Citation Nr: 1317627 Decision Date: 05/30/13 Archive Date: 06/06/13 DOCKET NO. 12-22 822 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Providence, Rhode Island THE ISSUES 1. Entitlement to a disability evaluation in excess of 40 percent for degenerative disc disease, L5-S1. 2. Entitlement to a total rating based upon individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from January 1942 to November 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction of the Veteran's claims file was subsequently transferred to the VA RO in Providence, Rhode Island. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. The Veteran testified at a hearing in May 2013 before the undersigned. A copy of the transcript has been associated with the claims file. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). The issue of entitlement to a TDIU 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. FINDING OF FACT The evidence of record shows that the Veteran's symptoms from his low back disability more closely approximate unfavorable ankylosis of the thoracolumbar spine. CONCLUSION OF LAW The criteria for a 50 percent disability evaluation for a low back disability have been approximated. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5243 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (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 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (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, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In a claim for an increased evaluation, the VCAA requirement is generic notice: the type of evidence needed to substantiate the claim, which consists of evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). VA has satisfied its duty to notify by issuing a pre-adjudication notice letter in February 2011. This letter advised the Veteran of what evidence was required to substantiate his increased evaluation claim, and of his and VA's respective duties for obtaining evidence. It provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and the report of a VA examinations March 2011. The examination was adequate because it was based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The Veteran testified at a hearing in May 2013. The U. S. Court of Appeals for Veterans Claims held that at a hearing on appeal, a Veterans Law Judge (VLJ) has a duty to explain fully the issues and a duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). In the present case, the issues to be discussed during the hearing were set forth although evidence to submit to substantiate the claim was not specifically suggested. However, the Board finds that the Veteran was not prejudiced by this omission. As noted above, the Veteran received a letter in February 2011 that substantially explained what was required to substantiate his increased evaluation claim and there is no indication that he does not understand what is necessary to substantiate his claim. Questions were asked at the hearing to elicit testimony concerning substantiation of the Veteran's claim. Additionally, the record does not indicate that there is any relevant overlooked evidence that the Veteran could submit that would aid in substantiating his claims. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the Veteran's claim. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Increased Evaluation Claim Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2011). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Where an increase in an existing disability rating based upon established entitlement to compensation is at issue, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Veteran submitted his claim for an increased evaluation for a low back disability in February 2011. "The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The Veteran's low back disability is currently evaluated as 40 percent disabling under Diagnostic Code 5299-5292. 38 C.F.R. §§ 4.20, 4.27, 4.71a (2002). His disability is evaluated using older rating criteria. The older rating criteria set forth in Diagnostic Code 5292 for limited motion of the spine, the criteria set forth in Diagnostic Code 5293 for IVDS, and the criteria set forth in Diagnostic Code 5295 for lumbosacral strain provided for a maximum rating of 40 percent. 38 C.F.R. § 4.71a (2002). His disability evaluation was increased to 40 percent in a July 2000 rating decision. Since that time, VA promulgated new regulations for the evaluation of disabilities of the spine twice, effective September 23, 2002 and September 26, 2003. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002), 68 Fed. Reg. 51,454 (Aug. 27, 2003)(codified at 38 C.F.R. part 4). If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C.A. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. However, because the Veteran's claim for increase was filed in 2011, only the revised and current criteria for rating injuries and diseases of the spine are applicable. Notable, the amendments to the Rating Schedule renumbered the diagnostic codes and created a General Rating Formula for Rating Diseases and Injuries of the Spine, based largely on limitation or loss of motion, as well as other symptoms. The amendments also allow for intervertebral disc syndrome (IVDS), Diagnostic Code 5243, to be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The Veteran has been diagnosed with IVDS. Under current regulations, intervertebral disc syndrome can be evaluated under the General Rating Formula for Diseases and Injuries of the Spine, or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The new criteria apply 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. IVDS (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. IVDS warrants a 40 percent evaluation when there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a (2012). For purposes of assigning evaluations under Code 5243, an "incapacitating episode" is 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 (2007). There is no evidence of record indicating the veteran has ever had an incapacitating episode due to his low back disability. Therefore, the Formula for Rating Intervertebral Disc Syndrome does not apply. Under the General Rating Formula for Diseases and Injuries of the Spine a 40 percent evaluation is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted when there is unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a (2012). When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In March 2011, the Veteran underwent a VA examination. He reported an increase in back pain and weekly flare ups caused by prolonged sitting or laying. He stated that the flare ups limited his ability to stand, walk, climb stairs, tie his shoes, and do housework. He reported a history of paresthesias, falling, unsteadiness, fatigue, decreased range of motion, stiffness, weakness, and constant back pain that radiated to his lower extremities. He denied spasm and bowel and bladder problems. The examiner found that the Veteran did not have incapacitating episodes. He used a walker and stated that he was unable to walk more than a few yards at a time. Upon examination, the examiner noted that the Veteran's posture was flexed forward in a "fixed position." He had guarding, painful motion, tenderness, and weakness on both sides. He did not have muscle spasm. His forward flexion was 0 to 26 degrees, his extension was 0 to -4 degrees, his lateral flexion was 0 to 6 degrees bilaterally, and his lateral rotation was 0 to 8 degrees bilaterally. He had additional limitation of motion due to pain following repetitive motion. His forward flexion reduced to 20 degrees, his extension reduced to -6 degrees, his lateral flexion reduced to 4 degrees bilaterally, and his lateral rotation decreased to 8 degrees bilaterally. His reflexes were all normal except for bilateral knee and ankle jerks, which were hypoactive. An x-ray showed progressive degenerative disc disease (DDD) and facet disease with increasing L4-5 grade 2 subluxation. The examiner concluded that the Veteran's disability had a significant impact on his ability to stand, walk, bend, reach, lift, and carry. Further, he had decreased strength in his lower extremities and pain. The disability interfered with the Veteran's ability to perform activities of daily living. The report of the Veteran's March 2011 VA examination provides probative evidence in favor of his claim. In a January 2012 statement, the Veteran asserted that his back disability prevented him from hunting, fishing, and "everything else" he used to do. He stated that he was unable to step down from a street curb unaided. At a February 2012 VA treatment appointment, the Veteran stated that his back pain was constantly an 8 out of 10 on the pain scale. He stated that the pain radiated to his legs. He denied bowel and bladder problems. At his May 2013 hearing, the Veteran testified that he was required to wear a back brace with steel rods all day and that it caused great discomfort. He stated that at times, he was unable to move his back. The Veteran stated he was in constant pain and could not sit or stand for long. He used a walker and could only take two steps unaided. He used assistive devices such as a shower chair and a three foot long shoe horn to assist in his activities of daily living. The Veteran is competent to discuss observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds his testimony credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The Veteran's hearing testimony and other lay statements provide probative evidence in support of his claim. The VA examiner found that the Veteran's lumbar spine was flexed forward in a "fixed" position and his ranges of motion were significantly decreased. Taking into account his additional limitation of motion due to pain, the Board observes that he has lost nearly all of his lateral flexion and rotation, bilaterally, as well as nearly all of his extension. Resolving all reasonable doubt in favor of the Veteran and taking into account his severe functional loss, his disability picture more closely approximates unfavorable ankylosis of the thoracolumbar spine. 38 C.F.R. §§ 4.40, 4.45, 4.71a. A 50 percent evaluation is granted. None of the evidence of record shows that the Veteran has unfavorable ankylosis of the entire spine. Therefore, a 100 percent evaluation is not warranted. Id. The Veteran is assigned separate 10 percent evaluations for neurological impairments of the lower extremities. See March 2008 Board decision; March 2008 rating decision. They are currently evaluated under Diagnostic Code 8520, which provides that mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling and moderate incomplete paralysis is rated as 20 percent disabling. 38 C.F.R. § 4.124a (2012). The Veteran did not appeal the effective date or disability evaluations assigned, and they are not currently on appeal. Further, there is no evidence of additional associated neurological impairment such as bladder or bowel impairment such that other additional ratings are appropriate. In summary, the Board finds that a 50 percent disability evaluation is warranted for the Veteran's low back disability. 38 C.F.R. § 4.71a (2012). There is no evidentiary basis upon which to assign a rating in excess of 50 percent and since there is no basis for assigning an increased rating, there is no basis for assigning a staged rating. Hart, 21 Vet. App. at 505. The Board has considered whether referral for an extraschedular rating is appropriate under the provisions of 38 C.F.R. § 3.321(b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for the disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extraschedular consideration is required. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). As described above, the manifestations of the Veteran's low back disability such as pain and severely limited ranges of motion are contemplated by the schedular criteria set forth in the General Rating Formula for Disease and Injuries of the Spine; no examiner has reported an exceptional disability picture with symptoms not represented in the rating schedule. In sum, there is no indication that the average industrial impairment from the disability would be in excess of that contemplated by the assigned rating. Accordingly, the Board has determined that referral of this case for extraschedular consideration is not in order. ORDER A 50 percent disability evaluation for service-connected degenerative disc disease, L5-S1, is granted, subject to the laws and regulations governing the payment of monetary benefits. REMAND A TDIU is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). A TDIU is granted where a Veteran's service connected disabilities are rated less than total, but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). Where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a TDIU. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Here, the Veteran has claimed entitlement to an increased rating for his service-connected low back disability and has stated that he is unable to work because of this disability. Therefore, an informal claim for TDIU has been raised. To establish entitlement to a TDIU, there must be an impairment so severe that it is impossible to follow a substantially gainful occupation. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither non-service-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). Substantially gainful employment is that which is ordinarily followed by the nondisabled to earn a livelihood, with earnings common to the particular occupation in the community where the Veteran resides. Moore (Robert) v. Derwinski, 1 Vet. App. 356 (1991). This suggests a living wage. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. Moore, 1 Vet. App. at 358. The question is whether the Veteran is capable of performing the physical and mental acts required by employment and not whether the Veteran is, in fact, employed. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). A TDIU requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other Veteran rated at the same level. Id., (citing 38 C.F.R. §§ 4.1 , 4.15). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. VA regulations establish objective and subjective standards for an award of total rating based on unemployability. When the Veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may nonetheless be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). For the purpose of determining whether there is a single service-connected disability rated as 60 percent, disabilities of a common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). Even when considering the assignment of a 50 percent evaluation for the Veteran's low back disability along with the two separate 10 percent evaluations for his associated bilateral neurological impairment of the lower extremities as disabilities of a common etiology, his combined disability evaluation is not 70 percent or more. The threshold set forth in 38 C.F.R. § 4.16(a) is not met. All cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards of 38 C.F.R. § 4.16(a), are to be referred to the Under Secretary for Benefits or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation. 38 C.F.R. § 4.16(b). The Board must therefore determine whether the Veteran is unemployable due to his service-connected disabilities. The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). An extraschedular rating is requested by the RO and approved by the Under Secretary Benefits or by the Director of Compensation and Pension Services. At his May 2013 hearing, the Veteran competently and credibly testified that he had to retire at age 61 because of his back disability. He worked as a machinist and his job involved long periods of standing. Because there is evidence that the Veteran may be unemployable due to his service-connected back disability, a referral to consider an extraschedular evaluation is warranted. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). Expedited handling is requested.) 1. After undertaking any additional development deemed necessary including the scheduling of an examination, adjudicate the Veteran's claim for a TDIU. Because the Veteran's combined disability evaluation does not meet the regulatory criteria for consideration of a schedular TDIU, readjudication MUST include referral of the appellant's TDIU claim to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. §4.16(b) (2012). 2. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues on appeal. If the benefit sought on appeal remains denied, in whole or in part, the Veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise 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). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs