Citation Nr: 1331341 Decision Date: 09/27/13 Archive Date: 10/01/13 DOCKET NO. 05-20 552 ) DATE ) ) Received from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUES 1. Entitlement to service connection for a left ankle disability. 2. Entitlement to service connection for a bilateral lower extremity disability. 3. Entitlement to service connection for a low back disability. 4. Entitlement to service connection for a psychiatric disability. REPRESENTATION Appellant represented by: Jaya A. Shurtliff, Attorney at law ATTORNEY FOR THE BOARD J. W. Loeb INTRODUCTION The Veteran served on active duty from February 2003 to July 2003. This matter originally came to the Board of Veterans' Appeals (Board) on appeal from an October 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The claims were remanded by the Board in July 2007 for additional development. In July 2010, the Board remanded the issues currently on appeal to the RO to obtain Social Security Administration (SSA) records and a VA examination of the lower extremities with an etiological opinion. SSA records were obtained and added to the claims files. VA examinations with opinions were obtained in 2011 and 2013 and added to the claims files. Based on the above, there has been substantial compliance with the July 2010 remand instructions as well as the prior remand instructions from July 2007. Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand by the United States Court of Appeals for Veterans Claims (Court) or the Board confers on the Veteran or other claimant, as a matter of law, the right to compliance with the remand orders). FINDINGS OF FACT 1. The Veteran does not have a chronic left ankle disability that had its onset during or is causally related to his active service. 2. The Veteran does not have a chronic bilateral lower extremity disability that had its onset during or is causally related to his active service. 3. The Veteran does not have a chronic low back disability that had its onset during or is causally related to his active service. 4. The Veteran has depression related to his active service. CONCLUSIONS OF LAW 1. A left ankle disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 2. A bilateral lower extremity disability was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). 3. A low back disability was not incurred in or aggravated by active service, nor may arthritis be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1110, 1112, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2013). 4. Depression was incurred in active service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Board has considered the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 and Supp. 2013). The regulations implementing VCAA have been enacted. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify the claimant of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. See also Quartuccio v. Principi, 16 Vet. App. 183 (2002). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied. The notice and assistance provisions of VCAA should be provided to a claimant prior to any adjudication of the claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the RO sent the Veteran a letter in September 2003, prior to adjudication of the claim, which informed him of the requirements needed to establish entitlement to service connection. The letter informed the Veteran of what evidence and information he was responsible for, and the evidence that was considered VA's responsibility. In compliance with the duty to notify, the Veteran was informed in an August 2007 letter of the criteria for assignment of a disability rating and/or effective date, in the event of award of the benefit sought. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claims were subsequently readjudicated, which cured any timing defect. VA has a duty to assist the claimant in obtaining evidence necessary to substantiate a claim. The evidence of record includes service treatment records, VA treatment records, a VA examination report, SSA records, and statements on appeal. There is no indication that there is outstanding available evidence that is pertinent to the appeal. VCAA also requires VA to provide a medical examination when such an examination is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159, see also McLendon v. Nicholson, 20 Vet. App. 79 (2006). There are several VA evaluation reports on file, with the most recent in May 2013. When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA opinions obtained in this case, especially those dated in November 2011 and May 2013, are adequate, as they are predicated on a reading of relevant medical records in the Veteran's claims file and physical examination findings. The opinions considered all of the pertinent evidence of record at the time, to include the Veteran's medical records and statements, and provide a rationale for the opinions stated. The Board concludes that all available evidence has been obtained and that there is sufficient medical evidence on file on which to make a decision on the issues decided herein. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion on the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has been given an opportunity to present evidence and argument in support of his claims. The Board additionally finds that general due process considerations have been complied with by VA and the Veteran has had a meaningful opportunity to participate in the development of the claims. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006); 38 C.F.R. § 3.103 (2007). Thus, the Board may proceed on the merits of the claims on appeal. Analysis The Veteran seeks service connection for left ankle disability, bilateral lower extremity disability, low back disability, and a psychiatric disability, which he contends started in service and have continued to bother him. Legal Criteria Service connection may be granted for disability or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2013). Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred in service. 38 C.F.R. § 3.303(d); Cosman v. Principi, 3 Vet. App. 303, 305 (1992). Service connection may be presumed for certain chronic diseases, such as arthritis, that are manifested to a compensable degree within one year after separation from service. 38 U.S.C.A. §§ 1101, 1112 (West 2002 & Supp. 2013); 38 C.F.R. § 3.307, 3.309(a) (2013). In order to establish direct service connection for a disorder, there must be (1) competent evidence of the current existence of the disability for which service connection is being claimed; (2) competent evidence of a disease contracted, an injury suffered, or an event witnessed or experienced in active service; and (3) competent evidence of a nexus or connection between the disease, injury, or event in service and the current disability. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. Sept. 14, 2009); cf. Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). Medical expert evidence is required to meet the requirement that the evidence be "competent" when the issue is one of medical complexity. However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr, 21 Vet. App. at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159. Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (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. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson, 581 F.3d at 1313. In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr, 21 Vet. App. at 303 (concerning varicose veins); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flat feet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table); see Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"). Musculoskeletal Disabilities The Veteran's service treatment records reveal that he complained of pain in the knees, hips, back, and ankles. Stress fractures were diagnosed. He was placed in a Physical Therapy and Rehabilitation program. An MRI of the right knee in April 2003 was unremarkable. An initial bone scan showed findings consistent with stress fractures; a later bone scan of the pelvis and below in June 2003 did not show any evidence of a stress fracture. According to a July 2003 medical report from St. Joseph Medical Center, the Veteran was seen in the emergency room for bilateral lower extremity pain, which occurred in February during Army training. VA treatment reports dated from August 2003 to February 2004 reveal that the Veteran complained in August 2003 of pain in both shins, knees, thighs, and hips, as well as in his left ankle and low back. He had a history of stress fractures and ligament tears. X-rays of the feet, knees, and ankles in August and September 2003 were considered normal, with a possible stress fracture of the tibia noted on one report and a possible "march fracture" of the proximal tibia noted on another report. Electrodiagnostic studies in December 2003 did not reveal any electrical evidence of sensory peripheral neuropathy of the lower extremities. The impression in December 2003 was likely fibromyalgia. According to a December 2003 VA Addendum report, the Veteran had multiple arthralgias after having tibial stress fracture in service. He complained of pain everywhere and was tender in every location touched. There were no swollen joints. A September 2003 medical report from L. Saperstein, M.D., contains the diagnoses of history of stress fracture, multiple musculoskeletal pains and aches, and joint pain of uncertain etiology. The diagnoses on an October 2003 psychiatric evaluation by A. Klahr, M.D., included chronic pain disorder secondary to bilateral stress fractures. Private treatment records dated from June 2004 to January 2005 reveal that the Veteran incurred injuries to his neck, back, shoulder, hear, and thighs in an automobile accident in June 2004; there was no electrodiagnostic evidence of lumbar radiculopathy. The impression on a private MRI of the lumbar spine in September 2004 from Inter-County Imaging was left-sided herniation of the L5-S1 disc. According to a June 2005 medical report from J. F. DeFeo, M.D., the Veteran has probable arthrosis of the knees generated by two stress fractures that occurred in service in 2003. It was noted that the Veteran had been diagnosed with fibromyalgia or myofascial syndrome. The impression on a private MRI of the lumbar spine in November 2006 was disc desiccation at L5-S1 with no evidence of disc herniation or canal stenosis. Hemangioma was incidentally noted in the L2 vertebral body. It was concluded that there was no significant change from the September 2004 MRI study. The impressions on a December 2006 medical report from J. Futran, M.D., were rule out sero-negative spondyloarthritis and rule out other inflammatory arthritis. Fibromyalgia was noted in a September 2007 report from the Midland Avenue Family Practice. According to an October 2007 lay statement from C.F., who lived with the Veteran, he had fibromyalgia syndrome, with severe pain in multiple joints. According to a May 2008 medical report from Midland Avenue Family Practice, the Veteran had fibromyalgia, chronic heart palpitations, and migraines. The Veteran was seen at the New York Spine and Wellness Center from April to July 2009. The diagnoses in July 2009 were lumbar herniated nucleus pulposus without myelopathy and lumbar degenerative disc disease. It was noted that electrodiagnostic findings were consistent with left S1 radiculopathy. The Veteran was provided VA spine and lower extremity evaluations in January 2010, which included review of the claims files. The spinal diagnosis was radiculopathy. Based on the Veteran's history, the documentation, and the clinical and imaging information, the examiner concluded that the Veteran's low back pain was less likely than not related to service. On lower extremity examination, x-rays of the knees and ankles were normal, with no evidence of a stress fracture. Based on all reviewed documentation, it was concluded that there was insufficient evidence to document that the Veteran incurred tibial/fibular stress fractures. The examiner opined that the Veteran's current knee and ankle complaints were less likely than not related to service. On VA psychiatric evaluation in February 2010, the examiner noted that, based on the Veteran's self report and claims file documentation, the Veteran's knee and leg pain were due to service injury. An October 2010 MRI of the left knee showed mild diffuse articular cartilage thinning of the patella. According to a March 2011 lay statement from C.F., the Veteran had severe pain in his knees that radiated into the rest of his body. VA evaluation of the lower extremities, which included review of the claims files, was conducted in March 2011. X-rays of the knees were reported to be within normal limits. The diagnosis was bilateral lower extremity myofascial syndrome of unclear etiology. The examiner, who cited to multiple medical texts on stress fractures, opined that the Veteran's bilateral lower extremity disorder involving bones surrounding the knees was at least as likely as not the result of his in-service complaints. While one report indicated the possibility of stress fractures, the examiner concluded that the preponderance of the available evidence did not support that diagnosis. According to the examiner, the Veteran had some residual disability but it was unclear how much of the residual was directly attributable to the 2003 complaints versus another current diagnosis, such as fibromyalgia, as there was no evidence to support or negate further injury since the date of service. The examiner could not resolve the issue of current residual disability due to inservice problems without resorting to speculation. According to a May 2011 report from the Family Health Center of Community Memorial Hospital, after review of the service treatment reports, it was concluded that the Veteran's current low back and bilateral lower extremity disabilities began in service and are as likely as not related to service. When examined by VA for musculoskeletal disability in November 2011, the Veteran complained of multiple joint pain of the upper and lower extremities. Physical examination did not reveal any evidence of abnormality of the lower extremities or low back. It was noted that both legs showed excellent muscular development without obvious atrophy or deformity. X-rays were noted to be normal. According to the examiner, the Veteran's service stress fractures of the lower extremities had healed, and his service problems were unrelated to his current complaints of pain in the shoulders, elbows, and wrists. Finally, the examiner concluded that the Veteran had a myofascial pain syndrome of unknown etiology, with no evidence of a relationship between his myofascial pain syndrome of the upper and lower extremities and events in service. A VA evaluation of the lower extremities was obtained in May 2013. X-rays of the lower extremities indicated that the Veteran's stress fractures had healed. After review of the claims files and examination of the Veteran, it was concluded that the Veteran's claimed disability of a bilateral lower extremity disorder, to include residuals from stress fractures, is less likely than not incurred in or caused by his claimed in-service injury, event, or illness. The examiner cited to medical texts and noted that the weight of the medical literature suggests that stress fractures of the lower extremities are common overuse injuries that respond well to conservative treatment; they are routinely not disabling even though the Veteran had reported intractable total body pain and an inability to work since 2003. There is evidence on file both for and against the Veteran's claims for service connection for a left ankle disability, a bilateral lower extremity disability, and a low back disability. The Board has the authority to "discount the weight and probity of evidence in the light of its own inherent characteristics and its relationship to other items of evidence." Madden, 125 F.3d at 1481. The Board may appropriately favor the opinion of one competent medical authority over another. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). The Court has held that the Board may not reject medical opinions based on its own medical judgment. See Obert v. Brown, 5 Vet. App. 30 (1993). The Board finds the November 2011 and May 2013 VA nexus opinions weighing against the claims to be of more probative value, when considered along with the other evidence of record, than the evidence in favor of the claims. Generally, the degree of probative value which may be attributed to a medical opinion issued by a VA or private treatment provider is weighed by such factors as its thoroughness and degree of detail, and whether there was review of the Veteran's claims file. Prejean v. West, 13 Vet. App. 444 (2000). Also significant is whether the examining medical provider had a sufficiently clear and well-reasoned rationale, as well as a basis in objective supporting clinical data. Bloom v. West, 12 Vet. App. 185 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379 (1998). See also Claiborne v. Nicholson, 19 Vet. App. 181 (2005) (rejecting medical opinions that did not indicate whether the physicians actually examined the veteran, did not provide the extent of any examination, and did not provide any supporting clinical data). The Court has held that a bare conclusion, even one reached by a health care professional, is not probative without a factual predicate in the record. Miller v. West, 11 Vet. App. 345 (1998). In order for a medical opinion to be probative, the medical examiner must have correct information regarding the relevant facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008), Guerrieri v. Brown, 4 Vet. App. 467 (1993) (observing that the evaluation of medical evidence involves inquiry into, inter alia, the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches); see Shipwash v. Brown, 8 Vet.App. 218 (1995); Flash v. Brown, 8 Vet. App. 332 (1995) (regarding the duty of VA to provide medical examinations conducted by medical professionals with full access to and review of the veteran's claims folder); but see D'Aries v. Peake, 22 Vet. App. 97, 106 (2008) (holding that it is not necessary for a VA medical examiner to specify review of the claims folder where it is clear from the report that the examiner has done so and is familiar with the claimant's extensive medical history). Although the Veteran complained of musculoskeletal pain in service, and stress fractures were noted, an MRI of the right knee in April 2003 and a bone scan of the lower extremities in June 2003 did not show any evidence of a stress fracture. X-rays of the feet, ankles, and knees in August and September 2003 were considered normal, except for a possible stress or "march" fracture of the proximal tibia. Although Dr. DeFeo concluded that the Veteran has probable arthrosis of the knees generated by two stress fractures that occurred in 2003, the Board notes that Dr. DeFeo does not discuss the clinical evidence in service or after discharge that supports this conclusion. Dr. Klahr diagnosed a chronic pain disorder secondary to bilateral stress fractures in October 2003. A VA psychiatric opinion in February 2010 found that, based on the Veteran's self report and claims file documentation, the Veteran's knee and leg pain was due to service injury. These two opinions refer to pain without any specific diagnosis. However, pain alone, without a diagnosed or identifiable underlying malady or condition, is not a disability for which service connection may be granted. Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), appeal dismissed in part and vacated and remanded in part sub nom. Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). While the March 2011 VA opinion initially appears to be in favor of the claim when it notes that the Veteran's bilateral lower extremity disorder is at least as likely as not the result of his in-service complaints, the examiner essentially negates the opinion by noting that the issue of whether there are current residuals due to service injury cannot be resolved without resort to speculation, which is insufficient to support a grant of service connection given the other evidence. Although the May 2011 opinion from the Family Health Center of Community Memorial Hospital concludes that the disabilities are as likely as not related to service, this opinion does not diagnose specific disabilities and does not discuss the medical evidence against the claims. In other words, the opinion does not include a clear rationale based on the medical evidence of record. On the other hand, the November 2011 and May 2013 VA opinions that weigh against the claims, which are based on a review of the claims files and examination of the Veteran, include cites to medical texts and a rationale for each opinion based on the evidence of record. These opinions cite to recent x-rays and note the absence of clinical evidence of current residuals of a stress fracture. Moreover, arthritis of the low back was not shown in service or for several years after service discharge, and there is no medical opinion linking arthritis of the low back to service injury. The lay statements from the Veteran and from C. F. have been taken into consideration in this decision. Although the Veteran is competent to report his subjective problems, and C. F. is competent to report her observations, the Veteran, who does not possess medical expertise, is not competent to diagnose or opine that he has a chronic musculoskeletal disability due to service in this case in view of the complexity of the medical questions. The Board notes that C.F.'s statements refer to the Veteran's current symptomatology and not to the etiology of his disabilities. Finally, in reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claims for service connection for left ankle disability, bilateral lower extremity disability, and low back disability, the doctrine is not for application. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the Board concludes that service connection is not warranted for these three claims. Psychiatric Disability The Veteran's service treatment reports do not reveal any complaints or clinical findings of a psychiatric disorder. VA treatment records show that the Veteran was seen in August 2003 for complaints of depression. The diagnoses were rule out major depressive disorder, rule out adjustment disorder with depressed mood, and rule out mood disorder due to general medical condition with depressive features. Panic attacks and depression were reported in October 2003, at which time it was noted that the Veteran's wife had left him. The impression in October 2003 was major depressive disorder, rule out adjustment disorder with depressed mood. In October 2003, Dr. Klahr diagnosed a panic disorder with mild agoraphobia and a depressive disorder, not otherwise specified. It was noted in a VA treatment record dated in December 2003, which primarily concerned the Veteran's musculoskeletal problems, that the Veteran appeared depressed and was taking Prozac. According to a June 2005 medical report from Dr. DeFeo, the Veteran had depression and anxiety reaction. An October 2005 decision of SSA granted disability benefits effective July 1, 2003 for his psychiatric disability, characterized as an affective disorder with disturbance of mood, accompanied by a depressive syndrome. The Veteran was provided a VA psychiatric evaluation in February 2010. A major depressive disorder was diagnosed, and the examiner concluded that this disorder appeared to be secondary to pain he experienced from arthralgia and prior stress fracture of the tibia. According to a May 2011 medical report from the Family Health Center of Community Memorial Hospital, it was as likely as not that the Veteran's neuropsychiatric disability is related to service because his chronic pain syndrome started in service. The diagnosis on VA evaluation in November 2011 was mood disorder with anxiety due to his medical condition, as it was noted that he sustained a knee injury in service with daily pain and an inability to work and function as he once could, moderate. Based on the above evidence of record, the Board finds that the Veteran has a depressive disorder due to service, as he was seen in the month following service discharge for depression that appeared to be due to his medical condition. The only nexus opinions on file, which are dated in February 2010, May 2011, and November 2011, support a grant of service connection for depression due to service. At the least, a reasonable doubt arises as to the origin of the Veteran's depression. When reasonable doubt is resolved in his favor, the Board finds that the Veteran has depressed related to his active service. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Therefore, the Board concludes that service connection is warranted for depression. ORDER Service connection for a left ankle disability is denied. Service connection for a bilateral lower extremity disability is denied. Service connection for a low back disability is denied. Service connection for depression is granted. ____________________________________________ RYAN T. KESSEL Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs