Citation Nr: 1318184 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 07-24 481 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for residuals, right hand little finger injury. 2. Entitlement to service connection for residuals, upper lip injury. 3. Entitlement to service connection for headaches, to include as residuals of a concussion. 4. Entitlement to service connection for post traumatic stress disorder. 5. Entitlement to service connection for an acquired psychiatric disorder, to include depression. 6. Entitlement to service connection for sleep apnea. 7. Entitlement to service connection for a broken nose/nose pain. 8. Entitlement to service connection for respiratory difficulties/discomfort. REPRESENTATION Appellant represented by: Vietnam Veterans of America ATTORNEY FOR THE BOARD K. Fitch, Counsel INTRODUCTION The Veteran served on active duty from March 1999 to April 2003. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs Regional Office in Houston, Texas. In October 2005, the RO denied entitlement to service connection for status post umbilical hernia repair, residuals of injury, right hand little finger, residuals, upper lip injury, and headaches, residuals of concussion. The Veteran filed a notice of disagreement dated in September 2006 and the RO issued a statement of the case dated in July 2007. A substantive appeal was filed in July 2007. In February 2010, the RO granted entitlement to service connection for status post umbilical hernia repair. As such, this issue is no longer in appellate status. In August 2011, the RO denied entitlement to service connection for entitlement to service connection for PTSD, an acquired psychiatric disorder, to include depression, sleep apnea, a broken nose/nose pain, and respiratory difficulties/discomfort. The Veteran filed a statement dated in September 2011 indicating that he wished to reopen claim of service connection for PTSD and depression, and all of the nonservice-connected issues. The Board accepts this statement as a notice of disagreement with the RO's August 2011 determinations. The RO, however, has not issued to the Veteran a statement of the case with respect to these issues. Here, the Veteran has claimed entitlement to service connection for psychiatric disabilities, to include PTSD and depression. In this regard, the Board notes that the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record. Clemons v. Shinseki, 23 Vet. App. 1 (2009). As such, the Board has characterized the claims as shown above. The Board notes that, in addition to the Veteran's claims file, the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file as well as the Veteran's claims file and will proceed with review of the claims based upon all relevant evidence. The issues of entitlement to service connection for post traumatic stress disorder, an acquired psychiatric disorder, to include depression, sleep apnea, a broken nose/nose pain, and respiratory difficulties/discomfort 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. The medical evidence does not indicate that the Veteran has a current disability related to residuals of an injury, right hand little finger. 2. The April 2002 incident in which the Veteran was assaulted outside of a bar did not occur in the line of duty (LOD) during a period of active military service. 3. The record fails to establish that the Veteran incurred an injury to the upper lip as a result of his active duty service. 4. The record fails to establish that the Veteran incurred a headache disability as a result of his active duty service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for residuals of an injury, right hand little finger have not been met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.6, 3.159, 3.303, 3.307, 3.309 (2012). 2. The criteria for entitlement to service connection for residuals of an upper lip injury have not been met. 38 U.S.C.A. § 101, 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). 3. The criteria for entitlement to service connection for a headache disability have not been met. 38 U.S.C.A. § 101, 1101, 1110, 1112, 1113, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS I. VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). Proper notice from VA must inform the claimant 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 claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the 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. VCAA 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent letters dated in December 2004, December 2006, and October 2008 that provided information as to what evidence was required to substantiate the claims adjudicated herein and of the division of responsibilities between VA and a claimant in developing an appeal. The letters also explained what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. The Board acknowledges that, in the present case, complete notice was not issued prior to the adverse determination on appeal. However, fully compliant notice was later issued in letters dated in December 2006 and October 2008, and the claims were readjudicated thereafter. Accordingly, any timing deficiency has here been appropriately cured. Mayfield, 444 F.3d 1328 (Fed. Cir. 2006). Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service records, as well as post-service reports of VA and private treatment and examination. Moreover, his statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service connection analysis Applicable law provides that service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service connection may also be granted for certain chronic diseases, such as arthritis, when the disease is manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that a disease was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Hickson v. West, 12 Vet. App. 247 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995); 38 C.F.R. § 3.303(a). The existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997) (interpretation of 38 U.S.C.A. § 1110 and 38 U.S.C.A. § 1131 as requiring the existence of a present disorder for VA compensation purposes cannot be considered arbitrary and decision based on that interpretation must be affirmed); Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). That a condition or injury occurred in service alone is not enough. There must be disability resulting from that condition or injury. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); see also McLain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the requirement that a claimant have a current disability before service connection may be awarded for that disability is also satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if no disability is present at the time of the claims adjudication). Under § 3.303(b), an alternative method of establishing the second and/or third element is through a demonstration of continuity of symptomatology. See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (38 C.F.R. § 3.303(b) does not apply to any condition that has not been recognized as chronic under 38 C.F.R. § 3.309(a)). Continuity of symptomatology may establish service connection where a chronic disease under 38 C.F.R. § 3.309(a) shown as such in service or within the presumptive period, manifests at a later date. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required where the condition noted during service or the presumptive period is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. Id. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. Id. In this regard, the Board notes that lay persons may provide evidence of diagnosis and nexus under 38 U.S.C.A. § 1154(a). See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (vacating a decision that stated categorically that a valid medical opinion was required to establish nexus and that a lay person was not competent to provide testimony); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of the lay person is reporting a contemporaneous medical diagnosis); see also Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection). In addition, service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). Direct service connection may be granted only when a disability or cause of death was incurred or aggravated in the line of duty (LOD), and not the result of the Veteran's own willful misconduct or the result of his or her abuse of alcohol or drugs. 38 C.F.R. § 3.301. Any injury or disease that was the result of the Veteran's own willful misconduct or was a result of his or her abuse of alcohol or drugs is not considered in the LOD. 38 C.F.R. § 3.1(m). Willful misconduct involves deliberate or intentional wrongdoing with knowledge of or wanton and reckless disregard of its probable consequences. 38 C.F.R. § 3.1(n)(1). Willful misconduct will not be determinative unless it is the proximate cause of injury, disease or death. 38 C.F.R. § 3.1(n)(3). An injury or disease incurred during active service shall not be deemed to have been incurred in the LOD if such injury or disease was a result of the abuse of alcohol or drugs by the person on whose service benefits are claimed. Alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user. 38 C.F.R. § 3.301(d). The simple drinking of alcoholic beverage is not of itself willful misconduct, but the deliberate drinking of a known poisonous substance or under conditions which would raise a presumption to that effect will be considered willful misconduct. If, in the drinking of a beverage to enjoy its intoxicating effects, intoxication results proximately and immediately in disability, the disability will be considered the result of the person's willful misconduct. 38 C.F.R. § 3.301(c)(2). Although no compensation shall be paid if the disability for which service connection is sought is a result of a Veteran's own willful misconduct or abuse of alcohol or drugs, compensation is not precluded for an alcohol abuse disability secondary to a service-connected disability. Allen v. Principi, 237 F.3d 1368, 1382 (Fed. Cir. 2001); 38 U.S.C.A. § 105(a), 1110, 1131 (West 2002). Instead, the law precludes compensation for primary alcohol abuse disabilities and for secondary disabilities (such as cirrhosis of the liver) that result from primary alcohol abuse. Allen, 237 F.3d at 1376. Service connection and compensation may only be granted if a Veteran can establish that an alcohol disability is secondary to or is caused by a primary service-connected disorder. Allen, 237 F.3d at 1381. "[S]uch compensation would only result 'where there is clear medical evidence establishing that the alcohol . . . disability is indeed caused by a Veteran's primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing.'" Allen, 237 F.3d at 1382. It is the Board's responsibility to evaluate the entire record on appeal. 38 U.S.C.A. § 7104(a). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, reasonable doubt will be resolved in each such issue in favor of the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. An appellant need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the evidence must preponderate against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Alemany v. Brown, 9 Vet. App. 518 (1996). In this case, the Veteran seeks service connection for residuals of an injury to his right hand little finger, and service connection for residuals of an injury to his upper lip and a headache disability, the last two as secondary to an assault that took place in either March or April 2002 while he was in service. The service personnel records indicate that the Veteran and other servicemen were stationed in Germany in April 2002 and were out on the evening of April 14, 2002 at an establishment called the Green Goose (elsewhere in the report the date is noted as March 14, 2002- in either event both dates were during service). The Veteran was bumped by a sergeant who then walked out of the club. The Veteran followed the sergeant outside and apparently tried to punch him. Witnesses said that the Veteran was drunk and that the sergeant swung back and hit the Veteran in the head several times. An October 2010 VA Administrative Decision concluded that the Veteran was drunk at the time of the April 2002 incident and that he started an altercation in which his nose was fractured. Based on the evidence provided, VA determined that the injuries sustained were the result of the Veteran's own willful misconduct, e.g., fighting while being intoxicated, and had not been incurred in the LOD. In order to determine whether the Veteran has residuals of an injury to his right hand little finger, his upper lip, or a headache disability that are related to his military service, he was provided with two VA examinations dated in July 2009 and September 2011. The Veteran's outpatient treatment records were also reviewed. The July 2009 VA examiner indicated that the Veteran's claims file had been reviewed in connection with the examination and report. With respect to the finger injury, the Veteran reported jamming his right fifth finger in approximately 2003. He indicated that he has had intermittent stiffness, but no pain or locking. He was treated in service and released with a finger sprain diagnosis. After examination, the examiner diagnosed a previous sprain of the right fifth finger, with no clinical symptoms at that time. The examiner also noted that the Veteran had been seen since January 2005 for constant headaches. After examination, the Veteran was diagnosed with headaches. The examiner indicated that the Veteran suffered a fractured nose in 2003 and was first seen for headaches in January 2005 with scant follow-up for the same. The Veteran was noted to have had an MRI in 2008 that was normal. The examiner indicated that a chiropractic examination in 2005 revealed some vertical cervical spine misalignment but no other abnormalities. The examiner found that the headaches were not related to his fractured nose, otherwise the Veteran would have been seen on follow-up while in the military or after military service. The Veteran was also examined in connection with his claims in September 2011. He reported a history of headaches since 2002. The headaches would occur five times a week for approximately two hours and were described as sharp pain on neither side of his head. He also indicated that he had been diagnosed with a concussion and that the condition had lasted since 2002. The Veteran reported that he was struck in the head in service. With respect to his finger injury, the Veteran indicated that, while putting cement mines in order, a fellow soldier threw one that landed on his finger. The Veteran described decreased strength, locking and swelling in the affected finger. Finally, with respect to an upper lip injury, the Veteran indicated that this occurred as the result of an assault in service in April 2002. The Veteran indicated that he has a scar due to the injury that he tries to cover with a moustache. Objectively, right hand x-rays were normal. X-rays of the nasal bones revealed prior trauma, septal deviation with fractured nasal bones. After examination, the Veteran was diagnosed with (i) migraine headaches, status post concussion with associated nasal bone fracture and residuals headaches, (ii) status post right little finger strain with examination revealing no current findings or residuals with negative x-ray findings, and (iii) left upper lip laceration and forehead scar. In regard to whether the diagnosed disorders were related to the Veteran's military service, the examiner stated that, while it is at least as likely as not that the Veteran's current status post right fifth finger strain was incurred while in service in June 2001, the examination of the finger revealed no current findings or residuals. The examiner also found that the Veteran's diagnosed headaches disorder was at least as likely as not a residual of his concussion that was caused by the altercation that resulted in the Veteran's fractured nose. Based on the foregoing, the Board finds that entitlement to service connection for the Veteran's claimed conditions is not warranted in this case. Here, the Veteran has not been diagnosed with any current disability related to his prior right hand little finger injury during the appeal period. As such, the Veteran does not have a current disability that is subject to service connection. As noted above, the existence of a current disorder is the cornerstone of a claim for VA disability compensation. Degmetich v. Brown, 104 F. 3d 1328 (1997. In the absence of proof of a present disability, there can be no valid claim or the grant of the benefit. Rabideau v. Derwinski, 2 Vet. App. 141 (1992); McLain v. Nicholson, 21 Vet. App. 319, 321 (2007). Next, with respect to the upper lip and headache claims, the Veteran reported that disorders were the result of the April 2002 incident in service. In addition, the September 2001 VA examiner found that the headache disability was related to the April 2002 altercation in service. In this case, however, VA has determined that this altercation was not in the LOD and therefore the injuries sustained in the incident are not subject to service connection. The October 2010 VA Administrative Decision concluded that the Veteran was intoxicated at the time of the April 2002 incident and that he initiated the altercation. Based on the evidence provided, VA determined that the injuries sustained were the result of the Veteran's own willful misconduct. The Board notes that the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches. The credibility and weight to be attached to these opinions is within the province of the Board. Guerrieri v. Brown, 4 Vet. App. 467 (1993). The Board must account for evidence it finds persuasive or unpersuasive, and provide reasons for rejecting material evidence favorable to the claim. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). In determining the weight assigned to this evidence, the Board also looks at factors such as the health care provider's knowledge and skill in analyzing the medical data. Guerrieri v. Brown, 4 Vet. App. 467 (1993); Black v. Brown, 10 Vet. App. 279 (1997). In this case, the Board finds that the opinions of the VA examiners in this case to be most persuasive, based as they were on examinations of the Veteran and his claims file. In addition, the Board notes that the Veteran has contended on his own behalf that his claimed disabilities are related to his service. Lay witnesses are competent to provide testimony or statements relating to symptoms or facts that the lay witness observed and is within the realm of his or her personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007) (noting that lay testimony may be competent to identify a particular medical condition). Lay evidence may also be competent to establish medical etiology or nexus. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). However, while VA must consider lay evidence, it may give it whatever weight it concludes the evidence is entitled to, and a mere conclusory generalized lay statement that service event or illness caused the claimant's current condition is insufficient to require VA to provide an examination. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010); see also See Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011) (Lance, J. concurring) ("the Board should avoid overbroad statements about the competence of laypersons and should carefully distinguish its treatment of lay testimony of symptoms and its analysis of lay competence on issues of diagnosis or causation"). Although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds that the diagnosis and etiology of the Veteran's disorders are complex medical questions, beyond the competency of a layperson. The Board further finds that the question regarding the relationship between such disabilities and military service to be complex in nature. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Therefore, as the Veteran has only provided his own conclusory statements regarding diagnosis and causation, the Board finds that the Veteran's statements to be of little probative value as he is not competent to opine on such complex medical questions. In summary, the Board concludes that the preponderance of the evidence is against the Veteran's claims. The Board may not base a decision on its own unsubstantiated medical conclusions but, rather, may reach a medical conclusion only on the basis of independent medical evidence in the record. Hensley v. Brown, 5 Vet. App. 155 (1993). Because the preponderance of the evidence is against the claims, the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for residuals of injury, right hand little finger, is denied. Service connection for residuals, upper lip injury, is denied. Service connection for headaches is denied. REMAND Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's remaining claims so that he is afforded every possible consideration. VA has a duty to make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A(a); 38 C.F.R. § 3.159(c), (d). With respect to the Veteran's claims of entitlement to service connection for post traumatic stress disorder, an acquired psychiatric disorder, to include depression, sleep apnea, a broken nose/nose pain, and respiratory difficulties/discomfort, the Board notes that the RO denied these claims in an August 2011 rating decision. The Veteran then filed a statement dated in September 2011 indicating that he wished to reopen claim for PTSD and depression, and all of the nonservice-connected issues. The Board has accepted this statement as a notice of disagreement with the RO's determinations with respect to the claims denied in August 2011. The RO, however, has not issued to the Veteran a statement of the case with respect to these issues. Inasmuch as the RO has not furnished the appellant a statement of the case that addresses these issues, a remand is warranted. 38 C.F.R. § 20.201, 20.300-301; see Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Grantham v. Brown, 111 F.3d 1156 (Fed. Cir. 1997). Accordingly, the case is REMANDED for the following action: The RO should furnish the Veteran a statement of the case regarding the issues of entitlement to service connection for post traumatic stress disorder, an acquired psychiatric disorder, to include depression, sleep apnea, a broken nose/nose pain, and respiratory difficulties/discomfort, to include notification of the need, and the appropriate time period, in which to file a substantive appeal to perfect the issue, in accordance with 38 C.F.R. § 19.30. 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). ______________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs