Citation Nr: 1316151 Decision Date: 05/16/13 Archive Date: 05/29/13 DOCKET NO. 10-18 464 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for an acquired psychiatric disorder, including depression and memory loss. 2. Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure. 3. Entitlement to service connection for hypertension, to include as due to herbicide exposure. 4. Entitlement to service connection for below the right knee amputation as secondary to diabetes mellitus. 5. Entitlement to service connection for residuals of left foot surgery as secondary to diabetes mellitus. 6. Entitlement to an initial compensable rating for HIV-related illness. WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD S. Mishalanie, Counsel INTRODUCTION The Veteran served on active duty from May 1972 to May 1976 and October 1976 to March 1983. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. In May 2011, the Veteran testified at a Travel Board hearing before a Veterans Law Judge; a transcript of the hearing is of record. In March 2013, the Veteran was notified that the Veterans Law Judge who conducted the hearing was no longer employed at the Board. Pursuant to 38 U.S.C.A. § 7101(c) (West 2012), the Veteran was offered another opportunity to testify at hearing before a Veterans Law Judge who could participate in making a final determination on his claims. He was informed that if he did not respond within 30 days, the Board would assume he did not want another hearing and proceed accordingly. He did not respond. The record reflects that the Veteran was previously represented by the Texas Veterans Commission. In May 2011, the Veteran revoked the Texas Veterans Commission's power of attorney. 38 C.F.R. § 14.631(f) (2012). At the Board hearing, he clarified that he wished to proceed pro se. In October 2011, the Board remanded the claims for additional development. A review of the file reflects that the Agency of Original Jurisdiction (AOJ) has substantially complied with the prior remand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where Board's remand instructions were substantially complied with). In addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claims. The Virtual VA file has been reviewed in conjunction with the disposition of the issues on appeal. The issues of entitlement to service connection for an acquired psychiatric disorder, to include depression and memory loss, and entitlement to an initial compensable rating for HIV-related illness are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Exposure to herbicides in service has not been established. The Veteran is not shown to have set foot in Vietnam or its inland waterways. 2. Diabetes mellitus type II was initially demonstrated many years after service discharge and is not otherwise attributable to service. 3. As service connection for diabetes mellitus has not been established, there is no legal basis for a grant of service connection for below the right knee amputation and for residuals of left foot surgery. 4. Hypertension was initially demonstrated many years after service discharge and is not otherwise attributable to service. CONCLUSIONS OF LAW 1. The criteria for service connection for diabetes mellitus type II, to include as due to herbicide exposure, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 1131, 1137, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for service connection for below the right knee amputation as secondary to diabetes mellitus are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.310 (2012). 3. The criteria for service connection for residuals of left foot surgery as secondary to diabetes mellitus are not met. 38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.310. 4. The criteria for service connection for hypertension, to include as due to herbicide exposure, are not met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Regarding the Veteran's claims of entitlement to service connection, the requirements of 38 U.S.C.A. § 5103 and 5103A have been met. There is no issue as to providing an appropriate application form or the completeness of the application. VA notified the Veteran in March 2007, June 2008, October 2008, and December 2009 of the information and evidence needed to substantiate and complete the claims, to include notice of what part of that evidence is to be provided by the claimant, what part VA will attempt to obtain, and how disability ratings and effective dates are determined. The case was most recently readjudicated in September 2012. VA fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claims, and as warranted by law, affording VA examinations. In October 2011, the Board remanded the issues to obtain any outstanding VA and private treatment records, records from the Social Security Administration (SSA), and to obtain a VA examination and medical opinion addressing the nature and etiology of the Veteran's claimed psychiatric disability. A review of the claims file reflects that all available SSA records, VA treatment records, and private treatment records have been obtained. The Veteran was notified of VA's efforts to obtain private treatment records and any inability to obtain them. A VA mental health examination was conducted in November 2011, and for the reasons explained in the remand section, the Board finds that a supplemental opinion is needed. With respect to the claims of entitlement to service connection for diabetes mellitus, hypertension, below the right knee amputation, and residuals of left foot surgery, the Board notes that the Veteran has not been provided with VA examinations or medical opinions regarding these matters. Under the VCAA, VA must provide an examination when there is competent evidence of a disability (or persistent or recurrent symptoms of a disability) that may be associated with an in-service event, injury, or disease, but there is insufficient information to make a decision on the claim. 38 U.S.C.A. § 5103A(d); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran's reports of a continuity of symptomatology can satisfy the requirement for evidence that the claimed disability may be related to service, and the threshold for finding that the disability (or symptoms of a disability) may be associated with service is low. McLendon, 20 Vet. App. at 83; Locklear v. Nicholson, 20 Vet. App. 410, 419 (2006). In this case, as will be discussed in detail below, the Veteran does not assert and the evidence does not show that his diabetes mellitus and hypertension manifested in service or within one year of service. The record reflects that these conditions manifested in the early 1990s or later. Rather, the Veteran asserts that his unhealthy eating habits in service caused his diabetes mellitus and hypertension; however, his has not provided any competent evidence to support this assertion. Likewise, although he alternatively argues that service connection based on exposure to herbicides, the evidence does not indicate that he served in Vietnam or its inland waterways or was otherwise exposed to herbicides. Under these circumstances, the Board finds that VA examinations are not required, even under the low threshold of McLendon. Regarding below the right knee amputation and residuals of left foot surgery, the Veteran asserts and the evidence shows that these disabilities arose from diabetic wounds. Because the Board finds below that service connection is not warranted for diabetes mellitus, VA examinations for any secondary conditions are not required. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Legal Criteria Service connection is established where a particular injury or disease resulting in disability was incurred in the line of duty in active military service or, if pre-existing such service, was aggravated during service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498 (1995). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). In addition, for veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including diabetes mellitus and hypertension, are presumed to have been incurred in service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. Where there is a chronic disease shown in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). When a condition noted during service is not shown to be chronic, or the fact of chronicity in service is not adequately supported, then a showing of continuity of symptomatology after discharge is required to support the claim. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1337 (Fed. Cir. 2013) (noting that the continuity of symptomatology provisions apply only to the chronic disorders as listed in 38 C.F.R. § 3.309(a)). The law also establishes a presumption of entitlement to service connection for diseases associated with exposure to certain herbicide agents and also provides a presumption of exposure for veterans who served in the Republic of Vietnam. See 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307, 3.309(e). In this respect, if a veteran was exposed to an herbicide agent during active military service, type 2 diabetes shall be service-connected, if the disorder became compensably disabling at any time after separation from active duty, 38 C.F.R. § 3.307(a)(6); and provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are satisfied. 38 C.F.R. § 3.309(e). If a veteran served on active duty in the Republic of Vietnam during the Vietnam era (beginning on January 9, 1962 and ending on May 7, 1975), he/she is presumed to have been exposed to herbicides, unless there is affirmative evidence to establish that a veteran was not exposed to any such agent during that service. The last date on which a veteran shall be presumed to have been exposed to an herbicide agent shall be the last date on which he served in the Republic of Vietnam during the period beginning on January 9, 1962 and ending May 7, 1975. Service in the Republic of Vietnam includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). VA has validly interpreted the "service in Vietnam" language of the statute and regulation as requiring that a Veteran must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Analysis Diabetes Mellitus, Below the Right Knee Amputation, and Residuals of Left Foot Surgery As noted above, the Veteran does not assert that his diabetes mellitus manifested in service or within one year of service. Rather, he argues that his unhealthy eating habits and stress in service caused the condition or, alternatively, that it was caused by exposure to Agent Orange. The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnosis related to diabetes mellitus. On all examinations, including his March 1983 separation examination, his endocrine system was reported as normal and urinalysis tests were negative for sugar. In January 1981, he underwent a weight control evaluation and it was noted that he had no history of diabetes or thyroid disease. A March 1992 VA outpatient treatment record from the VA Medical Center in Shreveport, Louisiana reflects that a urinalysis test was high for glucose. It was noted that he should return for fasting blood sugar. A July 1992 follow-up record notes a diagnosis of adult onset diabetes mellitus. He was referred for a dietitian consultation and diabetic teaching. In March 2007, the Veteran filed a claim of entitlement to service connection for diabetes mellitus. He claimed that diabetes was diagnosed in 1991 and was due to poor eating habits and stress during service. A private treatment record from Waikiki Health Clinic reflects an onset of diabetes mellitus in 1991. Private treatment records from AIDS Healthcare Foundation reflect an onset of diabetes mellitus in 1994. A private treatment record from Tripler Army Medical Center reflects an onset of diabetes mellitus in 1994. In his June 2009 notice of disagreement (NOD), the Veteran claimed that his diabetes mellitus was caused by an unhealthy diet in service and being forced to snack on unhealthy food during long watches. He also asserted that there was improper reading of blood and lab tests during service. At the outset, the Veteran is competent to report that his unhealthy eating habits and the onset of his diabetes. See 38 C.F.R. § 3.159(a)(2); Layno v. Brown, 6 Vet. App. 465, 470 (1994); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Board also finds the Veteran's statements regarding his eating habits are credible. Furthermore, the evidence supports that he was diagnosed with diabetes mellitus in 1992, which is approximately the same time frame reported by the Veteran. As noted, the first medical record documenting diabetes is the March 1992 record from the Shreveport VAMC - 9 years after service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The present case involves not simply a lack of clinical evidence, but normal findings at separation and a time gap of almost a decade. In this case, neither medical evidence nor credible lay evidence establishes that diabetes mellitus manifested or was noted in service or that there has been any continuity of symptomatology since service. Therefore, the Board finds that diabetes mellitus did not manifest in service, to a compensable degree within one year of service, or for many years thereafter. The Board has also considered whether presumptive service connection is warranted for diabetes mellitus based on herbicide exposure. In a June 2008 statement, the Veteran asserted that he was exposed to Agent Orange while serving on the U.S.S. Badger (FF1045) in the South China Sea from 1973 to 1975. In a statement later that month, he clarified that he was unsure if he was exposed to Agent Orange, but that he served on the U.S.S. Davidson (FF1045) in various waters off the coast of Vietnam from 1974 to 1975. During the May 2011 Board hearing, he testified that he never set foot in Vietnam, but that his ship was less than 60 miles off the coast. In this case, the Veteran does not assert that he set foot in the Republic of Vietnam during the Vietnam era. According to VA's list of ships with military service in Vietnam, the U.S.S. Davidson, a destroyer escort, operated on Vung Ganh Rai and Rung Sat Special Zone of Mekong River Delta from September 16 to October 5, 1967. The Veteran did not serve on active duty during this time period. On September 20, 1972, the U.S.S. Davidson sent a motorized whaleboat ashore while anchored off coast of Tan My; however, the Veteran does not allege that he was sent ashore at any point during his service. The U.S.S. Badger, also a destroyer escort, is not on VA's list of ships with military service in Vietnam. See http://www.publichealth.va.gov/exposures/agentorange/shiplist/list.asp#H Consequently, the weight of the evidence is against a finding that the Veteran set foot in Vietnam or was on an inland waterway. Therefore, service connection is not warranted on a presumptive basis. See 38 C.F.R. §§ 3.307(a) (6) (iii), 3.309(e). Hence, the only remaining issue is whether there is a nexus between the Veteran's service and current diabetes mellitus. See 38 C.F.R. § 3.303(d). In this case there is no competent evidence linking the Veteran's diabetes mellitus to service. The Board has considered the Veteran's lay contentions that this disability is related to unhealthy eating habits and stress in service; however, to the extent that these assertions are being offered to establish a nexus, such evidence must fail. The Board finds that determining the etiology of his diabetes mellitus is a complex medical matter beyond the ken of a layperson. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The question of etiology goes beyond a simple and immediately observable cause-and-effect relationship. As a lay person untrained in the field of endocrinology the appellant is not competent to render an opinion on etiology in this case. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for diabetes mellitus. Regarding the below the right knee amputation and residuals of left foot surgery, the Veteran has not alleged that these disabilities manifested in service or are otherwise proximately caused by his service. Rather, the evidence shows that these disabilities arose from diabetic wounds. As the Board is herein denying entitlement to service connection for diabetes mellitus, there is no legal basis of an award of either of these disabilities secondary to diabetes mellitus. Where, as here, service connection for the primary disability has been denied, the Veteran cannot establish entitlement to service connection, pursuant to 38 C.F.R. § 3.310(a), for a secondary condition. Any claim for such an award is without legal merit. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Hypertension The Veteran asserts that his hypertension was caused by unhealthy eating habits in service, or, alternatively, exposure to Agent Orange. VA regulations provide that the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2012). The Veteran's service treatment records are unremarkable for any complaints, treatment, or diagnosis of hypertension. At his April 1972 enlistment examination, his blood pressure was 108/74. At his October 1976 reelistment examination, his blood pressure was 104/68. During service, systolic blood pressure ranged from 94 to 130 and diastolic blood pressure ranged from 55 to 84. At his March 1983 separation examination, his blood pressure was 120/80 and his heart was noted to be normal. VA treatment records from the Shreveport VAMC dated from 1992 to 1995 do not show a diagnosis of hypertension. Systolic blood pressure ranged from 104 to 130 and diastolic blood pressure ranged from 49 to 86. Private treatment records from the AIDS Foundation/Hollywood HCC reflect that in May 2002, a low dose of Benazepril/Lotensin was added to the Veteran's diabetic regimen for nephroprotective effects. Records dated through November 2005 show continued treatment with Lotensin (an ACE inhibitor), but no diagnosis of hypertension. Subsequently, VA and private treatment records note hypertension in the Veteran's past medical history or as an ongoing chronic problem. In this case, the Veteran does not contend nor does the evidence show that hypertension manifested in or was noted in service or within one year of service. There have also been no allegations of continuity of symptomatology since service. The first indication of possible hypertension is in May 2002, when the Veteran was prescribed an ACE inhibitor. Although the initial prescription seems to have been to prevent kidney disease associated with diabetes, subsequent records note a diagnosis of hypertension. In any event, the first indication of possible hypertension was not until May 2002 - over 19 years after service. The passage of many years between discharge from active service and the medical documentation of a claimed disability is a factor that tends to weigh against a claim for service connection. Maxson, 230 F.3d at 1333. The present case involves not simply a lack of clinical evidence, but normal findings at separation and a time gap of almost two decades. The Board has also considered the Veteran's allegations that his hypertension might be related to exposure to Agent Orange in service; however, as explained above, the evidence does not indicate that the Veteran was exposed to herbicides during his military service. He does not allege nor does the evidence show that he set foot on Vietnam or served on board a vessel that operated in the inland waterways. The only remaining issue is whether there is evidence of a nexus between the Veteran's service and current hypertension. See 38 C.F.R. § 3.303(d). In this case there is no competent evidence linking the Veteran's hypertension to service. The Board has considered the Veteran's lay contentions that this disability is related to unhealthy eating habits and stress in service; however, to the extent that these assertions are being offered to establish a nexus, such evidence must fail. The Board finds that determining the etiology of his hypertension is a complex medical matter beyond the ken of a layperson. Jandreau, 492 F.3d at 1376-77 (Fed. Cir. 2007). The question of etiology goes beyond a simple and immediately observable cause-and-effect relationship. As a lay person untrained in the field of cardiology or internal medicine, the appellant is not competent to render an opinion on etiology in this case. For the foregoing reasons, the Board finds that the preponderance of the evidence is against the claim of entitlement to service connection for hypertension. ORDER Entitlement to service connection for diabetes mellitus, to include as due to herbicide exposure, is denied. Entitlement to service connection for below the right knee amputation as secondary o diabetes mellitus is denied. Entitlement to service connection residuals of left foot surgery as secondary to diabetes mellitus is denied. Entitlement to service connection for hypertension, to include as due to herbicide exposure, is denied. REMAND A VA mental health examination was conducted in November 2011 to determine the nature and etiology of the Veteran's claimed psychiatric disorder. The examiner diagnosed the Veteran with major depressive disorder and opined that it was less likely than not incurred in or aggravated by service. Notably, the examiner explained that the Veteran's depression occurred many years after service and was likely precipitated by his HIV diagnosis in 1991 and ongoing chronic health problems since then related to HIV. Subsequently, in a September 2012 rating decision, VA granted service connection for HIV-related illness. With regards to the Veteran's claimed psychiatric disorder, the Board notes that a disability may be found to be service connected on a secondary basis if the claimant demonstrates that the disability is either (1) proximately due to or the result of an already service-connected disease or injury, or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); 38 C.F.R. § 3.310 (2012). In this case, the November 2011 VA examiner suggested a relationship between the Veteran's HIV positive status and his depression; however, the examiner did not provide an opinion as to whether the service-connected HIV-related illness proximately caused or aggravated his depression. Therefore, a remand is necessary to obtain a supplemental opinion from the November 2011 VA examiner. As mentioned, in a September 2012 rating decision, VA granted service connection and assigned an initial noncompensable rating for HIV-related illness. Notice of the decision was sent in October 2012. In a November 2012 statement, the Veteran indicated that he wished to appeal the decision. He noted specifically that he disagreed with the conclusion that a 10 percent disability rating was not warranted, noting that he had suffered from a number of symptoms since 1992. The Board interprets this statement as a timely notice of disagreement with the initial rating assigned. The United States Court of Appeals for Veterans Claims has held that an unprocessed notice of disagreement should be remanded, not referred, to the RO for issuance of a statement of the case. Manlincon v. West, 12 Vet. App 238, 240-241 (1999). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC should obtain all outstanding records of VA evaluation and/or treatment of the Veteran. All records/responses received should be associated with the claims file. All attempts made should be documented in the claims folder. 2. After the above development is completed, the RO/AMC should arrange for the November 2011 VA examiner, or another equally qualified examiner, to prepare an addendum opinion. The Veteran's claims folder and all pertinent records from Virtual VA must be made available for the examiner's review prior to the entry of any opinion. A notation to the effect that this record review took place should be included in the examiner's report. The examiner is requested to render an opinion as to whether any diagnosed psychiatric disorder is proximately caused by or aggravated, i.e., worsened beyond its natural progression, by the Veteran's service-connected HIV-related illness. A response to both aspects of the secondary service connection claim must be provided. If aggravation is found, the examiner should attempt to objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred. If the examiner cannot offer an opinion that fact must be noted and an explanation provided why the opinion cannot be provided. If the opinion cannot be offered without further examination, then further examination must be provided. 3. The RO/AMC should issue the Veteran a statement of the case addressing the claim of entitlement to an initial compensable rating for HIV-related illness. He should also be advised of the need to file a substantive appeal if he wishes to complete his appeal of this issue. If an appeal is perfected, then the appeal should be returned to the Board for further appellate consideration, as appropriate. 4. After completing any additional development deemed necessary, readjudicate the claims remaining on appeal. If any benefit requested on appeal is not granted to the Veteran's satisfaction, the Veteran should be furnished a Supplemental Statement of the Case, which addresses all of the evidence obtained after the issuance of the Statement of the Case, and provided an opportunity to respond. The case should then be returned to the Board for further appellate consideration, if in order. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims must be afforded expeditious treatment. The law requires that all claims remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs