Citation Nr: 1332162 Decision Date: 10/17/13 Archive Date: 10/21/13 DOCKET NO. 12-33 433A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for anxiety disorder, not otherwise specified. 2. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Tiffany Berry, Counsel INTRODUCTION The Veteran served on active duty from January 2006 to March 2010 including service in Iraq from October 2006 to February 2008. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2011 rating decision of the St. Petersburg, Florida, VA Regional Office (RO). Additionally, the Board notes that the Veteran's wife submitted a statement in support of his claim for a higher rating indicating the Veteran has not been able to hold a job since his separation from service in 2010 on account of his service-connected disability. A September 2012 VA treatment record also noted the Veteran was currently unemployed. Accordingly, the issue of TDIU is part and parcel of the determination of the claim for a higher rating for the Veteran's service-connected anxiety disorder and is properly before the Board. See Rice v. Shinseki, 22 Vet. App. 447, 453-55 (2009) (holding that a request for TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability; if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a total rating based on individual unemployability as a result of that disability is warranted). For purposes of clarity, this issue has been separately listed on the title page. The Board also notes that, in addition to the paper claims file, there is a paperless, electronic claims file associated with the Veteran's claim. A review of the documents in such file reveals that they are potentially relevant to the issue on appeal. Thus, any future consideration of this Veteran's case should take into account the existence of this electronic record. The issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT For the entire period on appeal, the Veteran's anxiety has been manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSION OF LAW The schedular criteria for the assignment of a disability evaluation of 30 percent, but not higher, for anxiety have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9413 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veteran's appeal arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the claims has been obtained. The Veteran's service treatment records and VA treatment records have been obtained. He has not indicated there are any additional records that VA should seek to obtain on his behalf. He also was provided with a VA examination in November 2010. The Board finds that the report of the November 2010 VA examination is adequate for evaluation purposes because the examiner conducted a clinical evaluation, reviewed the medical history, and described the disability in sufficient detail so that the Board's evaluation of the claimed disability is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Board may proceed to the merits of his claim. II. Higher Rating Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. §§ 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App 119 (1999). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations, which are potentially applicable, based upon the assertions and issues raised in the record and to explain the reasons and bases for its conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In the April 2011 rating decision on appeal, the RO granted service connection for general anxiety disorder and assigned a 10 percent rating effective from March 11, 2010. The Veteran's anxiety is currently rated pursuant to Diagnostic Code 9413. Under this criteria, a 100 percent rating is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; gross inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation or own name. A 70 percent rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 50 percent evaluation is warranted when occupational and social impairment is found with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 30 percent evaluation is warranted when there is occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). A 10 percent evaluation is warranted when there is occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran's capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely on the basis of social impairment. 38 C.F.R. § 4.126. The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating." Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment. Id. at 443. When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed.Cir.2013). A Global Assessment of Functioning (GAF) rating is a scale reflecting the psychological, social, and occupational functioning on a hypothetical continuum of mental-health illness. Richard v. Brown, 9 Vet. App. 266, 267 (1996), citing Diagnostic and Statistical Manual of Mental Disorders (4th ed.1994). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. A GAF score of 11 to 20 indicates that there is some danger of hurting oneself or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement), an occasional failure to maintain minimal personal hygiene, or gross impairment in communication. A GAF of 21 to 30 is defined as behavior considerably influenced by delusions or hallucinations or serious impairment in communication or judgment (e.g., sometimes incoherent, acts grossly inappropriate, suicidal preoccupation) or an inability to function in almost all areas (e.g., stays in bed all day, no job, home or friends). A GAF of 31 to 40 is assigned where there is "some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) OR major impairment in several areas, such as work or school, family relations, judgment, thinking or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up younger children, is defiant at home, and is failing at school). A GAF of 41 to 50 is defined as serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifter) or any serious impairment in social, occupational, or school functioning (e.g., no friends, unable to keep a job). A GAF of 51 to 60 is defined as moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). A GAF of 61 to 70 is defined as some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy or theft within the household), but generally functioning pretty well, has some meaningful interpersonal relationships. It should also be noted that use of terminology such as "moderate" by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In examining the evidence in this case, the Board concludes that the evidence supports a finding that the Veteran's anxiety more nearly approximates the criteria for the assignment of a 30 percent disability rating, as the Veteran and his wife have stated. A post deployment record, dated in June 2007, shows the Veteran reported he was still tired even after sleeping; feeling down, depressed, or hopeless; little interest or pleasure in doing things; nightmares; avoidance practices; feeling constantly on guard, watchful, or easily startled; and, dumbness or detachment from others. Following his separation from service, the Veteran's VA treatment records dated in April 2010 show he suffered from panic symptoms with agoraphobia ever since his return from Iraq. He reported that crowds of people and close quarters precipitate the attacks. The Veteran also reported an exaggerated startle response to loud noises, low appetite, fair energy, and an irregular sleep schedule. The Veteran denied specific psychoses, paranoia, mania, cyclic moods, depression, hallucinations, and suicidal and homicidal ideations. The treating physician noted the Veteran was alert; oriented to person, place, and time; neatly dressed and groomed; with normal behavior, activities, speech, and flow of thought. His memory and concentration were intact, and he did not have any thoughts or plans to harm or kill himself or others. Further, the physician noted there were no hallucinations or delusions. The Veteran's mood was described as euthymic and anxious, with normal affect and judgment. His insight was intact. A GAF score of 60 was assigned, which is indicative of moderate symptoms. The Veteran was afforded a VA psychiatric examination in November 2010. At this examination, he complained of having symptoms of anxiety, depressed mood, difficulty expressing himself, anger, engages in distorted thinking, and denied any manic or psychotic symptoms. The mental status examination revealed the Veteran was clean, neatly groomed, and appropriately dressed. His speech and activity were unremarkable. His attitude was cooperative, affect appropriate, and mood good. The examiner noted that the Veteran's attention was intact, and he was oriented to person, time, and place, with unremarkable thought process and content. There was no evidence of delusions, hallucinations, obsessive/ ritualistic behavior, and he understands the outcome of his behavior. It was noted the Veteran earned his GED and was then working at a 7-11 at the time of this examination. A GAF score of 62 was assigned, which is indicative of mild symptoms. The examiner ultimately concluded that the Veteran's anxiety symptoms are transient or mild and there is decrease in work efficiency and ability to perform occupational tasks only during periods of significant stress. Subsequent VA treatment records dated through September 2012, show the Veteran again reported panic attacks, feeling anxious, irritable, difficulty functioning, difficulty concentrating; and problems sleeping. He has continued to deny any suicidal or homicidal ideations, hallucinations, and delusions. These VA treatment records also show the Veteran has been prescribed Zoloft and Welbutrin to help with his anxiety symptoms, which he reported was helping. The most recent September 2012 VA treatment record noted the Veteran was not employed. GAF scores of 60 and 65 were assigned in March and May 2012, respectively. In correspondence of record, the Veteran stated that he feels overwhelmed by everyday tasks and ashamed that he has not been able to support his family. He also reported that he alienated his wife and family with his anger and frustration, and has had occasional thoughts of harming himself. Additionally, the Veteran's wife submitted a statement in December 2012 attesting to the severity of the Veteran's symptoms. She argues that the symptoms associated with a 30 percent disability rating fit her husband "perfectly." She reported the Veteran suffers from flashbacks; nightmares; difficulty falling and staying asleep; and, problems following a daily routine. She also stated that he had problems holding down a job sicne his separation from service. In claims seeking higher ratings, a Veteran's lay report may constitute competent evidence of worsening, at least with respect to observable symptoms. See Washington v. Nicholson, 21 Vet. App. 191, 195 (2007) (stating that "as a layperson, the appellant is competent to provide information regarding the visible, or otherwise observable, symptoms of disability"). Here, the Veteran and his wife's competent and credible report of the symptomatology associated with the Veteran's anxiety disorder are consistent with the findings of the November 2010 VA examiner and the VA treatment records, including in terms of their relative severity. Indeed, the Board finds these allegations of the frequency and severity of the Veteran's symptoms to be both competent and credible since uncontradicted, even by medical findings of record, and, thus, probative. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Barr v. Nicholson, 21 Vet. App. 303, 310 (2007); and 38 C.F.R. § 3.159(a)(2). See also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006) (indicating the Board cannot determine lay evidence lacks credibility merely based on the absence of any contemporaneous medical evidence such as actual treatment records). See, too, Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (indicating medical evidence is not always or categorically required to support a claim, and that the type and amount of evidence required - medical versus lay - is dependent on the type of condition at issue). Noting that the Veteran approximates, but does not fully meet, the criteria for a 30 percent rating, the Board also points out that the criteria for a rating higher than 30 percent are neither approximated nor met during this time period. The Veteran's GAF scores depict only moderate symptoms, at most. Furthermore, the Veteran does not exhibit symptoms of flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory; impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Although the Veteran stated that his anxiety strained his occupation and marriage, he is still able maintain his relationship with his family. Therefore, at no time does the evidence support assigning a higher 30 percent rating, so the Board cannot further "stage" this rating. See Fenderson, 12 Vet. App. at 125-26. Based on the evidence above, the Board finds that the severity of the overall disability approximates a 30 percent rating for the Veteran's anxiety disorder. As shown by the evidence, the Veteran exhibits symptoms of depressed mood, anxiety, nightmares, flashbacks and panic attacks. He has been noted to have problems with occupational functioning and anxiety symptoms of irritability, recurrent nightmares, hypervigilance, and avoiding stimuli associated with his in-service trauma, and mildly impaired concentration and attention. The Board also finds that his symptoms were fairly consistent during the appellate period; therefore, the 30 percent rating is granted for the entire appellate period. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that the rating criteria contemplate the symptomatolgy as reported by the Veteran concerning his anxiety disorder. The Veteran has reported pain, missing work, and only one trip to the emergency room, all of which are contemplated by the schedular rating criteria of Diagnostic Code 9413. Therefore, the rating criteria are therefore adequate to evaluate the Veteran's anxiety disorder and referral for consideration of extraschedular rating is not warranted. ORDER An initial 30 percent rating for anxiety disorder is granted, subject to the law and regulations governing the payment of VA monetary benefits. REMAND As noted in the Introduction, the record raises a claim for entitlement to TDIU as the Veteran has asserted that he is unemployable due to his anxiety disorder. Rice v. Shinseki, 22 Vet. App. 447 (2009). Specifically, the Veteran's wife submitted a statement indicating that the Veteran has been unable to work for longer than 10 months at a time since his separation from service in 2010. Additionally, a September 2012 VA treatment record notes the Veteran was not employed at that time. A TDIU is governed by 38 C.F.R. § 4.16, providing that such a rating may be assigned where the schedular rating is less than total, and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. As a result of this decision, the Veteran now has a 30 percent disability rating for his general anxiety disorder. This is his only service-connected disability and, therefore, does not satisfy schedular criteria set forth in 38 C.F.R. § 4.16(a) (2013). Although the percentage requirements are not met, entitlement to benefits on an extraschedular basis may also be awarded when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, and consideration is given to the Veteran's background including employment and educational history. 38 C.F.R. §4.16(b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to a veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2013). Therefore, the Board finds that further development is necessary for a fair adjudication of the Veteran's TDIU claim. In this regard, upon remand, the AOJ should conduct all appropriate development, to include providing the Veteran with VCAA-compliant notice as to a TDIU, obtaining outstanding treatment records, and obtaining an opinion regarding the effect the Veteran's service-connected disability has on his employability. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). In this regard, the Board notes that unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). Finally, on remand, any additional VA treatment records dated after September 2012 should be obtained. See 38 U.S.C.A. § 5103A(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c)(2); Bell v. Derwinski, 2 Vet. App. 611 (1992); see also Stefl v. Nicholson, 21 Vet. App. 120, 125 (2007) (an adequate VA medical examination must consider the Veteran's pertinent medical history). Accordingly, the case is REMANDED for the following action: 1. Send the Veteran VCAA notice to inform him of the information needed to substantiate a claim of entitlement to TDIU. 2. Contact the Veteran and his representative and request that they provide sufficient information, and if necessary, authorization, to enable the AOJ to obtain any additional evidence pertinent to the claims on appeal. After securing the necessary authorizations for release of this information, the AOJ should seek to obtain copies of all records referred to by the Veteran not already of record, specifically from any private physicians or any relevant VA treatment records dated since September 2012 relevant to the claim of entitlement to a TDIU. The AOJ must make at least two requests to any custodian of private records in an effort to obtain such records, unless it is made evident by the first request that a second request would be futile in obtaining such records. Any negative response should be in writing and associated with the claims file. 3. Notify the Veteran that he may submit lay statements from himself and from individuals who have first-hand knowledge, and/or were contemporaneously informed of any occupational impairment caused by his psychiatric disability. The Veteran should be provided a reasonable amount of time to submit this lay evidence. 4. Afford the Veteran an appropriate VA examination, to be conducted, if possible, by a VA vocational specialist, to ascertain whether it is at least as likely as not that the Veteran's psychiatric disability renders him unable to secure or follow a substantially gainful occupation. The claims folder must be provided to and reviewed by the examiner. The examiner must opine as to whether it is at least as likely as not that the Veteran's psychiatric disability, without regard to his age or the impact of any nonservice-connected disabilities, renders him unable to secure or follow a substantially gainful occupation given the individual Veteran's education, training, and work history. educational background. All findings and conclusions should be set forth in a legible report. 5. Thereafter, the Veteran's claims should be readjudicated. If the claim remains denied, the Veteran should be provided with a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board for further appellate review. 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). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs