Citation Nr: 1321359 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 09-48 203 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. 3. Entitlement to service connection for a skin rash, bilateral hands, with tumors of the right hand. 4. Entitlement to an initial disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD). 5. Entitlement to an initial disability rating in excess of 60 percent for residuals of prostate cancer. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had service from March 1970 to November 1971. This appeal comes before the Board of Veterans' Appeals (Board) on appeal from December 2007 and December 2010 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The December 2007 rating decision denied the Veteran's claims of entitlement to service connection for bilateral hearing loss, tinnitus, and a skin rash of the hands with tumors of the right hand. The rating decision also granted the Veteran's claim for service connection of residuals of prostate cancer, and assigned a disability rating of 100 percent effective November 15, 2006, with a 40 percent disability evaluation from May 1, 2007. The December 2010 rating decision granted the Veteran's claim for service connection of PTSD, and assigned a 10 percent disability evaluation, effective August 17, 2009. The Board notes that, in a September 2009 rating decision, the RO increased the schedular evaluation for the Veteran's residuals of prostate cancer to 60 percent disabling, effective May 1, 2007. And, in a June 2012 rating decision, the RO increased the schedular evaluation for the Veteran's PTSD to 70 percent disabling, effective August 17, 2009. As the Veteran has not indicated that he is satisfied with the ratings assigned, these claims remain on appeal. See AB v. Brown, 6 Vet. App. 35 (1993). The Virtual VA claims file has been reviewed. The Board notes that, pursuant to his request in his February 2011 substantive appeal, the Veteran requested a hearing before the Board; however, in September 2011, the Veteran withdrew the Board hearing request. As such, the Board will proceed with its review on the present record. See 38 C.F.R. § 20.704(d), (e) (2012). The issues of entitlement to increased disability ratings for PTSD and residuals of prostate cancer 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. Bilateral hearing loss disability is related to in-service noise exposure. 2. Tinnitus is related to in-service noise exposure. 3. The Veteran does not have a disability manifested by a skin rash, bilateral hands, with tumors of the right hand. CONCLUSIONS OF LAW 1. Bilateral hearing loss disability was incurred in wartime service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.385 (2012). 2. Tinnitus was incurred in wartime service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2012). 3. A disability manifested by a skin rash, bilateral hands, with tumors of the right hand was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In this case, the agency of original jurisdiction (AOJ) issued notice letters, dated in March 2007 and January 2010, to the Veteran. These letters explained the evidence necessary to substantiate the Veteran's claims for service connection, as well as the legal criteria for entitlement to such benefits. The letters also informed him of his and VA's respective duties for obtaining evidence. The AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. As such, there was no defect with respect to timing of the VCAA notice. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). VA also has a duty to assist a veteran with the development of facts pertinent to the appeal. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). This duty includes the obtaining of "relevant" records in the custody of a Federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in Federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1). VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim. 38 C.F.R. § 3.159(c)(4). The claims file contains the Veteran's available service treatment records, reports of private and VA post-service treatment and the Veteran's own statements in support of his claims. In connection with the current appeal, the Veteran was afforded VA examinations responsive to the claims for service connection of bilateral hearing loss, tinnitus, and a skin disorder. McClendon v. Nicholson, 20 Vet. App. 79 (2006). The opinions were conducted by medical professionals, following thorough examination of the Veteran, solicitation of history, and review of the claims file. The Board finds that the opinions are adequate. Additionally, the Veteran has not alleged that any examination is inadequate to decide the current claims, so it is presumed to have been adequate. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of the opinion). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Board has reviewed the Veteran's statements and medical evidence of record and concludes that there is no outstanding evidence with respect to the Veteran's claims. For these reasons, the Board finds that the VCAA duties to notify and assist have been met. Legal Criteria for Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2012). To establish a right to compensation for a present disability, a Veteran must show: (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-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Coburn v. Nicholson, 19 Vet. App. 427, 431 (2006). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 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 cardiovascular-renal disease (including hypertension) and organic diseases of the nervous system (including sensorineural hearing loss) are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. VA laws and regulations provide that, if a Veteran was exposed to Agent Orange during service, certain listed diseases are presumptively service-connected. 38 U.S.C.A. § 1116(a)(1); 38 C.F.R. § 3.309(e). A Veteran who "served in the Republic of Vietnam" between January 9, 1962 and May 7, 1975 is presumed to have been exposed during such service to Agent Orange. 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). The listed diseases are: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, Type II diabetes mellitus (adult-onset diabetes), Hodgkin's disease, ischemic heart disease, chronic B-cell leukemias, multiple myeloma, non-Hodgkin's lymphoma, Parkinson's disease, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, respiratory cancers (cancer of the lung, bronchus, larynx or trachea); and soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi's sarcoma, or mesothelioma). In addition, the Secretary of VA has determined that there is no positive association between exposure to herbicides and any other condition for which the Secretary has not specifically determined that a presumption of service connection is warranted. See Notice, 59 Fed. Reg. 341-46 (1994); Notice, 61 Fed. Reg. 41, 442-49 (1996); Notice, 72 Fed. Reg. 32,395-32,407 (Jun. 12, 2007); Notice, 74 Fed. Reg. 21,258-21,260 (May 7, 2009); Notice, 75 Fed. Reg. 32540 (June 8, 2010). The Veteran does not contend, and the evidence does not reflect, that he has been diagnosed as having any of the diseases presumed service connected in veterans exposed to Agent Orange. He is therefore not entitled to service connection on a presumptive basis due to his exposure to Agent Orange. Significantly, however, notwithstanding the foregoing presumption provisions, VA statutes, regulations, and case law reflect that the laws and regulations creating presumptive service connection are liberalizing; in other words, the fact that a Veteran cannot establish entitlement to service connection on a presumptive basis does not preclude him from establishing entitlement on a direct incurrence or other basis. See 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.304(d) (the availability of service connection on a presumptive basis does not preclude consideration of service connection on a direct basis); Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994) (Radiation Compensation Act does not preclude a veteran from establishing service connection with proof of actual direct causation). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. For chronic diseases for VA compensation purposes, if chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. Service connection is also warranted for disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Analysis for Service Connection The Board notes initially that, the Veteran served during a period of war. Likewise, the Veteran's DD Form 214 reflects that his military occupational specialty was heating and ventilation and that he had service in Vietnam with the 36th Engineering Battalion. Service personnel records indicate that he had service in Vietnam from October 1970 to October 1971. As such, the evidence does not suggest, and the Veteran does not contend, that he engaged in combat with the enemy; therefore, the combat provisions of 38 U.S.C.A. § 1154 (West 2002) are not applicable. However, he was granted service connection for PTSD on the basis of "fear of hostile military activity" related to exposure to incoming rounds and small arms fire while traveling on convoys as a guard. Bilateral Hearing Loss and Tinnitus Service treatment records indicate that the Veteran did not make any complaints or seek treatment related to his ears and hearing. At separation, audiometric testing showed normal hearing. A November 2006 audiological evaluation indicates that the Veteran had pure tone threshold averages of 40 for the right ear and 32 for the left ear, with fair speech discrimination and intermittent tinnitus bilaterally. At his December 2006 VA Agent Orange examination, the Veteran complained of hearing loss and tinnitus. On the October 2009 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 20 70 75 80 LEFT 40 59 75 75 85 Maryland CNC speech recognition scores were 74 percent in the right ear and 46 percent in the left ear. The Veteran testified before a Decision Review Officer (DRO) of the RO in January 2010. At that time, he testified as to a history of noise exposure during service. He testified that, although his MOS was ventilation specialist, he worked as a guard and with heavy equipment during his Vietnam service; he stated that much of the noise exposure was due to rockets and trucks. He also testified that he first noticed a problem with his hearing and with tinnitus around age 30, and that he utilized hearing protection during his post-service work as a sheet metal worker. At the October 2009 VA examination, the Veteran reported in-service noise exposure due to his work as an air conditioning specialist, as well as guard duties, riding on a bulldozer as protection, and acting as a gunner in convoys; noise exposure included incoming attacks, mortar rounds, machine gun fire, and rifle fire. He also reported that he worked as a sheet metal worker for 35 years following service, but that he wore hearing protection. After examining the Veteran and reviewing the claims file, the audiology examiner opined that the Veteran experiences bilateral sensorineural hearing loss. The examiner opined that the Veteran's hearing loss was not the result of in-service noise exposure as the separation audiogram was normal. The VA examiner also opined that the Veteran's tinnitus was not the result of noise exposure in service, as it did not have its onset until several years after service. The VA examiner opined that contributing factors to the Veteran's sensorineural hearing loss were occupational noise exposure and aging. The Board acknowledges the Veteran's statements alleging in-service noise exposure, but notes that he did not complain of decreased hearing in service or for many years after service. See 38 C.F.R. § 3.303(a). Regardless, the Board has also considered the Veteran's noise exposure and his assertions that he did not have sufficient hearing protection until his work post-service. Moreover the results of his October 2009 VA audiological examination confirm that he has sufficient hearing loss in both of his ears to meet the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered an actual "disability." The reported audiometric findings at the VA examination revealed the Veteran had auditory thresholds of 40 decibels at 500 Hertz in the left ear and 70 decibels at 4000 Hertz in the right ear. See Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000) (a Veteran seeking disability benefits must establish the existence of a disability and a connection between such Veteran's service and the disability). As previously mentioned, the Veteran's separation examination was suggestive of normal hearing bilaterally. The Board also acknowledges that the October 2009 VA audiological examiner did not find that the Veteran's bilateral hearing loss could be attributed to his noise exposure during the Veteran's active military service. However, this is not determinative as to whether his current bilateral hearing loss is etiologically related to his military service and does not preclude service connection in this case. The Board points out that the VA examiner relied upon the assumption that the Veteran had occupational noise exposure after service and that such occupational noise exposure contributed to his bilateral hearing loss, despite the Veteran's assertions of having hearing protection during his employment. Nevertheless, in finding that post-service occupational exposure was a contributing factor in the Veteran's hearing loss, the VA audiological examiner essentially conceded that the Veteran had noise exposure during service. And, although the Veteran is not a combat Veteran, he is service-connected for PTSD on the basis of exposure to hostile military activity. Hensley v. Brown, 5 Vet. App. 155, 159 (1993) ("[§ 3.385] operates to establish when a measured hearing loss is . . a 'disability' for which compensation may be paid, provided that the requirements for service connection are otherwise met . . ."). Indeed, the opinion rendered in the October 2009 VA examination report was far from being clear or definitive as to etiology. The VA audiological examiner noted that the Veteran had noise exposure during his period of service, as well as occupational noise exposure after his service; however, in opining that the Veteran's bilateral hearing loss was not due to his military noise exposure, the examiner did not provide a rationale other than the number of years between service and the confirmation via audiological testing that the Veteran had bilateral hearing loss. Likewise, the VA examiner stated that occupational noise exposure and age contributed to the Veteran's current bilateral hearing loss, not caused his current bilateral hearing loss. Additionally, the Veteran consistently and credibly contended that the in-service noise exposure caused his hearing loss; similarly, sensorineural hearing loss is associated with noise exposure. See Layno v. Brown, 6 Vet. App. 465 (1994). The competent and credible evidence of record therefore supports the Veteran's claim. The Board finds that the medical evidence of record supports the Veteran's contention that his tinnitus is related causally to his service. The Board finds that exposure to acoustic trauma in service is consistent with the circumstances of his service. Moreover, although tinnitus was not shown to have been diagnosed during service or within several years thereafter, bilateral tinnitus was diagnosed at the October 2009 VA audiology examination. The VA examiner found that the Veteran's tinnitus had onset several years after service, and thus could not be related to noise exposure in service, but did not find that it was not related to his bilateral hearing loss. Therefore, the evidence of record is at least in equipoise, and with resolution of doubt in the Veteran's favor, the Board finds that service connection for tinnitus is also warranted. Skin Rash of the Bilateral Hands, with Tremors of the Right Hand Service treatment records indicate that the Veteran was treated in September 1971 for a rash of the hands and forearms. He reported that he was in Vietnam for a year and had no history of rashes. He denied an allergy, but complained of itching. The diagnosis was initially deferred based on unknown etiology, but the examining provider noted that it appeared to be contact dermatitis. Treatment with hydrocortisone was recommended. The Veteran made no related complaints at separation and his physical examination of the skin was normal except for scars. In June 1990, the Veteran was treated for swelling of right palm and little finger by R. D. I., M.D. X-rays showed degenerative changes and soft tissue swelling, and a family history of gout was noted. The Veteran underwent surgical excision and the pathologist issued diagnoses of localized tenosynovial giant cell tumors of the right palm and little finger. At the Veteran's December 2006 VA Agent Orange evaluation, the Veteran reported the history of tumor excision in 1990, but no other findings were noted regarding his hands. Examination of his skin was normal. At the Veteran's January 2010 DRO hearing, the Veteran testified that he had a rash of the hands during service, for which he was treated with a shot. He also testified that he used a cream from home for treatment as well, and that he did not have a rash or blisters at separation from service. He stated that he did not seek treatment for his hands again until he just prior to having the tumors removed in 1990. Post-service VA treatment records do not show any complaints, treatment, or diagnoses related to the Veteran's skin. Additionally, private treatment records from P. A. M., M.D., dated August 2008 through January 2009, show that the Veteran's skin was clear and without rashes in January 2009, but that he was treated for a rash, with itching, swelling, and hives, in August 2008. According to the August 2008 treatment note, the Veteran has an allergy to shellfish, which began when he was 8 years old. The Veteran was provided with a VA general medical examination in October 2010. According to the report, the Veteran did not report any complaints or symptoms related to his skin. Physical examination did not show any scars, lesions, or deformities. With disability compensation claims, VA adjudicators are directed to assess both medical and lay evidence. The weight of the evidence reflects that even though the Veteran had skin symptoms in service, the same symptomatology did not persist after service. In addition, there is no nexus between the Veteran's in-service symptomatology and the post-service symptomatology. On the November 1971 separation examination, examination of the skin was normal, and the Veteran indicated on the contemporaneous report of medical history that he did not have and had never had skin disease. The Board finds these more contemporaneous statements to health care providers to be more credible and probative than those made many years later during the course of an appeal for compensation benefits. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (interest may affect the credibility of testimony). To the extent that the Veteran's statements indicate that his skin symptomatology persisted after service, and that his 1990 tumors of the right hand are related to his rash in service, these statements are therefore not credible. The Board notes that the Veteran's statement at separation that he did not have and had never had skin disease is consistent with the service treatment records showing treatment for a rash on one occasion; this rash was determined to be due to contact dermatitis, and not a skin disease. Significantly, the Board observes that the Veteran did not assert that his 1990 treatment for tumors of the right hand was related to his rash in service until 2006, when he filed his claim for service connection. See Pond v. West, 12 Vet. App. 341 (1999) (although Board must take into consideration the appellant's statements, it may consider whether self-interest may be a factor in making such statements). See also Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000) (service incurrence may be rebutted by the absence of medical treatment for the claimed condition for many years after service). In particular, the Board notes that the Veteran did not relate a history of treatment for a rash during service to any of his treating providers, including Dr. I. In addition, the Veteran, even after his claim for service connection in 2006, did not relate his 2008 treatment for a rash to his service; instead the Veteran reported to Dr. M a history of skin rash due allergens. Moreover, no medical professional has ever indicated the post-service skin complaints are related to any in-service event or exposure (such as to Agent Orange), nor has the Veteran ever stated that such an opinion has been given. To the extent that the Veteran contends that current skin symptoms are related to his service, the probative value of his general lay assertions is outweighed by the evidence therefore reflects that his skin rash of the hands and tumors of the right hand are unrelated to service. As there is a preponderance of evidence against the Veteran's claim for a skin disability, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b) (West 2002); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant). ORDER Entitlement to service connection for bilateral hearing loss disability is granted. Entitlement to service connection for tinnitus is granted. Entitlement to service connection for a skin rash, bilateral hands, with tumors of the right hand is denied. REMAND As previously discussed, in December 2007 and December 2010 rating decisions, service connection for residuals of prostate cancer and PTSD were granted. In June 2008 and February 2011 statements, the Veteran filed a notice of disagreement (NOD) with the ratings assigned. Although these ratings were subsequently increased, the grant of a higher initial rating is not a full grant of the benefit sought on appeal. In addition, even though the RO ultimately granted a total disability rating based on individual unemployability, this fact alone does not render the pending claims for higher ratings moot. The Veteran has not indicated that he was satisfied with the increased initial ratings. And, because the Veteran filed NODs as to the issue of entitlement to a higher initial rating for residuals of prostate cancer and PTSD, the Veteran is entitled to a statement of the case (SOC) addressing those issues. When a claimant has filed a NOD and there is no SOC on file for that issue, the Board must remand, not refer, the issue to the RO for issuance of a SOC. Manlincon v. West, 12 Vet. App. 238 (1999). As such, these claims must be remanded to the RO for issuance of a statement of the case (SOC). The Veteran also must be given an opportunity to perfect an appeal to the Board concerning these issues by submitting a timely substantive appeal (e.g., a VA Form 9 or equivalent statement). See 38 C.F.R. §§ 20.200, 20.202, 20.300, 20.301, 20.302, 20.303, 20.304, 20.305. Accordingly, the case is REMANDED for the following action: The AMC/RO should issue a Statement of the Case addressing the claims for entitlement to higher initial ratings for residuals of prostate cancer and PTSD. The Veteran and his representative should also be advised that, for the Board to have jurisdiction in the matter, a timely substantive appeal responding to the SOC must be filed. Should the Veteran or his representative submit a timely substantive appeal, the matter should be returned to the Board for appellate review. The purpose of this remand is to provide assistance by further developing the record. The Board does not intimate any opinion as to the merits of the case, either favorable or unfavorable, at this time. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ MATTHEW D. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs