it fails to provide support for the claim currently on appeal. VA has already granted service connection for a right salpingectomy, so the relationship between PID and an ectopic pregnancy is not in dispute. These articles fail to relate PID or a salpingectomy to a subsequent uterine polyp. Finally, the Veteran asserted during her June 2009 hearing that she had heard that the VA examiner who conducted her examination was under investigation for denying claims to save VA money. VA has received no evidence in support of this assertion. Furthermore, there would be no prejudice to the Veteran, as her claims file was subsequently forwarded to a different physician who provided a detailed opinion based on the evidence of record, a review of the relevant medical literature and the physician's own experience as a Board certified gynecologist. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The preponderance of the evidence is against the Veteran's claim of entitlement to service connection for the residuals of a hysterectomy, to include as secondary to a service-connected disability. The claim must be denied. Entitlement to a Temporary Total Evaluation Based on Convalescence Initially, the Board notes that service connection has not been effectuated for the claimed residuals of a hysterectomy. A total disability rating will be assigned when it is established that one or more service-connected disabilities has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days or hospital observation at VA expense for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. A total disability rating will be assigned when it is established by report at hospital discharge or outpatient release that treatment of a service-connected disability resulted in surgery necessitating at least one month of convalescence; surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches; or immobilization by case, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (2012). In this case, a temporary total evaluation cannot be granted because the Veteran has not been awarded service connection for the claimed disability. In the absence of a service-connected disability, temporary total evaluations are not warranted and the appeal in this regard is denied. See 38 C.F.R. §§ 4.29, 4.30 (2012). ORDER The claim of entitlement to service connection for the residuals of a hysterectomy, to include as secondary to a service-connected disability, is denied. Entitlement to a temporary total disability evaluation for hospital treatment pursuant to 38 C.F.R. § 4.29 is denied. Entitlement to a temporary total disability evaluation for convalescence pursuant to 38 C.F.R. § 4.30 is denied. ____________________________________________ K. A. KENNERLY Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs