Citation Nr: 1335182 Decision Date: 11/01/13 Archive Date: 11/13/13 DOCKET NO. 05-28 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in North Little Rock, Arkansas THE ISSUES 1. Entitlement to service connection for a neck disability. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) as due to the service-connected low back disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from May 1975 to May 1981 and from August 1981 to March 1987. These matters come before the Board of Veterans' Appeals (Board) on appeal of a September 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in North Little Rock, Arkansas that in relevant part increased the rating for the service-connected low back disability from 0 percent to 10 percent disabling. That decision also denied a claim of entitlement to TDIU. The Veteran did not appeal the denial of TDIU decided in that decision. Also on appeal is a January 2004 rating decision that in relevant part denied service connection for neck trauma. In September 2006 the Veteran testified before the undersigned Veterans Law Judge in a hearing at the RO ("Travel Board" hearing). A transcript of the hearing is associated with the claims file. The Board issued a decision in September 2011 that denied increased rating for the service-connected low back disability. The Veteran thereupon appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2012 the Court issued an Order that granted a Joint Motion of the Parties to vacate the Board's decision insofar as the Board had not considered an implicit claim for TDIU (notwithstanding the actual unappealed denial of TDIU). The Joint Motion cited Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009) as support for the basis for remand of this issue. The Joint Motion noted the Veteran had expressly abandoned his appeal for a higher rating for the underlying low back disability. A Board decision in September 2011 remanded the issue of service connection for a neck disability to the Appeals Management Center (AMC) for further development, which has been accomplished. Stegall v. West, 11 Vet. App. 268 (1998). The Board also remanded the issues of entitlement to service connection for diabetes mellitus and a bilateral foot disability, and the RO subsequently granted service connection for those claimed disorders by a rating decision in September 2012; as the claims for service connection were granted, those issues are no longer on appeal before the Board. FINDINGS OF FACT 1. Arthritis of the cervical spine was not shown during service or to a compensable degree within the first year after discharge from service, and a current neck disorder is not etiologically related to service. 2. The Veteran's service-connected low back disability does not render him unable to obtain and maintain gainful employment consistent with his education, training and work experience. CONCLUSIONS OF LAW 1. The requirements for establishing service connection for a neck/cervical spine disability have not been met. 38 U.S.C.A. §§ 1101, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2013). 2. The requirements for a TDIU have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002)) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2013). In this case, appropriate VCAA notice was provided in July 2003 and December 2007 letters. The letters provided notice regarding what information and evidence is needed to substantiate his claims, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The case was readjudicated following the 2007 notice letter, to include in May 2011. In any event, the Veteran has not identified any prejudice due to error in the content or timing of the notice provided, to include when the case was on appeal to the Court. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). Regarding the duty to assist, the RO has obtained service treatment records (STRs), disability records from the Social Security Administration (SSA) and post-service treatment records from those VA and non-VA providers the Veteran has identified as having treatment records that could be relevant to the issues on appeal. In addition, VA examinations have been conducted. The Veteran was afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge (VLJ) who chairs a hearing explain the issues and suggest the submission of evidence that may have been overlooked. Here, the VLJ identified the issues to the Veteran, and the Veteran volunteered his treatment and symptomatology history related to his disabilities. Neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), to include when the case was on appeal to the Court, nor have they identified any prejudice in the conduct of the Board hearing. The hearing focused on the elements necessary to substantiate the claims, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. Neither the Veteran nor his representative has made the RO or the Board aware of any additional evidence that needs to be obtained in order to fairly decide this appeal, and neither has argued that any error or deficiency in the accomplishment of the duty to notify and duty to assist has prejudiced the Veteran in the adjudication of his appeal. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issues to be decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds that duty to notify and duty to assist have been satisfied and will proceed to the merits of the issues on appeal. Entitlement to Service Connection Applicable Legal Principles Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table). Where a veteran served for at least 90 days during a period of war or after January 1, 1947, and manifests arthritis to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where 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; 38 C.F.R. § 3.102; see also 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), citing Gilbert, 1 Vet. App. at 54. The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on her behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Evidence and Analysis Service treatment records (STRs) show no indication of a traumatic neck injury in service. In June 1986 the Veteran complained of headaches, but examination of the neck/cervical spine on that occasion was normal. STRs show numerous complaints of low back (thoracolumbar spine) pain but do not show any complaint or treatment related to the cervical spine. In a self-reported Report of Medical History in February 1987 the Veteran reported "arthritis of the neck ... as reported by civilian doctors" but the corresponding Report of Medical History shows clinical evaluation of the spine as "normal." A treatment note from Cabot Chiropractic Clinic in December 1986, while the Veteran was still in active service, states the Veteran had complained of symptoms including coldness in the neck. Examination showed irritation in the left neck and shoulder area. X-ray showed the cervical spine to be listing to the right with definite loss of the lordotic cervical curve. No specific diagnosis of cervical spine pathology is shown in these chiropractic records. The Veteran was discharged from service in March 1987. Treatment records from Dr. Daugherty show the Veteran presented in 1993 complaining of having hurt his neck and lower back while picking something up. In 1994 he complained on two occasions of neck and back pain. In 1995 he complained of having hurt his neck on the left side while picking up a refrigerator. In May 2001 the Veteran complained of pain in the back, neck, legs, feet and shoulders since November 2000, when he fell from an 18-wheeler (also described as an 18-wheeler accident in which the Veteran was hit from behind). The treatment records from Dr. Daugherty are silent in regard to any diagnosed cervical spine pathology. The Veteran testified before the Board in September 2006 that his chiropractor had told him in October 1986 that he had arthritis in two places in his neck. The Veteran attributed his musculoskeletal problems, including recurrent neck pain, to a fall in service in 1976. The Veteran had a VA examination in February 2008, performed by a physician who reviewed the claims file. The Veteran recounted having fallen into a hole in 1976 during service; at the time he mainly complained of having twisted his knees but the Veteran reported having also injured his back and neck. The examiner noted range of motion (ROM) of the neck and neurological findings; X-ray of the cervical spine showed "rather significant" degenerative change, particularly in the lower half, with some spurring. The examiner diagnosed cervical spondylosis with DDD at C6-7, not related to service since the Veteran was asymptomatic until recent years regarding the neck. The Veteran had a VA examination of the cervical spine in November 2011. He reported having had some neck pain after falling into the hole in 1976 but admitted he was not treated in service for neck problems. X-rays in 2008 showed DDD. The Veteran complained of pain, stiffness and popping in the neck. The examiner examined the Veteran's neck and recorded clinical observations in detail. The examiner diagnosed DDD. The examiner stated an opinion that because of the absence of treatment for the neck during service, and the long hiatus without treatment after discharge from service, it is less likely than not that the Veteran's neck condition is related to service. Review of the file shows the Veteran is diagnosed with DDD of the cervical spine; accordingly, the first element of service connection - medical evidence of a disability - is met. However, a veteran seeking disability benefits must establish not only the existence of a disability, but also an etiological connection between his military service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). The Board finds at the outset that the Veteran is shown to have fallen into a hole in service in 1976, but there is no evidence in STRs of any resultant complaint of neck pain. The Veteran asserts retrospectively that he had intermittent neck pain during service, but there is simply no indication that he had onset of a chronic neck/cervical spine disorder in service, as demonstrated by the normal separation examination. Evidence of continuity of symptoms is for consideration in regard to disorders recognized as "chronic" under 38 C.F.R. § 3.309(a); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran asserts he was diagnosed with arthritis of the neck during service, even though such diagnosis is not documented, but his assertion is disproved by the X-ray report associated with treatment records from Cabot Chiropractic Clinic, which does not show an impression of current arthritis. Further, there is no documentation of degenerative process until 2008, which is more than 20 years after discharge from service and after several intervening neck traumas as documented in records from Dr. Daugherty. The Board accordingly finds that arthritis of the neck was not shown in service or to a compensable degree within the first year after discharge from service. Having found that the Veteran's disability of the neck/cervical spine had its onset after discharge from service, the Board turns to the question of whether such disability is etiologically related to service. While the Veteran believes his current cervical spine disability is related to service, his lay opinion on this matter is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the etiology of a cervical spine disorder is a complex medical question, particularly when the record demonstrates there have been multiple traumas between discharge from service and the first actual diagnosis. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Thus, competent medical evidence is needed to address whether the Veteran's cervical spine disability is related to service. In this case, the VA examiner in November 2011 provided an opinion that the Veteran's claimed disability is not related to service. The examiner reviewed the claims file and provided an adequate rationale for the conclusion reached which is consistent with the record. Thus, this opinion is entitled to great probative weight. There is no competent medical opinion to the contrary. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). As the most probative evidence indicates the Veteran did not have arthritis of the cervical spine during service or within one year following discharge from service, and that his current cervical spine/neck disability is not related to his military service, the Board finds the preponderance of the evidence is against the claim. Accordingly, the criteria for service connection are not met and the claim must be denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. Entitlement to TDIU Applicable Legal Principles VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability or one 40 percent disability, disabilities of one or both lower extremities (including the bilateral factor) will be considered as one disability. 38 C.F.R. § 4.16(a)(1). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for a TDIU rating, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. 4.16(a). Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. Evidence and Analysis As noted above, the September 2003 rating decision denied entitlement to a TDIU and the Veteran did not appeal the denial of that issue. Notwithstanding that denial, the Joint Motion noted that the issue of entitlement to a higher initial rating for the lumbar spine disability included the question of whether a TDIU was warranted based on that disability. Since the 2003 rating decision, the Veteran has since been awarded service connection for multiple disabilities, and his combined evaluation has been increased to 100 percent, effective June 24, 2003. Thus, the only question before the Board is whether the Veteran's low back disability, alone, renders him unemployable. The Veteran's service connected lumbar spine disability is evaluated as 10 percent disabling from June 24, 2003 and 20 percent disabling from October 26, 2009. The appeal for higher ratings was denied by the Board in September 2011 and was not challenged on appeal to the Court. Accordingly, the Veteran does not meet the percentage requirements under 38 C.F.R. § 4.16(a) for a TDIU based on his back disability. Moreover, upon review of the record, the Board does not find that the case should be submitted for extra-schedular consideration. The Veteran had a VA examination in September 2003 that included the lower back. The Veteran described low back pain since 1976 but stated he was not on medication for back pain, had not been hospitalized for a back condition and had not consulted a physician regarding back problems within the past five years. He denied a history of back surgery and denied incapacitating episodes within the past year, but complained of symptoms radiating down the right leg. Examination showed normal gait and normal spinal curve; there was some limitation of motion of the lumbar spine due to pain but no neurologic deficit in the lower extremities and no indication of degenerative joint disease (DJD) or degenerative disc disease (DDD). The examiner diagnosed mechanical low back pain. The September 2003 and January 2004 rating decisions on appeal denied entitlement to a TDIU because the Veteran had not submitted a formal claim for TDIU and had not demonstrated the he was unable to pursue employment due to his service-connected disabilities. The Veteran did not appeal the denial of TDIU. The file contains a January 2005 letter from Dr. Daugherty addressed "To Whom It May Concern" and attesting that the Veteran was unable to engage in gainful employment due to medical problems including diabetes with peripheral neuropathy and painful ankles and knees. Dr. Daugherty recommended evaluation through the Social Security system. The file contains a March 2005 examination report titled State of Arkansas Disability Determination for Social Security Administration. The Veteran's alleged impairments were diabetes mellitus, herniated disc, knee injuries, neuropathy, joint pain, arthritis, vision and sinus. The examiner's diagnosis was diabetes, diabetic polyneuropathy, osteoarthritis of the bilateral knees and chronic backache. The file also contains a Social Security Administration (SSA) Functional Capacity Assessment performed in June 2005. The examiner stated the Veteran could occasionally lift up to 50 pounds and frequently lift up to 25 pounds. The Veteran could stand/walk and could sit about 6 hours of an 8-hour workday. The Veteran had limited ability to push/pull in the upper extremities. The Veteran had no postural limitations. The primary diagnosis was diabetes mellitus; no secondary diagnosis was shown. The Social Security Administration (SSA) issued a decision in January 2007 that granted disability benefits effective from October 1, 2005. The grant was based on diabetes mellitus (primary diagnosis) and osteoarthrosis and allied disorders (secondary diagnosis). Per the Procedural History of the SSA disability, disability was based in part on the Veteran's advanced age. He was noted to have had 14 years of education. His vocational background was as a gas station cashier (unskilled work at the light exertional level); mobile home salesperson, appliance salesperson and jewelry salesperson (semi-skilled work at the light exertional level); cemetery lot salesperson (skilled work at the light exertional level); truck driver (semi-skilled work at the medium exertional level); realtor (skilled work at the sedentary exertional level); and, police officer (skilled work at the medium exertional level). The Veteran was considered to be vocationally impaired due to diabetes mellitus with severe neuropathy in the bilateral upper and bilateral lower extremities, diabetic retinopathy affecting vision in both eyes, hypertension, bilateral knee disorders with multiple surgeries, DDD with herniated disc at L5-S1 and severe osteoarthritis affecting the back, hips, knees and ankles and causing chronic severe pain, and gastroesophageal reflux disease with esophagitis productive of intractable nausea and vomiting. As a result of all the symptoms, limitations and restrictions caused by his combination of impairments including chronic severe pain and adverse side effects from required strong medication, the Veteran was unable to maintain concentration, persistence or pace to engage in sustained work activity on a regular daily basis and therefore did not have the ability to consistently perform the tasks of a job during an 8 hour workday or 40 hour workweek. This substantially eroded residual functional capacity significantly eroded the occupational base of jobs available to the Veteran at all exertional levels. The Veteran testified before the Board in September 2006 that he had constant sharp low back pain, increased by prolonged standing. He did not take any kind of pain medication; when pain became unbearable he would go to his chiropractor for an adjustment. His physician had recommended he stop working because he was unable to stand for eight hours. The Veteran explained that his training was in police field and sales, which required standing on a sales floor for eight hours, but doing so would cause his knees to "blow up as big as basketballs." The Veteran did not know what else he could do. SSA reopened the Veteran's claim in October 2007 and noted the Veteran had been employed during the period June 2006 to February 2007, but he was unable to keep up with work requirements. The SSA Administrative Law Judge determined the cited period of employment constituted trial work and continued the Veteran's SSA disability effective from October 1, 2005. The Veteran had a VA examination in February 2008, performed by a physician who reviewed the claims file. The Veteran recounted having last worked in 1996, at a convenience store, and had mainly not worked since then because of his low back. The Veteran was observed to walk with a normal gait and was able to rise from a chair without difficulty, although squatting caused gagging and groaning. Neurological examination showed normal reflexes and motor strength; sensation was normal except the forefeet. The Veteran had another VA examination in October 2009, performed by the same physician who had performed the February 2008 examination cited above. The examiner again reviewed the claims file. The Veteran had not complained of his back in the previous examination, but he now complained of back discomfort. He denied taking pain medication and denied having bowel or bladder incontinence. The Veteran was observed to walk with a normal gait and to rise from a chair without difficulty. Motor and reflex examinations were grossly intact and sensory was remarkable only for hypoesthesia in the plantar surfaces of the feet and lateral calves. The Veteran had erect posture; ROM was accompanied by some spasm. X-ray of the lumbar spine showed DDD at multiple levels with some spondylosis and straightening of lordosis. The examiner diagnosed chronic lumbar sprain with DDD, spasm and early spondylosis. Because the Veteran did not work the examiner did not provide an assessment of occupational impairment related to the back disability. The Veteran had a VA examination of the cervical spine in November 2011 in which he reported having quit work in 2007 due to knee, low back and blood pressure. Review of the evidence above shows that Dr. Daugherty noted the Veteran to be unemployable since at least January 2005. However, such unemployability is shown to be due to a combination of his service-connected disabilities, as supported by medical documents associated with SSA disability records. The Board finds no basis on which to conclude that the Veteran's service-connected low back disorder, alone, would render him unemployable. The Veteran reported to the VA examiner in February 2008 that he had not worked since 1996 mainly because of his low back, but examination showed minimal impairment of function. Moreover, such statement is contradicted by information from SSA noting employment since that time. In October 2009 the Veteran complained of increased pain since the last examination but again demonstrated minimal functional impairment on examination. The Veteran has not asserted, and the evidence of record does not show, that he had any incapacitating episodes associated with his low back disability. The Veteran has consistently denied taking any medication for back pain, so the adverse side effects due to strong medication that were noted in the SSA disability grant cannot refer to the low back disability. In consideration of the Veteran's symptoms as demonstrated on examination, and in consideration of the Veteran's educational and vocational background as demonstrated in SSA records, the Board does not find the Veteran's service-connected low back disability, in and of itself, to be of such severity as to preclude gainful employment. For example, the Veteran had previous work experience as a realtor in which he performed skilled work at the sedentary exertional level; there is no indication why his low back disability, alone, would preclude him from returning to that or similar work. In sum, the Board finds that the Veteran's service-connected low back disability, alone, does not render him unable to obtain and maintain gainful employment consistent with his education, training and work experience. Accordingly, the criteria for TDIU are not met, referral for extra-schedular consideration is not required, and the claim is denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER Service connection for a neck disorder is denied. Entitlement to a TDIU is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs