Citation Nr: 1318608 Decision Date: 06/07/13 Archive Date: 06/11/13 DOCKET NO. 10-28 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to service connection for periarticular sclerosis of the right hip. 2. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a skin condition, to include tinea versicolor and psoriasiform dermatitis, to include as due to herbicide exposure. 3. Entitlement to service connection for a skin condition, to include tinea versicolor and psoriasiform dermatitis, to include as due to herbicide exposure. 4. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a low back disability, to include lumbar myositis with Grade I retrolisthesis of L5 vertebral body. 5. Entitlement to service connection for a low back disability, to include lumbar myositis with Grade I retrolisthesis of L5 vertebral body. 6. Whether new and material evidence has been received to reopen the claim for service connection for vision loss, to include Pterygium. 7. Whether new and material evidence has been received to reopen the claim for service connection for blood in urine. 8. Whether new and material evidence has been received to reopen the claim for service connection for physical fatigue. 9. Whether new and material evidence has been received to reopen the claim for service connection for a mental disorder variously diagnosed as including posttraumatic stress disorder (PTSD), depression, and insomnia. 10. Entitlement to a total disability rating based on individual unemployability (TDIU). ATTORNEY FOR THE BOARD S. Finn, Counsel INTRODUCTION The Veteran served in the United States Army from May 1967 to May 1969, including service in Vietnam; and from January to July 1991 including service in the Persian Gulf. The Veteran had various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) in the Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2009 and October 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. Although the Veteran requested a hearing, he canceled his request in October 2010. (See June 2010 Form 9 and October 2010 Written Statement). The claim pertaining to a mental disorder has been recharacterized to reflect the reasonable expectations of the Veteran in pursuing his claim for service connection. Clemons v. Shinseki, 23 Vet.App. 1 (2009) (holding claimant seeking service connection for psychiatric disability who has no special medical expertise is not competent to provide diagnosis requiring application of medical expertise to facts, which include claimant's description of history and symptoms, and VA should construe claim for service connection based on reasonable expectations of non-expert claimant); see also Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009) (noting that regulation 38 C.F.R. § 4.14 clearly contemplates that several separately diagnosed disorders may have a single manifestation, but prohibits the VA from rating that manifestation for each disorder - i.e., separately diagnosed psychiatric conditions could be service connected, but may not be separately rated unless they resulted in different manifestations). The issues of entitlement to a skin disorder; a low back disorder; a mental disorder; and TDIU 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. An unappealed April 2000 rating decision denied the claims of service connection for a skin condition, vision loss, a low back disability, a mental disorder, blood in urine, and physical fatigue. 2. The evidence received since the April 2000 rating decision is new, relates to an unestablished fact necessary to substantiate the claims of service connection for skin, low back, and a mental disorder; and raises a reasonable possibility of substantiating these claims. 3. Evidence submitted since the April 2000 rating decision does not raise a reasonable possibility of substantiating the claims for blood in urine, physical fatigue, and vision loss. 4. The currently demonstrated periarticular sclerosis is not shown due to any event or incident from service nor diagnosed within one year after discharge from service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen the claims of service connection for skin, low back, and a mental disorder. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2012). 2. New and material evidence has not been received to reopen the claims of service connection for blood in urine, physical fatigue, and vision loss; and the claims are not reopened. 38 U.S.C.A. §§ 5107, 5108, 7105 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a) (2012). 3. The criteria to establish service connection for periarticular sclerosis are not met or approximated. 38 U.S.C.A. §§ 1110, 1117, 1131, 5103(a), 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board will discuss the relevant law which it is required to apply. This includes statutes published in Title 38, United States Code ("38 U.S.C.A."); regulations published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the Court of Appeals for the Federal Circuit (as noted by citations to "Fed. Cir.") and the Court of Appeals for Veterans Claims (as noted by citations to "Vet. App."). The Board is bound by statute to set forth specifically the issue under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction. The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts). Duties to Assist and Notify 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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 any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and 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. See 38 C.F.R. § 3.159(b)(1). Pre-adjudication letters dated in December 2006, March 2007, and August 2009 explained the evidence necessary to substantiate the claims. The VCAA letters indicated the types of information and evidence necessary to substantiate the claims, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records. The Veteran was also notified of how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). The March 2007 VCAA notice letter complies with the United States Court of Appeals for Veterans Claims (Court's) decision in Kent v. Nicholson, 20 Vet. App. 1 (2006), since it sufficiently explained the bases of the prior denial (i.e., the deficiencies in the evidence when the claim was previously considered). Moreover, any defect in VCAA notice or assistance as to new and material evidence for service connection for skin, low back, and nervous conditions is not prejudicial given that these claims are reopened. See 38 C.F.R. § 20.1102; Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). The claims file contains VA treatment records; private treatment records; private medical opinions, a VA medical opinion written in March 2011, and lay statements from the Veteran. Under the law, VA must provide a medical examination or obtain a medical opinion when such action is necessary to make a decision on the claim. By "necessary" is meant when the evidence of record, including consideration all information and lay or medical evidence including statements of the claimant (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; and (B) indicates that the disability or symptoms may be associated with the claimant's active military, naval, or air service; but (C) does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d)(2). The Veteran has not been afforded a VA examination for periarticular sclerosis. An examination of the Veteran and/or a medical nexus opinion is not warranted because the evidence indicate that the Veteran had an event, injury, or disease in service or within one year after, nor does it indicate that his claimed disability or symptoms may be associated with service. Further, a VA examination has not been afforded with his claims to reopen blood in urine, physical fatigue, and vision loss. The Veteran did not meet his burden of submitting new and material evidence to reopen those claims. The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide his claims. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of the issues has been obtained and the case is ready for appellate review. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). New and Material Evidence The RO denied the Veteran's claim of service connection for a skin condition, vision loss, low back disability, a mental disorder, blood in urine, and physical fatigue in a March 2000 rating decision. In April 2000, the Veteran was duly notified of this action and apprised of his appellate rights. He did not complete his appeal of the decision. 38 U.S.C.A. § 7105. If new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. 38 U.S.C.A. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). Under 38 C.F.R. § 3.156(a), evidence is considered "new" if it was not previously submitted to agency decision makers. "Material" evidence is evidence which, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. In Shade v. Shinseki, 24 Vet. App. 110 (2010), the United States Court of Appeals for Veterans Claims (Court) held that new evidence would raise a reasonable possibility of substantiating the claim if when considered with the old evidence it would at least trigger the Secretary's duty to assist by providing a medical opinion. For the purpose of determining whether a case should be reopened, the credibility of the evidence added to the record is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence of record at the time of the March 2000 rating decision consisted of an Agent Orange Protocol examination performed in September 1994; STRs dated from May 1967 to May 1969; National Guard Enlistment examinations dated in March 1973 and November 1976; National Guard periodic or quadrennial examinations dated in January 1982, October 1985, October 1989, redeployment examination dated in June 1991; and records from January 1991 to July 1991; VA examinations dated in January 1997, February 1997, and March 1997. Evidence added to the record since the March 2000 rating decision includes Social Security Administration (SSA) records; VA treatment records from VA Arecibo Outpatient Clinic dated from July 2006 to July 2009; VA treatment records from San Juan dated from November 2009 to October 2010; a March 2009 written statement from Dr. Nanette Ortiz; and VA examination dated in March 2011. With regards to his claimed mental disorder, skin, and low back conditions, the February 2012 written statement from the Dr. Juan Guillen indicates that the Veteran is diagnosed as having major depressive disorder related to service. A March 2009 written medical opinion from Dr. Nanette Ortiz stated that the skin and back conditions were related to service. These statements relate to unestablished facts necessary to substantiate the claims for service connection and raise a reasonable possibility of substantiating the claims. Since the evidence is both new and material, the claims of service connection for a mental disorder, a low back disorder, and a skin disorder are reopened. With regards to his blood in urine, physical fatigue, and vision loss, the February 2009 rating decision denied service connection on the basis that no new and material evidence was submitted to reopen the previously denied claims. Prior to the decision, the evidence included a VA Agent Orange Protocol examination performed on September 27, 1994; VA examinations dated in January 1997, February 1997, and March 1997; National Guard Enlistment examinations dated in March 1973 and November 1976; National Guard period or quadrennial examinations dated in January 1982; October 1982; October 1989; a redeployment examination dated in June 1991; a January 1998 lay statement; a September 1999 VA general medical examination; a September 1999 VA eye examination; a September 1999 spine examination; STRs for the period of May 1967 to May 1969; a skin examination dated in February 1997. Since the March 2000 rating decision the Veteran submitted Social Security disability records; lay statements; medical treatment records from VA Arecibo Outpatient Clinic dated from July 2006 to July 2009; private medical statement from Dr. Ortiz dated in March 2009; a December 2009 written lay statement; and outpatient treatment records from the VA medical center in San Juan from November 2009 to March 2010. None of the newly submitted evidence discusses these disabilities or shows that blood in urine, physical fatigue, and vision loss were incurred in or caused by service and fails to relate an unestablished fact necessary to substantiate the claims. The Veteran has not submitted any material evidence, but merely reasserted that these claimed disorders are related to service. His mere reassertions are not "new" evidence, and the claims are not reopened. See 38 C.F.R. § 3.156 (2012). Periarticular Sclerosis of the Right Hip The Veteran generally asserts that he has periarticular sclerosis of the right hip due to his active service. The preponderance of the evidence is against the claim and the appeal will be denied. The STRs are silent for complaints or findings referable to a right hip disability. (See May 1966 pre-induction examination; March 1969 Report of Medical Examination; March 1969 Report of Medical History; March 1973 Report of Medical History; November 1976 Report of Medical Examination; January 1982 Report of Medical Examination; January 1982 Report of Medical History; October 1985 Report of Medical History; October 1985 Report of Medical Examination; October 1989 Report of Medical Examination; October 1989 Report of Medical History; June 1991 Report of Medical Examination; and June 1991 Report of Medical History). The post-service treatment records reflect a diagnosis of periarticular sclerosis of the right hip in August 2006. However, this disability is not shown to have been present until many years after the Veteran's periods of active service. In particular, even construing the Veteran's claimed disorder as an arthritic disease, there is no evidence to suggest that he had the disorder during his active military service ending in July 1991 or within one year of his discharge. While the Veteran is competent to provide testimony or statements relating to symptoms or facts of events that he has observed and is within the realm of his personal knowledge, he is not competent to establish that which would require specialized knowledge or training, such as medical expertise. Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). The record does not show, nor does the Veteran assert, that he has specialized education, training, or experience that would qualify him to provide a medical opinion on this matter. The Veteran is competent to describe his symptomatology, but is not competent to attribute his symptoms to a diagnosis (i.e., a diagnosis of sclerosis requires specialized medical testing). The separation examination and STRs are highly probative because they were generated for determining and recording the Veteran's then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). There is no competent evidence to link the Veteran's claimed disorder to any incident of his active military service, and no competent evidence to suggest such a linkage. ORDER New and material evidence having been submitted, the claim of entitlement to service connection for a skin condition is reopened; to this extent only, the appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for a low back condition is reopened; to this extent only, the appeal is granted. New and material evidence having been submitted, the claim of entitlement to service connection for a mental disorder is reopened; to this extent only, the appeal is granted. New and material evidence has not been received which is sufficient to reopen a claim of entitlement to service connection for blood in urine. The claim remains denied. New and material evidence has not been received which is sufficient to reopen a claim of entitlement to service connection for physical fatigue. The claim remains denied. New and material evidence has not been received which is sufficient to reopen a claim of entitlement to service connection for vision loss. The claim remains denied. Entitlement to service connection for periarticular sclerosis of the right hip is denied. REMAND A Personnel Qualification Record reflects that the Veteran received a Vietnam Service Medal. He was stationed in Vietnam in October 1967 during the TET counteroffensive. He was also involved in the campaign for Liberation and Defense of Kuwait. His Senior Enlistment Evaluation Report reflects that he was a military police officer that, in part, led "MP patrol small squad, small detachment section or supervises PW compound or work project." A NCO (noncommissioned officer) evaluation report reflects that the Veteran was a team leader of a military police team deployed to the Saudi Arabia Theater of Operations in support of Operation Desert Storm with two primary missions: EPW (enemy prisoner of war) escort/guard and military customs operations in July 1991. He also had state National Guard military awards that consisted, in part, "PRNG-War-SVC-RBN." (See Personnel Record Section V-Miscellaneous). The Veteran asserts that he has a rash with continuous itching, scaling, and dry skin from Agent Orange exposure and a low back disability from inspecting vehicles while in the military. (See March 2009 private medical opinion Dr. Nanette Ortiz; February 2012 Written Statement from private physician Dr. Juan Guillen). He further stated that his back and skin conditions were aggravated by his emotional state. (See October 2010 VA treatment record and February 2012 Written Statement from private physician Dr. Juan Guillen). In March 2009 and February 2012, the Veteran submitted a written medical opinion that opined that his major depressive disorder, skin, and low back disabilities were related to service. The Veteran is currently diagnosed with major depressive disorder, degenerative changes of the lumbar spine, lumbar degenerative disc disease, lumbar central spinal canal stenosis, lumbar neural foraminal stenosis, Grade I L5/S1 retrolisthesis, and psoriasis vulgaris. (See November 2010 Magnetic Resonance Imaging and July 2006 VA treatment record). In a December 2009 written statement, the Veteran requested the VA to obtain VA emergency treatment records dated December 4, 2009 from "VAH-SJ" due to his back. The Veteran again requested the VA to obtain these records in October 2010 before sending the claims folder to the BVA. To ensure completeness of the record, the RO should obtain all outstanding VA treatment records and any private treatment records not of record, to include records from Dr. Hiram Ruiz-Arroyo, Dr. Rosario, Dr. Nanette Ortiz, and Dr. Juan Guillen. See Bell v. Derwinski, 2 Vet. App. 611 (1992). The RO/AMC must determine the dates of ACDUTRA and INACDUTRA. ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1) (2012). Active military, naval, or air service also includes any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty. 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a) (2012). INACDUTRA means, inter alia, duty other than full-time duty prescribed for Reserves or the National Guard of any state. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d) (2012). Only service department records can establish if and when a person was serving on active duty, ACDUTRA, or INACDUTRA. See Cahall v. Brown, 7 Vet. App. 232, 237 (1994). With regard to the issue of TDIU, this matter is inextricably intertwined with the Veteran's service connection claims, the RO should adjudicate the matters of entitlement to service connection in conjunction with the Veteran's appeal for TDIU. See Tyrues v. Shinseki, 23 Vet. App. 166, 178 (2009) (if matter on appeal is inextricably intertwined with an issue or claim still pending before VA, for reasons of judicial economy or on prudential grounds, review of merits of the claim or issue adjudicated will generally be deferred for further adjudication, as appropriate, with the other "inextricably intertwined" matters still being adjudicated below). Accordingly, the case is REMANDED for the following action: 1. Make arrangements to obtain a complete copy of the Veteran's treatment records from VA Hospital in San Juan (VAH-SJ). 2. The RO/AMC shall contact the Veteran and determine if he has any medical or other evidence pertaining to his psychiatric, low back, or skin disabilities that are not currently of record. Authorizations for the release of any records must be provided and all identified records must be obtained. All records and/or responses received shall be associated with the claims file. If any records sought are not obtained, the Veteran and his representative shall be notified of the records that were not obtained, explained the efforts taken to obtain them, and describe further action to be taken. 3. Contact the NPRC (National Personnel Records Center), the Army National Guard, and/or any other appropriate source to verify all of the Veteran's periods of ACDUTRA and INACDUTRA. A complete copy of his service personnel records should also be requested. If these records are not available, a negative reply is required. 4. Thereafter, schedule the Veteran for VA examinations to BE CONDUCTED BY QUALIFIED PHYSICIANS to determine the etiology of the skin, low back, and psychiatric conditions (other than PTSD). The following considerations will govern the examinations: The claims file and a copy of this remand will be made available to the examiners, who will acknowledge receipt and review of these materials in any report generated as a result of this remand. The examiners' attention is called to the following: * A May 1966 pre-induction examination was normal; * A March 1969 Report of Medical Examination was normal; * A March 1969 Report of Medical History was normal; * A March 1973 Report of Medical History was normal; * A November 1978 STR diagnosed the Veteran with a rash on both legs; * A November 1976 Report of Medical Examination was normal; * A January 1982 Report of Medical Examination was normal; * A January 1982 Report of Medical History was normal; * A October 1985 Report of Medical History was normal; * A October 1985 Report of Medical Examination was normal; * A October 1989 Report of Medical Examination was normal; * A October 1989 Report of Medical History was normal; * A June 1991 Report of Medical Examination; and June 1991 Report of Medical History were normal. IN CONJUNCTION WITH THE EXAMINATIONS, AND CONDUCTING ANY APPROPRIATE INTERVIEWS OF THE VETERAN AND CLINICAL TESTING, the examiners must review the evidence of record with attention to the service and post-service treatment records and provide the following opinions: * With regards to the psychiatric disability, does the Veteran currently have a psychiatric disorder (to include but not limited to a depressive disorder, an anxiety disorder, a sleep disorder/insomnia, PTSD) that occurred in or was aggravated by service? * With regards to the low back disability, does the Veteran currently have a low back disability that occurred in or was aggravated by service? In other words, did the low back disability have its clinical onset during his military service or within the initial post-service year? * With regard to the skin condition, does the Veteran currently have a skin disability that occurred in or was aggravated by service, to include Agent Orange exposure? The examiners are requested to provide an opinion, with a detailed explanation based on the evidence of record, as to whether the Veteran has any psychiatric disorder (to include but not limited to a depressive disorder, an anxiety disorder, PTSD), a skin disability, and a low back disability that were caused or aggravated by military service. Please comment on the private opinions of record by Dr. Nanette Ortiz and Dr. Juan Guillen. THE EXAMINERS ARE ADVISED that he or she must provide an explanation for any conclusions reached. The Courts have held that the Board must evaluate any medical opinions by review of multiple factors, including but not limited to whether the examiner: conducted a personal interview of the Veteran and review of the claims folder including electronic "Virtual VA" filings; conducted clinical testing and explained findings, and most importantly whether the examiner fully explained his or her findings and opinion. THE EXAMINERS ARE ALSO ADVISED THAT BY LAW, THE MERE STATEMENT THAT THE CLAIMS FOLDER WAS REVIEWED AND OR THAT THE EXAMINER HAS EXPERTISE IN THE SUBJECT MATTER IS NOT ADEQUATE TO FIND THAT THE EXAMINATION IS SUFFICIENT. 5. After the requested examinations have been completed, the reports should be reviewed to ensure that it is in complete compliance with the directives of this remand. If the reports are deficient in any manner, they should be returned to the examiner for corrective action. 6. Finally, readjudicate the claims in light of the additional evidence obtained. If the benefits sought are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them time to respond to it before returning the case to the Board for further appellate consideration. The Veteran 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). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs