Citation Nr: 1336075 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 13-14 036 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a bilateral hearing loss disability. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Rutkin, Joshua M. INTRODUCTION The Veteran served on active duty from August 1978 to May 1990 and from January to August 1991. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran does not have sufficient hearing loss in either ear to be considered a ratable disability for VA compensation purposes, so there is no current disability to relate or attribute to his military service - including even to repeated exposure to excessively loud noise and consequent injury (acoustic trauma). 2. His tinnitus, however, is the result of that acoustic trauma during his service. CONCLUSIONS OF LAW 1. It is not shown he has a ratable bilateral hearing loss disability, much less because of disease or injury incurred in or aggravated by his active military service or that may be presumed to have been incurred in service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385 (2013). 2. But his tinnitus was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In deciding these claims, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses only on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). I. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000) (codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002), sets forth VA's duties to notify and assist claimants in substantiating claims for VA benefits. See 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2013). The Veteran's claim of entitlement to service connection for tinnitus is being granted, for the reasons and bases discussed below. Therefore, the Board need not also discuss whether there has been compliance with the duty-to-notify-and-assist obligations, at least as concerning this particular claim. This is because, even were the Board to assume, for the sake of argument, there has not been, it would be inconsequential and therefore, at most, amount to nonprejudicial, i.e., harmless error. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). See also 38 C.F.R. § 20.1102. And with regards to the remaining claim of entitlement to service connection for bilateral (left and right ear) hearing loss, all duty-to-notify-and-assist obligations have been satisfied. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his 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); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court/CAVC) 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 obtain; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). See also Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). For service-connection claims, proper notice of what is necessary to substantiate the claim requires that the Veteran be informed of the following five elements: (1) Veteran status; (2) existence of a disability; (3) a connection between his service and the disability; but also regarding the "downstream" (4) degree of disability, i.e., disability rating; and (5) effective date in the eventuality service connection is granted. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484 (2006); Quartuccio, 16 Vet. App. at 187. All notice under the VCAA generally should be provided prior to an initial decision on a claim by the RO as the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, a delay in timing of the notice is "cured," and therefore harmless, when notice is followed by readjudication of the claim (such as through issuing a Statement of the Case (SOC) or Supplemental SOC (SSOC)) after the claimant has had an opportunity to submit additional evidence or argument in response to the notice since this preserves the intended purpose of the notice inasmuch as he is still given opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). VCAA notices errors, even when shown to have occurred, are not presumptively prejudicial, rather, must be judged on a case-by-case basis. And as the pleading party attacking the agency's decision, the Veteran, not VA, has this burden of proof of not only establishing error, but, above and beyond that, showing how it is unduly prejudicial, meaning outcome determinative of the claim. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). Here, prior to the initial rating decision in this matter, a January 2010 letter notified the Veteran of the elements of service connection, including as concerning the "downstream" degree of disability and effective date elements, and also informed him of his and VA's respective responsibilities for obtaining relevant records and other evidence in support of his claim. Therefore, the duty to notify has been satisfied. See 38 C.F.R. § 3.159(b); Dingess/Hartman, 19 Vet. App. at 484; Quartuccio, 16 Vet. App. at 187. VA's duty to assist includes helping the claimant to obtain service treatment records (STRs) and other pertinent records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). Here, the Veteran's STRs and post-service VA treatment records are in the claims file for consideration. He has not identified any other records or evidence that he wished to submit or have VA obtain. Thus, the duty to obtain relevant records has been satisfied. See id. The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. §§ 3.159(c)(4), 3.326(a). See also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume that the examination report and opinion are adequate, and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-1291 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. But even when this is called into question or challenged, the Board may assume the competency of any VA medical examiner, including even nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), the examiner is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Here, the RO provided the Veteran an audiological examination in June 2010. The VA examination is adequate for deciding this claim for bilateral hearing loss. Specifically, the examiner reviewed the claims file and medical history, performed an audiological examination, and provided an explanation for the opinion stated enabling the Board to make a fully informed decision concerning this claim. See Monzingo v Shinseki, 26 Vet. App. 97, 107 (2012) (holding that "examination reports are adequate when, as a whole, they sufficiently inform the Board of a medical expert's judgment on a medical question and the essential rationale for that opinion" even when the rationale does not explicitly "lay out the examiner's journey from the facts to a conclusion") (citing Acevedo v. Shinseki, 25 Vet. App. 286, 293 (2012) (noting that the law imposes no reasons-or-bases requirement on examiners)); see also D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). Accordingly, VA's duty to provide a VA examination is satisfied. 38 U.S.C.A. §5103A(d)(2); 38 U.S.C.A. § 38 C.F.R. §§ 3.159(c)(4); 3.326(a); McLendon, 20 Vet. App. at 83; Barr, 21 Vet. App. at 312. The Board sees that, in a statement received in April 2013, the Veteran asserted that there was a "conflict of interest" because the VA examination was performed at the VA facility where he was employed at the time. However, the examination report shows the examination was in fact performed at a different facility, thus refuting his reason for questioning the viability of the examination or its findings. Moreover, he has not otherwise met his burden of showing that the examination was deficient in any way or unduly compromised. See Shinseki v. Sanders 556 U.S. 396, 407, 410 (2009) (holding that, under the rule of prejudicial error, it is the burden of the claimant to show harmful error); see also Sickels, 643 F.3d at 1365-66 (holding that the initial burden is on the claimant to show that an examination was inadequate); accord Rizzo, 580 F.3d at 1290-1291. Merely because an examination occurs at a given location is not reason, alone, to doubt its veracity. Therefore, further examination merely based on an unsubstantiated allegation is unwarranted. In sum, VA's duties to notify and assist under the VCAA have been satisfied. The Veteran has had ample opportunity to participate in the development of his claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . . must be considered prejudicial")). Any defect in the notice or assistance provided did not affect the outcome of this claim or compromise the "essential fairness of the adjudication." See Mayfield, 19 Vet. App. at 116. Thus, any error in the notice or assistance provided was harmless, and no prejudice exists. See Sanders, 556 U.S. at 407; see also 38 U.S.C.A. § 7261(b)(2) (West 2002) (providing that due account must be taken of the rule of prejudicial error). Accordingly, the Board may proceed with appellate review. II. Analysis The Veteran claims entitlement to service connection for a bilateral hearing loss disability and tinnitus, which he contends were caused by hazardous noise exposure and resulting acoustic trauma during his active service. For the following reasons, the Board finds that service connection is warranted for tinnitus. However, service connection for a bilateral hearing loss disability is not warranted, as he does not have a ratable hearing loss disability involving either ear. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active military service in the line of duty. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge when the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). Entitlement to service connection may be established on a direct basis with evidence showing (1) the existence of a current disability; (2) in-service incurrence or aggravation of a relevant disease or an injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service (the "nexus" requirement). See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). For the chronic diseases listed in 38 C.F.R. § 3.309(a) (2013), including sensorineural hearing loss as an organic disease of the nervous system, the evidentiary requirements for establishing entitlement to service connection benefits are more relaxed. Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012) (holding that "[t]he clear purpose of [subsection 3.303(b)] is to relax the requirements of § 3.303(a) for establishing service connection for certain chronic diseases," and only applies to the chronic diseases set forth in § 3.309(a)). Specifically, § 3.303(b) provides that when a chronic disease is established during active service, then subsequent manifestations of the same chronic disease at any later date, however remote, will be entitled to service connection, unless clearly attributable to causes unrelated to service ("intercurrent causes"). If the evidence is not sufficient to show that the disease was chronic at the time of service, then the claim may be established with evidence of a continuity of symptoms after service, which is a distinct and lesser evidentiary burden than the nexus element of the three-part test under Shedden. C.F.R. § 3.303(b); Walker, 708 F.3d at 1338-39 (observing that a claim for a chronic disease "benefits from presumptive service connection . . . or service connection via continuity of symptomatology"). Showing a continuity of symptoms after service itself "establishes the link, or nexus" to service and also "confirm[s] the existence of the chronic disease while in service or [during a] presumptive period." Walker, 708 F.3d at 1338-39. In addition, where a Veteran served continuously for 90 days or more during a period of war, or during peacetime service after December 31, 1946, service connection for sensorineural hearing loss as an organic disease 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 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307; 3.309(a). This presumption may only be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). With regards to hearing loss, impaired hearing is considered a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Court has held that the threshold for normal hearing is from 0 to 20 decibels, and that higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). But the auditory thresholds set forth in 38 C.F.R. § 3.385 establish when hearing loss is severe enough to be considered an actual ratable disability eligible for service connection. Hensley at 157, 159. It therefore is possible to have hearing loss, just insufficient hearing loss to satisfy the threshold minimum requirements of 38 C.F.R. § 3.385 to be considered an actual ratable disability by VA standards. And absent this required proof of sufficient hearing loss to be considered an actual ratable disability, there necessarily cannot be any attribution of this, for all intents and purposes, nonexistent disability to the Veteran's service. The June 2010 VA examination report shows that audiological testing yielded puretone thresholds for the left ear, in decibels (dB), of 15 dB at 500 Hertz, 5 dB at 1000 Hertz, 10 dB at 2000 Hertz, 25 dB at 3000 Hertz, and 20dB at 4000 Hertz. Puretone thresholds for the right ear were 10 dB at 500 Hertz, 10 dB at 1000 Hertz, 10dB at 2000 Hertz, 20 dB at 3000 Hertz, and 15 dB at 4000 Hertz. Speech recognition testing, using the Maryland CNC word list, was 100 percent for both ears. The examining audiologist found that the Veteran had normal hearing bilaterally. The Board finds the Veteran has not had disabling hearing loss at any time during the pendency of this claim. In this regard, the audiological testing results in the June 2010 VA examination report do not meet the criteria for a ratable hearing loss disability as defined in section 3.385 of the VA regulation. The Veteran has not argued that he has been diagnosed with hearing loss or that audiological testing not of record has shown worse hearing acuity than that recorded in the June 2010 VA examination report. While he is competent to report subjective hearing loss, he is not competent to determine whether it is disabling for VA compensation purposes, as this is not a matter of lay observation but rather can only be established through objective clinical testing - namely, by way of an audiogram and Maryland CNC speech discrimination test. See 38 C.F.R. § 3.385; see also See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007)( observing that a layperson can be competent to identify conditions that are simple, such as a broken leg, but is not competent to identify more complex conditions such as a form of cancer); Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (holding that lay testimony is competent as to matters capable of lay observation, but not with respect to determinations that are "medical in nature"); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (holding that in order for testimony to be probative of any fact, the witness must be competent to testify as to the facts under consideration, and that lay testimony is not competent to prove that which would require specialized knowledge, training, or medical expertise). Moreover, the Board accords more weight to the VA audiological examination report than to the Veteran's lay statements in support of his claim. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the medical issue in question). The most fundamental requirement for any claim for service connection is that the Veteran must have proof he has the condition claimed. See Degmetich v. Brown, 8 Vet. App. 208 (1995); 104 F.3d 1328 (1997) (indicating VA compensation only may be awarded to an applicant who has disability existing on the date of application, not for past disability); but see, too, McClain v. Nicholson, 21 Vet. App. 319 (2007) (further clarifying that this requirement of current disability is satisfied when the claimant has the disability at the time the claim for VA disability compensation is filed or during the pendency of the claim and that a claimant may be granted service connection even though the disability resolves prior to VA's adjudication of the claim). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in actual disability. Brammer v. Derwinski, 3 Vet. App. 223 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998). A current disability means a disability shown by competent and credible evidence to exist. Chelte v. Brown, 10 Vet. App. 268 (1997). Here, because the evidence does not show a current ratable hearing loss disability in either ear during the pendency of this claim, service connection is not warranted. See 38 C.F.R. § 3.385; see also Shedden, 381 F.3d at 1166-67 (holding that entitlement to service connection requires, among other things, evidence of a current disability); Degmetich v. Brown, 104 F. 3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). With regard to tinnitus, this disorder is defined as "a noise in the ears such as ringing, buzzing, roaring, or clicking." Smith v. Principi, 17 Vet. App. 168, 170 (2003) (quoting DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1714 (28th ed. 1994)). It is generally subjective in type. Id. Because tinnitus is subjective, its existence is generally determined by whether the Veteran claims to experience it. Thus, for VA purposes, tinnitus is a disorder with symptoms that can be identified through lay observation alone. Barr v. Nicholson, 21 Vet. App. at 309; Charles v. Principi, 16 Vet. App. 370 (2002). Accordingly, the Veteran's competent and credible report of having tinnitus, including at time of his June 2010 VA examination, establishes he has this disorder. The Board therefore need only determine how long he has had it, in particular, whether since his service, or whether it is otherwise related or attributable to his service - especially to the acoustic trauma he claims to have sustained during his service. 38 C.F.R. § 3.303(d). The Board finds that his tinnitus indeed was caused by in-service noise exposure and consequent injury (acoustic trauma). He served as a cannoneer and cannon crewman, as well as in other capacities, during his first period of active service. This military occupational specialty (MOS) has been determined by the Department of Defense (DoD) to involve a high probability of hazardous noise exposure. See Duty MOS Noise Exposure Listing; see also VA Fast Letter 10-35 (September 2, 2010). He also supported combat operations in Kuwait during Operation Desert Shield/Desert Storm, for which he received the Kuwait Liberation Medal and the Southwest Asia Service Medal with one bronze star, among other citations and decorations. Accordingly, hazardous noise exposure during active service is established. See 38 U.S.C.A. § 1154(a) (West 2002) (providing that due consideration must be given to the places, types, and circumstances of a Veteran's service). During the June 2010 VA examination, he stated that his tinnitus had been present for many years, but was unsure of the exact date of onset. He reported military noise exposure nonetheless from aircraft engines and artillery. He stated that hearing protection was rarely used. He also reported civilian noise exposure from trucks and sirens for thirty years as a medical provider for an emergency response team. The examiner opined that it was less likely than not that the Veteran's tinnitus was related to military noise exposure. The examiner explained that individuals who have been exposed to high levels of noise will typically report tinnitus, but that there was no documentation of tinnitus in the claims file and the Veteran was unsure of its onset. The examiner also noted the Veteran's history of civilian noise exposure. In a statement received by VA in April 2013, so since, the Veteran argued that his civilian noise exposure was comparatively minimal, as his employment involved working in hospitals and primary care clinics, where he was not exposed to high levels of noise. By contrast, during over fifteen years of service in the Army, he was exposed to high explosive artillery rounds, rifles, machine guns, and grenade and rocket launchers. Resolving all reasonable doubt in his favor, the Board finds that his tinnitus was caused by military noise exposure. According to the VA examiner, individuals exposed to high levels of noise "typically" report tinnitus. The examiner's main reasons for finding against a relationship to service were the lack of documentation of tinnitus in the claims file and the fact that the Veteran was unsure of its onset. However, the Veteran's assertions of having tinnitus for "many years" are both competent and credible, and it is not necessary that he have been treated for this disorder or that it otherwise have been documented. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). This is just a consideration in determining its existence at a particular point in time, not altogether dispositive. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (holding that an examination was inadequate where the examiner did not comment on the Veteran's report of in-service injury and instead relied entirely on the absence of evidence in the STRs to provide a negative opinion). Moreover, there is probative evidence that the Veteran's in-service noise exposure was significantly greater and more extensive than his civilian noise exposure, as explained by him. Thus, notwithstanding the VA examiner's opinion, the balance of the evidence supports a relationship between the Veteran's in-service noise exposure and his tinnitus. See Hayes v. Brown, 5 Vet App 60 (1993) (holding that VA is not bound to accept any opinion from a VA examiner, private physician, or other source concerning the merits of a claim). Therefore, the nexus element has been met. See Shedden, 381 F.3d at 1166-67. In summary, the evidence is at least in equipoise with regard to the Veteran's tinnitus claim. Therefore, the benefit-of-the-doubt rule applies, and service connection for tinnitus is granted. See 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. An "absolutely accurate" determination of etiology is not a condition precedent to granting service connection, nor is "definite" or "obvious" etiology. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). However, conversely, the preponderance of the evidence is against the Veteran's claim for a bilateral hearing loss disability. To reiterate, the fact that he has not first established he has this alleged disability is fundamental reason to deny this claim because there resultantly and necessarily cannot be any relationship between this nonexistent disability and his military service. Consequently, the benefit-of-the-doubt rule does not apply, and service connection for a hearing loss disability in either ear must be denied. See id. ORDER The claim of entitlement to service connection for a bilateral hearing loss disability is denied. However, the claim of entitlement to service connection for tinnitus is granted. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs