Citation Nr: 1330634 Decision Date: 09/24/13 Archive Date: 09/30/13 DOCKET NO. 09-39 491 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to service connection for tinnitus. 2. Entitlement to service connection for headaches. 3. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression with anxiety and nervousness. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD T. Y. Hawkins, Counsel INTRODUCTION The Veteran served on active duty from June 1984 to March 1988. These matters come before the Board of Veterans' Appeals ("Board") on appeal from an August 2008 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Huntington, West Virginia, which denied the claims. Although the Veteran was scheduled for a Board hearing before a Veterans Law Judge in April 2012, he failed to appear and has not shown good cause as to why he missed the hearing. The hearing request is deemed withdrawn. 38 C.F.R. § 20.702(d) (2012). In September 2012, the claims were remanded to the RO via the Appeals Management Center ("AMC") in Washington, DC, for additional development, to include obtaining Social Security Administration ("SSA") disability records. As there has been substantial compliance with the Board's remand directives, the Board finds there is sufficient evidence to adjudicate a portion of the claims. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand). The Board has reviewed those of the Veteran's records Virtual VA (electronic) system. The issue of entitlement to service connection for tinnitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the AMC. The Veteran will be notified if additional action is required on his part. FINDINGS OF FACT 1. The Veteran is not shown by the competent and probative evidence of record to have a current disorder manifested by headaches, nor was he found to have such a disorder at any time during the period on appeal. 2. The Veteran is not shown by the probative medical evidence of record to have a current diagnosis of an acquired psychiatric disorder, to include depression with anxiety and nervousness, that was either caused by, or related to active military service. CONCLUSIONS OF LAW 1. A headache disorder was neither incurred in, nor aggravated by, active duty service and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. An acquired psychiatric disorder, to include depression with anxiety and nervousness, was neither incurred in, nor aggravated by, active duty service and may not be presumed to have been so incurred or aggravated. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012). When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his or her representative, if any, of any information and 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) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) ("Pelegrini II"), the United States Court of Appeals for Veterans Claims ("Court") held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Element (4), however, the requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim, is no longer applicable. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini, effective May 30, 2008). The VCAA notice requirements apply to all five elements of a service connection claim. These are: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Of particular importance, in Dingess/Hartman, the Court held that the VCAA notice must include notice that a disability rating and an effective date of the award of benefits will be assigned if service connection is awarded. VA satisfied the notification requirements of the VCAA by means of pre-adjudication letter, dated April 2008. This letter afforded the Veteran notice of the types of evidence needed in order to substantiate his service connection claims, the division of responsibility between himself and VA for obtaining the required evidence, and requested that he provide any information or evidence in his possession that pertained to such claims. This letter also satisfied the requirements of Dingess by advising the Veteran of how VA determines the disability rating and effective date elements of a claim. 38 U.S.C.A. §5103(a); 38 C.F.R. § 3.159(b). The claims were subsequently readjudicated in a July 2009 Statement of the Case and in September 2010 and January 2013 Supplemental Statements of the Case. VA's duty to assist has been satisfied. The claims file contains the Veteran's service and post-service treatment records, as well as treatment reports provided by the SSA. Additionally, the claims file contains the Veteran's personal statements in support of his claim. The Veteran has not referenced any outstanding, available records that he wanted VA to obtain that have not already been obtained and associated with the record. VA has a duty to provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2011). However, VA's duty to provide a medical examination or opinion is not triggered unless the record contains competent evidence or symptoms of a current disability; evidence establishing that an event, injury, or disease occurred in service, or a disease manifested during an applicable presumptive period; and an indication that the disability or persistent or recurrent symptoms of a disability may be associated with service or a service-connected disability. 38 U.S.C.A. § 5103A; McLendon v. Nicholson, 20 Vet. App. 79 (2006). An examination is not warranted for the Veteran's claims of entitlement to service connection for headaches or an acquired psychiatric disorder, as there is no competent lay or medical evidence to suggest that the Veteran has a current diagnosis of a disability manifested by headaches or was diagnosed with such condition at any time during the appeals period. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (service connection may be granted if a disability existed at the time a claim for VA disability compensation was filed or at any time during the pendency of the claim, even if the disability resolves prior to the adjudication of the claim). Moreover, there is no competent lay or medical evidence to suggest that any of the Veteran's psychiatric disorders began during, or were the result of, active duty service. The Court has held that, in similar circumstances, where the supporting evidence of record consists only of a lay statement, VA is not obligated, pursuant to 5103A(d), to provide an appellant with a medical nexus opinion. See Duenas v. Principi, 18 Vet. App. 512, 519 (2004) (finding no prejudicial error in Board's statement of reasons or bases regarding why a medical opinion was not warranted because there was no reasonable possibility that such an opinion could substantiate the veteran's claim, as there was no evidence, other than his own lay assertion, that "'reflect[ed] that he suffered an event, injury[,] or disease in service' that may be associated with [his] symptoms"). There are instances in which lay testimony can serve to establish an association between service and the claimed disability for the purpose of satisfying the criteria of McLendon. See Charles v. Principi, 16 Vet. App. 370 (2002). For example, a lay person may be competent to offer testimony on certain medical matters, such as describing symptoms observable to the naked eye, or even diagnosing simple conditions such as a dislocated shoulder, and his or her lay testimony as to a continuity of symptomatology may satisfy the requirements of McLendon. However, unlike a dislocated shoulder, complex neurological and psychiatric conditions are not disorders that easily lend themselves to lay observation or diagnosis. Therefore, as the Veteran has not been shown to be competent to offer an opinion on a matter requiring medical expertise, his assertions are not competent. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). Therefore, this is not a case in which the lay opinion of the Veteran may serve to establish any association between either his claimed headache disorder or acquired psychiatric disorder and military service so as to satisfy the requirements of McLendon. The development of the claims has been consistent with the provisions of the law. The appellant has been provided with every opportunity to submit evidence and argument in support of his claims, and to respond to the VCAA notice. The purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his appealed claims. Accordingly, the Board will proceed to a decision on the merits. Analyses The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Under 38 U.S.C.A. § 1154(a), VA is also required to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. In Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), the United States Court of Appeals for the Federal Circuit ("Federal Circuit") held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3), lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." (footnote omitted). However, the Court has held that "[t]he type of evidence that will suffice to demonstrate entitlement to service connection, and the determination of whether lay evidence may be competent to satisfy any necessary evidentiary hurdles, depends on the type of disability claimed." Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In order to establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) the 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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, under 38 C.F.R. § 3.303(b), service connection may be awarded for a "chronic" condition when (1) a chronic disease manifests itself and is identified as such in service, or within the presumptive period under 38 C.F.R. § 3.307, and the veteran presently has the same condition; or (2) a disease manifests itself during service, or during the presumptive period, but is not identified until later, and there is a showing of continuity of related symptomatology after discharge, and medical evidence relates that symptomatology to the Veteran's present condition. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Additionally, service connection for certain diseases, including psychosis and organic diseases of the nervous system, may be established on a presumptive basis by showing that the disease manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a) (2012). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A. Entitlement to service connection for headaches. On his application for service connection, the Veteran stated that he began experiencing headaches in August 1987, during active military service. Review of his service treatment records reveals that he was seen in June 1987 with complaints of daily headaches that had been present for one week. An ear, nose and throat examination revealed normal findings, as did a neurological evaluation. The assessment was stress headaches associated with a math course the Veteran was taking. A subsequent treatment report in July 1987 shows that he was seen with complaints of malaise since a few days earlier. Although he complained of mild, frontal headaches, the clinician noted the condition as suspected sinusitis. There are no additional reports showing treatment for headaches during service, and there is no separation examination of record. However, post-service treatment records show no evidence that the Veteran was diagnosed with a disorder manifested by headaches within one year of separation from service. Service connection for this condition on a presumptive basis is not therefore for application. There is no evidence that the Veteran sought treatment for headaches until March 1994, some six years after his separation from active service. At that time, he was seen by a private provider and complained of having experienced headaches for the past two years, as well as nausea and weakness. The assessment was hypertension. In September 1994, he reported that he was experiencing headaches once per month; he was diagnosed with hypertension and tension headaches. There is no indication that the Veteran was seen for complaints of headaches again until September 1995, at which time, it was noted that his headaches were improving. There are no treatment reports of record since 1995 to show either the existence of a continuing headache disorder, or that the Veteran was diagnosed with headaches at any time during the pendency of this claim. In fact, during a new primary care consultation at the VA Medical Center ("VAMC") in July 2001, the Veteran apparently reported that he had no history of headaches. A subsequent November 2007 VAMC treatment reports also demonstrates that the Veteran was negative for headaches. The preponderance of the probative evidence is against the claim of entitlement to service connection for headaches on either a direct or presumptive basis. As noted above, in order to establish direct service connection, there must be competent medical evidence of a current disability, a disease or injury in service, and competent medical evidence linking the claimed in-service disease or injury to the current disability. Significantly, as noted above, there has been no medical evidence presented to show that the Veteran currently has a diagnosis of a disorder manifested by headaches or was ever diagnosed with such a condition at any point during the pendency of this appeal. While the private treatment reports from 1994 and 1995 showed a diagnosis of headaches, there is no indication that the Veteran or the clinician related them to any incident of active service. In addition, there is no evidence of a continuation of headaches after September 1995, when it was noted that the condition was improving. In addition to the medical evidence, the Board has considered the Veteran's lay assertions. The Court has held that a veteran is competent to describe symptoms of which he or she has first-hand knowledge. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As the Board finds that headache pain is a symptom the Veteran is competent, as a lay person, to describe, his contention carries some probative weight. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995). However, even where a veteran asserts continuity of symptomatology since service, the Court has held that generally, medical evidence is ultimately required to establish "a nexus between the continuous symptomatology and the current claimed condition...." See, e.g., McManaway v. West, 13 Vet. App. 60, 66 (1999), vacated on other grounds sub nom. McManaway v. Principi, 14 Vet. App. 275 (2001); Voerth v. West, 13 Vet. App. 117 (1999). However, although the Veteran is competent to report what comes to him through his senses, there has been no evidence presented that he has the medical knowledge or training that would permit him to relate a potential neurological condition manifested by headaches to military service. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). As such, although the Board acknowledges the Veteran's belief that he has a headache disorder, his statements in this regard are not deemed competent. Accordingly, the Board concludes that the preponderance of the evidence is against the Veteran's claim of entitlement to service connection for headaches, both on a direct and presumptive basis. The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not applicable, as there is not an approximate balance of evidence. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression with anxiety and nervousness. On his application for VA disability benefits, the Veteran claims that his depression began in October 1986, a nervous condition began in October 1987, and anxiety began in January 2001. Review of the service treatment records, however, reveals no evidence of complaints of, treatment for, or a diagnosis of a mental disorder. As noted above, there is no separation report of record, and the Veteran's June 1983 service enlistment examination revealed normal psychiatric findings, at which time, he also denied experiencing or having previously experienced nervous trouble or depression. Following service, there is no probative evidence that the Veteran was diagnosed with psychosis within one year of separation. Service connection for psychosis on a presumptive basis is therefore not for application. Post-service treatment reports show that the first documented evidence that the Veteran had a possible psychiatric disorder was in October 2007, when a private treatment report revealed a diagnosis of depressive disorder, not otherwise specified ("NOS"), and alcohol abuse. There is no indication, however, that the Veteran reported experiencing depression related to some aspect of his military service, or that the clinician linked his diagnoses to service. In November 2007, the Veteran was seen in the emergency room of the VAMC with complaints of depression and anxiety resulting from a claim of marital infidelity against his wife. At that time, he underwent a mental health evaluation, at which time, the clinician noted that he had also been treated for depression in 2002 following the removal of one of his foster children. He reported that he was experiencing bouts of crying and feelings of sadness, hopelessness, helplessness and anxiety for the past 2-3 weeks. He also reported that he believed he had not yet grieved for a baby lost during his wife's miscarriage. Although the clinician noted that the Veteran had previous military service from 1984 to 1988, the Veteran denied combat service and there was no indication from the clinician that his symptoms stemmed from, or were otherwise related to active duty service. The diagnoses were anxiety disorder, NOS, and depressive disorder, NOS. During a December 2007 VAMC mental health assessment, the Veteran reported that he had recently been charged with driving while under the influence; treatment reports throughout the period on appeal show that he was recovering from alcohol abuse. He also mentioned that he was upset over child abuse allegations made by his wife's family. Review of a June 2008 West Virginia disability determination examination with a licensed psychologist shows that the Veteran complained of depression anxiety, sleep deprivation and some physical disorders, as well as his status as a recovering alcoholic. He claimed that these symptoms began only four years earlier. During a discussion of his symptoms, the Veteran reported that he had torn cartilage and ligaments during his army service. He did not, however, discuss having any problems, injuries or events in service related to his psychiatric symptoms. During a September 2009 VAMC mental health assessment, the Veteran reported that he was still trying to cope with the death of his sister. He also reported that his divorce had not been finalized and he missed his children. The preponderance of the probative evidence of record is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder, claimed as depression with anxiety and nervousness. With regard to granting service connection on a direct basis, as discussed above, the Veteran's service treatment reports reveal that he neither complained of, sought treatment for, nor was diagnosed with a mental health disorder during service. Despite his contention that he began to experience depression in October 1986 and first had a nervous condition in October 1987, the treatment reports clearly show that he did not seek treatment for any psychiatric symptoms until October 2007, nearly 20 years following active duty service, at which time, he consistently related his symptoms to personal problems involving his family and his issues with alcoholism. The law recognizes that a prolonged period without medical complaint can be considered, along with other factors concerning a claimant's health and medical treatment during and after military service, as evidence of whether an injury or a disease was incurred in service which resulted in any chronic or persistent disability. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The amount of time that passed between service and the first treatment or documented complaint of record of an acquired psychiatric disorder is evidence that weighs against the Veteran's claim, and further substantiates the fact that he had not suffered from a mental disorder continuously since service. Significantly, as noted above, other than the Veteran's application for VA disability benefits, there is no documented evidence of record in which either the Veteran, or any of his treating mental health providers associated any of his psychiatric disorders with military service. In addition to the medical evidence, the Board has also considered the Veteran's assertions that he has an acquired psychiatric disorder that is related to service. The law recognizes that laypersons such as the Veteran are competent to report what they experience with their own senses. See Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). As such, his reports are entitled to some probative weight. However, a layperson without medical training or experience is not competent to offer an opinion on complex medical issues, such as associating feelings of sadness with a specific underlying psychiatric disorder, or attributing a current mental disorder to active duty service over 20 years earlier. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). See also Espiritu v. Derwinski, 2 Vet. App. 492 (1992) (a layperson without the appropriate medical training and expertise is not competent to provide a probative opinion on a medical matter, to include a diagnosis of a specific disability and a determination of the origins of a specific disorder). Moreover, as noted above, even where a veteran has asserted a continuity of symptomatology since service, medical evidence is required to establish "a nexus between the continuous symptomatology and the current claimed condition ...." See, e.g., McManaway v. West, supra; Voerth v. West, supra. As a result, while the Board has considered the contentions of the Veteran as to having a service-related acquired psychiatric disorder, the Board ultimately places more probative weight on the evidence of record, specifically the contemporaneous psychiatric evaluations performed by VA and private providers. Accordingly, the Board concludes that the probative evidence of record is against the Veteran's claim of entitlement to service connection for an acquired psychiatric disorder on both a direct and presumptive basis. The "benefit-of-the-doubt" rule enunciated in 38 U.S.C.A. § 5107(b) is not applicable, as there is not an approximate balance of evidence. See generally Gilbert, supra; Ortiz, supra. ORDER Service connection for headaches is denied. Service connection for an acquired psychiatric disorder, claimed as depression with anxiety and nervousness is denied. REMAND The Board has determined that additional development of the claim of service connection for tinnitus is necessary prior to the adjudication of the claim. The Veteran states that his military occupational specialty ("MOS") as a construction equipment repairer exposed him to substantial noise and resulted in tinnitus; review of his DD 214 indeed substantiates his claimed MOS, and that he worked in this occupation for three years. VA Fast Letter 10-35, entitled "Modifying the Development Process in Claims for Hearing Loss and/or Tinnitus" (September 2, 2010), introduces the Duty MOS Noise Exposure Listing ("DMNEL"), a rating job aid for determinations regarding service connection for hearing loss and/or tinnitus. The DMNEL is a compilation of Department of Defense-verified lists of military occupational specialties and the corresponding probability of hazardous noise exposure. In this case, the DMNEL indicates that a construction equipment repairer would have a high probability of hazardous noise exposure. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran with an appropriate clinician for a VA examination for an opinion as to whether any current tinnitus disorder was caused or aggravated by noise exposure in service. The examiner should elicit a complete history of the Veteran's symptomatology associated with the claimed condition and note that, in addition to the medical evidence, the Veteran's personal statements have been considered. The examiner must be specifically instructed to consider the Veteran's MOS as a construction equipment repairer, and that, according to the DMNEL, this MOS would have had a HIGH PROBABILITY of exposure to hazardous noise. The examiner should also consider and comment on an August 1985 in-service reference audiogram, in which the clinician noted that the Veteran had been issued personal hearing protection, as well as a July 2001 VAMC primary care evaluation, in which the Veteran reported a hearing loss problem that was attributed to ear wax. 2. Thereafter, review the claims folder to ensure that the foregoing requested development has been completed and readjudicate the Veteran's claim. If the benefit sought on appeal is not granted, the Veteran and his representative should be provided with a Supplemental Statement of the Case and afforded the opportunity to respond thereto. The matter should then be returned to the Board, if in order, for further appellate process. 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). ______________________________________________ Vito A. Clementi Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs