Citation Nr: 1308767	
Decision Date: 03/15/13    Archive Date: 03/25/13

DOCKET NO.  09-34 854	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Indianapolis, Indiana



THE ISSUE

Entitlement to a rating in excess of 40 percent for a lumbosacral spine disability.



REPRESENTATION

Appellant represented by:	Allen Gumpenberger



ATTORNEY FOR THE BOARD

M. Mills, Associate Counsel




INTRODUCTION

The Veteran served on active duty from August 1975 to September 1976.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana.  In that decision, the RO noted that the Veteran did not claim an increase in this disability, but assigned a 40 percent disability rating effective from March 3, 2008, which was the date of a VA examination that showed his condition had worsened and warranted a higher rating.  The Veteran appealed the assigned rating in a July 2008 notice of disagreement.

In March 2010, the Veteran testified at a hearing before a Decision Review Officer at the RO.  A transcript of the hearing is associated with the claims file. 

During the pendency of the appeal, the RO issued a rating decision in February 2011, which granted a temporary 100 percent evaluation under 38 C.F.R. § 4.30 for a convalescence period following surgery for the service-connected lumbosacral spine disability effective from January 26, 2010.  A 40 percent evaluation was assigned effective from April 1, 2010. 

The Board notes that the Veteran requested a hearing and that he was scheduled for one in February 2013; however, he failed to report for that hearing.  As he has not provided cause for his failure to appear or requested another hearing, the Veteran's hearing request is deemed withdrawn, and the Board will proceed with its review on the present record.  See 38 C.F.R. § 20.704 (d).

The Veteran also perfected an appeal as for the issue of entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU).  In a March 2012 rating decision, the RO granted entitlement to TDIU.  As such, the RO has granted the benefit sought on appeal in full, and the issue is no longer in appellate status. 

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.


FINDINGS OF FACT

The Veteran's lumbosacral spine disability has not been productive of unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a total duration of at least six weeks.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 40 percent for a lumbosacral spine disability have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, Diagnostic Codes 5235-5243 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

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). 

In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 

With regard to claims for increased disability ratings for service-connected conditions, the law requires VA to notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration.  Finally, the notice must provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the VA to obtain) that are relevant to establishing her or his entitlement to increased compensation.  However, the notice required by section 5103(a) need not be specific to the particular Veteran's circumstances; that is, VA need not notify a Veteran of alternative diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular Veteran's daily life. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  The notice must be provided prior to an initial unfavorable decision by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In this case, the Board does acknowledge that the RO did not provide the Veteran with adequate notice prior to the rating decision in July 2008.  Nevertheless, the RO did send the Veteran a notice letter and the relevant diagnostic codes in August 2008.  That letter explained how disability ratings and effective dates are determined and explained the types of evidence that may be considered in determining a disability rating.  A December 2010 letter also informed him about the division of responsibilities in obtaining the evidence.  The Board finds that any defect with respect to the timing of the notice requirement was harmless error.

In this regard, the Board notes that, while adequate notice provided to the Veteran was not given prior to the first agency of original jurisdiction (AOJ) adjudication of the case, notice was provided by the AOJ prior to the transfer and certification of the Veteran's case to the Board, and the content of the notice fully complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b).  After the notice was provided, the Veteran's claim was readjudicated in a statement of the case (SOC). 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 the claim and notifying claimant of such readjudication in the statement of the case).  The claimant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notices, and he has taken full advantage of these opportunities, submitting evidence and argument in support of his claim.  Viewed in such context, the furnishing of notice after the decision that led to this appeal did not compromise the essential fairness of the adjudication. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Conway v. Principi, 353 F.3d 1369, 1373 (Fed. Cir. 2004).  The Veteran has had a "meaningful opportunity to participate effectively," Dingess/Hartman, and the Board finds that the present adjudication of the appeal will not result in any prejudice to the Veteran. 

Moreover, neither the Veteran nor his representative have alleged any harm or prejudice caused by the content or timing of the notice. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination.).  

In addition, the duty to assist the Veteran has been satisfied in this case.  The Veteran's service treatment records as well as all identified and available post-service medical records pertinent to the years after service are in the claims file and were reviewed by both the RO and the Board in connection with the Veteran's claim.  His records have also been obtained from the Social Security Administration (SSA).  The Veteran has not identified any outstanding evidence that is pertinent to the issues being decided herein. 

The Veteran also provided VA examinations in August 2007, March 2008, and February 2012.  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 most recent February 2012 VA examination obtained in this case is adequate, as it is predicated on a review of the claims file and all pertinent evidence of record as well as on a physical examination and fully address the rating criteria that are relevant to rating the disability in this case. 

There is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined. 38 C.F.R. § 3.327(a).  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. 

Thus, there is adequate medical evidence of record to make a determination in this case.  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 his claim and did in fact participate. Washington v. Nicolson, 21 Vet. App. 191 (2007).  For these reasons, the Board concludes that VA has fulfilled the duty to assist the Veteran in this case.  Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. 

Law and Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. 

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole- recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 

Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999).  If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). 

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements.  In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995).  The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40.  Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45.  Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. 

In this case, the Veteran's lumbosacral spine disability is currently assigned a 40 percent disability evaluation, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5237.  Diagnostic Code 5237 provides that lumbosacral or cervical strain should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine. 

Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent disability evaluation is assigned when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees but not greater than 235 degrees; there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, there is a vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent disability evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent evaluation is contemplated when there is forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. 

Note 1 to this provision provides that associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). 

Further, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees.  The normal combined range of motion range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 230 degrees.  The normal ranges of motions for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (2); see also 38 C.F.R. § 4.71a, Plate V. 

Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). 

Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months.  A 20 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months.  A 40 percent disability evaluation is contemplated for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months, and a 60 percent disability evaluation is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1).  If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id.  Note (2). 

In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for his lumbosacral spine disability at any point during the pendency of the appeal.

The Veteran has not been shown to meet the criteria for a higher rating.  The evidence does not reveal unfavorable ankylosis of the entire thoracolumbar spine.  In this regard, the August 2007 VA examiner indicated that the Veteran had 45 degrees of forward flexion, 20 degrees of extension, 15 degrees of left and right lateral flexion, and 10 degrees of left and right lateral rotation.  The March 2008 VA examiner also indicated that the Veteran had 30 degrees of forward flexion, 20 degrees of extension, lateral rotation to the left and right to 10 degrees, and lateral rotation to the left and right to 10 degrees.  In addition, the February 2012 VA examination found that he had forward flexion to 40 degrees, extension to 10 degrees, lateral flexion to the left and right to 10 degrees, and lateral rotation to the left and right to 10/15 degrees.  

The Board notes that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)).  Based on the aforementioned range of motion findings, the Veteran's spine does not appear to be fixed or immobile.  

Moreover, the evidence does not show that the Veteran has had incapacitating episodes having a total duration of at least at least 6 weeks during the past 12 months.  As previously noted, an incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note 1.  The Board observes that there are no treatment records associated with the claims file indicating that the Veteran was prescribed bed rest by any physician for at least six weeks.  The Veteran did tell the August 2007 VA examiner that he had three to four incapacitating episodes in the past twelve months with a duration of six to twelve hours out of the day; however, such episodes would still not meet the durational requirement.  Nor is any indication that he was prescribed such bed rest by a physician.  In addition, the February 2012 VA examiner specifically indicated that the Veteran does not have intervertebral disc syndrome of the thoracolumbar spine.  Therefore, an increased evaluation is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

After reviewing the record, the Board further finds that a separate disability rating is not warranted because the evidence does not demonstrate that the Veteran suffered from a separate neurological disability distinct from his lumbar spine disability.  The evidence of record does not identify any separate neurological findings or disability not already contemplated under the discussed pertinent criteria.  Notably, the Veteran is already separately service-connected for radiculopathy of the left and right lower extremities and assigned separate 10 percent and 20 percent disability evaluations, respectively.  Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994).  The Veteran has not appealed the radiculopathy evaluations.  Moreover, during the February 2012 VA examination, the Veteran denied having any bowel or bladder problems.  The examiner further indicated that the Veteran currently had no true neuropathies.  Therefore, the Board concludes that the Veteran did not suffer from additional neurological deficiency that is a manifestation of his service-connected lumbosacral spine disability so as to warrant a separate disability rating under the diagnostic codes pertinent to rating neurological disorders. See Bierman, 6 Vet. App. at 129-132.

The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca.  However, an increased evaluation for the Veteran's back disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 40 percent rating, and no higher.  In this regard, the Board observes that the Veteran complained of pain on numerous occasions, and the February 2012 VA examiner commented that repetitive motion tests could not be performed due to pain.  However, the effect of the pain in the Veteran's back is contemplated in the currently assigned 40 percent disability evaluation.  Moreover, the Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation.  In this regard, the February 2012 VA examiner indicated that the Veteran still had forward flexion with pain at 30 degrees, extension with pain at 10 degrees, left and right lateral flexion with pain at 10 degrees, and left and right lateral rotation with pain at 10 degrees.  The Court has held that pain alone does not constitute functional loss under VA regulations that evaluate disabilities based upon loss of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011).  Therefore, the Board finds that the preponderance of the evidence is against an evaluation in excess of 40 percent for the Veteran's lumbosacral spine disability.  

The Board has also considered whether "staged" disability ratings are warranted by the evidence.  The symptomatology shown upon examination and treatment, however, has been essentially consistent and fully contemplated by the assigned disability ratings.  As such, there is no basis for staged disability ratings in this case.

In reaching this decision, the potential application of various provisions of Title 38 Code of Federal Regulations have been considered, whether or not they were raised by the Veteran. Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In particular, the Board has considered the provisions of 38 C.F.R. § 3.321(b)(1).  However, in this case, the Board finds that the record does not show that the Veteran's lumbosacral spine disability is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). 

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008).  In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1) ) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization). 

The evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate.  A comparison between the level of severity and symptomatology of the Veteran's assigned rating with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology, which primarily consist of pain and limitation of motion.  As discussed above, there are higher ratings available under the criteria, but the Veteran's disability is not productive of such manifestations. 

Based on the foregoing, the Board finds that the requirements for an extraschedular evaluation for the Veteran's service-connected lumbosacral spine disability under the provisions of 38 C.F.R. § 3.321(b)(1) have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun v. Peake, 22 Vet. App. 111 (2008).


ORDER

An evaluation in excess of 40 percent for a lumbosacral spine disability is denied.



____________________________________________
JESSICA J. WILLS
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs