Citation Nr: 1337349 Decision Date: 11/15/13 Archive Date: 11/26/13 DOCKET NO. 10-34 877 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for left and right shoulder disorders, including arthritis. 2. Entitlement to service connection for left and right knee disorders, including arthritis. REPRESENTATION Appellant represented by: Christopher J. Boudi, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his wife ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from January 1968 to December 1969. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana, that, in pertinent part, denied service connection for arthritis of the bilateral shoulders, knees, and ankles. In November 2009, the Veteran testified during a personal hearing at the RO. A transcript of the hearing is of record. In August 2012, the Board remanded the Veteran's case to the RO via the Appeals Management Center (AMC) in Washington, D.C., for further evidentiary development. Then, in a January 2013 rating decision, the AMC granted service connection for left and right ankle calcaneal enthesopathy. The AMC's action represents a full grant of the benefits sought as to the Veteran's claim for service connection for left and right ankle disorders. Thereafter, in August 2013, the Board requested a medical opinion, pursuant to 38 U.S.C.A. § 7109 and as set forth in a designated Veterans Health Administration (VHA) Directive, in response to the Veteran's claim of entitlement to service connection for bilateral shoulder and knee disorders, including arthritis. See 38 U.S.C.A. § 7109(a) (West 2002) and 38 C.F.R. § 20.901 (2013). See generally Wray v. Brown, 7 Vet. App. 488, 493 (1995). A VHA medical opinion was rendered in September 2013. In September 2013, the Veteran was given an opportunity to present additional argument, though none was submitted. Finally, in the Introduction to its August 2012 remand, the Board noted that the issue of entitlement to service connection for diffuse idiopathic skeletal hyperostosis (DISH) was raised by the record and referred the matter to the agency of original jurisdiction (AOJ) for appropriate action. However, it does not appear that the AOJ has yet considered the issue and it is, again referred for appropriate development and adjudication. Further, in a May 2013 written statement, the Veteran's attorney at the time raised a claim of entitlement to an increased rating for posttraumatic stress disorder (PTSD) (service connection for PTSD was granted an April 2011 rating decision). This matter is also referred to the AOJ for appropriate action. FINDINGS OF FACT 1. A preponderance of the evidence is against a finding that the Veteran has a bilateral shoulder disorder, to include arthritis, that had its clinical onset in or is otherwise related to active service; arthritis was not manifested to a compensable degree within one year of his discharge from active service. 2. A preponderance of the evidence is against a finding that the Veteran has a bilateral knee disorder, to include arthritis, that had its clinical onset in or is otherwise related to active service; arthritis was not manifested to a compensable degree within one year of his discharge from active service. CONCLUSIONS OF LAW 1. The criteria for an award of service connection for a left and right shoulder disorder, including arthritis, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2013). 2. The criteria for an award of service connection for a left and right knee disorder, including arthritis, have not been met. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Here, the Veteran was sent a letter in March 2008 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. The March 2008 letter provided notice consistent with the holding of the United States Court of Appeals for Veterans Claims (court) in Dingess. Next, VA has a duty to assist the Veteran in the development of his claims. This duty includes assisting him 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. All reasonably identified and available VA and non-VA medical records were obtained. A review of the Veteran's Virtual VA electronic file shows VA treatment records, dated to August 2012, also considered by the Board in the claims for service connection for bilateral shoulder and knee disorders. The purpose of the August 2012 remand was to afford the Veteran a VA examination and obtain any relevant treatment records identified by him including recent VA treatment records. There was substantial compliance with the Board's remand as the Veteran was scheduled for VA examination in October 2012, and VA medical records, dated to August 2012, were obtained. He did not identify any additional relevant medical records. Thereafter, upon review of the record and the October 2012 VA examination report, the Board obtained a VHA opinion regarding the claim of entitlement to service connection bilateral shoulder and knee disorders, including arthritis. A copy of the VHA report was provided to the Veteran in September 2013 and no further argument or evidence was submitted on his behalf. The Board finds that the September 2013 VHA report is adequate for rating purposes as the claims file was reviewed, the examiner considered the pertinent history, provided clinical findings and diagnoses, and offered an etiological opinion with rationale from which the Board can reach a fair determination. Accordingly, the records satisfy the provisions of 38 C.F.R. § 3.326 (2013). The September 2013 VHA report makes up for the deficiencies in the June 2008, January 2009, and October 2012 VA examination reports regarding the service connection claims on appeal. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and non-VA treatment and examinations. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claims. For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Factual Background and Legal Analysis The Veteran asserts that he was diagnosed with arthritis of the knees and shoulders in service and that his currently diagnosed knee and shoulder arthritis had its onset during active service. During his November 2009 personal hearing at the RO, the Veteran testified that he received private medical treatment for arthritis in the latter part of 1970, and within one year after his separation from service. See November 2009 hearing transcript at pages 2, 5, and 6. While there is no evidence of this treatment, as discussed infra, the Board considers the Veteran's statements competent and credible, and concedes that the treatment occurred. Upon review of the evidence of record, and after considering the laws and regulations applicable to the Veteran's claims, the Board finds that service connection is not warranted, as will be discussed below. The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although there is an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant Under 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303, a veteran is entitled to disability compensation for disability resulting from personal injury or disease incurred in or aggravated by active military service. Evidence of continuity of symptomatology from the time of service until the present is required where the chronicity of a condition manifested during service either has not been established or might reasonably be questioned. 38 C.F.R. § 3.303(b); but see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (to the effect that the theory of continuity of symptomatology can be applied only in cases involving those conditions explicitly recognized as chronic under 38 C.F.R. § 3.309(a)). Certain chronic diseases, including arthritis, may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. This is also a direct service connection theory of entitlement. Case law has established that lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the appellant's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). To establish a right to compensation for a present disability, a veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service" - the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). This is a direct service connection theory of entitlement. Where the determinative issue involves medical causation or a medical diagnosis, there must be competent evidence to the effect that the claim is plausible. However, although the Veteran is competent in certain situations to provide a diagnosis of a simple condition such as a headache, varicose veins, or tinnitus, he is not competent to provide evidence as to more complex medical questions, such as the etiology of orthopedic pathology, as is the case here. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Service treatment records show that, in August 1968, the Veteran was evaluated for generalized arthralgia of his knees, ankles, and shoulders. He was diagnosed with "arthritis, chronic?" that was treated with anti-inflammatory medication. In September 1968, he was seen with red, swollen, and erythematous feet, diagnosed as probable cellulitis. On a Report of Medical History completed in October 1969, when the Veteran was examined for separation, he checked yes to having arthritis or rheumatism and the examiner noted a diagnosis of "arthritis knee and shoulders." It is unclear if there was ever x-ray evidence to support this diagnosis. On clinical examination at that time, the Veteran's musculoskeletal system and upper and lower extremities were normal. On a Report of Medical History completed in May 1976, when the Veteran was examined for enlistment into the United States Army Reserve, he denied having arthritis, rheumatism, or bursitis. On clinical examination at that time, his upper and lower extremities and musculoskeletal system were normal. Post service, the evidence includes private medical records from M.T.S., M.D. On December 15, 2003, the Veteran reported a history of muscle pain for two years. He also reported osteoarthritis of the spine since 2002 and a concussion and pneumothorax sustained in a 1974 motorcycle accident. The assessment included probable diffuse idiopathic skeletal hyperostosis, a genetic form of osteoarthritis. A differential diagnosis included myositis and hyperthyroidism. In a January 21, 2004 statement, Dr. M.T.S. noted that the Veteran had right infrapatellar bursitis with swelling and localized tenderness. A June 1, 2004 private record includes a diagnosis of bilateral knee pain and chondromalacia patella. VA medical records, dated from July 2006 to August 2012, describe the Veteran's complaints of joint pain. A July 2006 clinic record includes a diagnosis of osteoarthritis. November 2007 VA medical records show that the Veteran had left knee anterior cruciate ligament (ACL) and medial meniscus tear and underwent arthroscopy. When seen in the VA outpatient rheumatology clinic in April 2008, the Veteran reported hand deformities and knuckle pain for years and denied joint swelling. He reported right big toe impact trauma from a motorcycle accident many years earlier. The Veteran's left knee discomfort markedly decreased after recent arthroscopic meniscectomy. He wore a left ACL brace for a known tear and denied giveway/locking sensation following recent arthroscopic meniscectomy. On examination, there was normal range of motion of both shoulders with mild impingement at the left side. The Veteran's knees were unremarkable with mildly positive anterior Lachman test of the left knee. The assessment included left knee internal derangement: ACL and medial meniscus tears status post medial meniscectomy. In June 2008, the Veteran underwent VA examination. The physician-examiner noted the Veteran's history of fracturing his collar bone twice on the left side in the 1970s, with subsequent left shoulder surgery and involvement in a motorcycle accident in 1974. It was further noted that the Veteran had undergone left knee surgery for removal of a torn meniscus earlier in the year and was found to have a torn ACL. Upon clinical evaluation, the diagnoses included left aromioclavicular joint postoperative changes; minimal right acromioclavicular joint degenerative joint disease; left knee ACL tear and status post surgical treatment of meniscal tear; and unremarkable left knee. The examiner did not provide an opinion regarding the etiology of the Veteran's knee and shoulder disorders. In a January 2009 medical opinion, a VA physician-examiner reviewed the medical records regarding the Veteran's contention that his bilateral knee and ankle disorder was a direct result of his service in Vietnam, including that the moist climate caused his polyarthralgia, but did not conduct a clinical evaluation. The VA examiner found no evidence in the medical literature correlating climate change to osteoarthritis. It was noted that the Veteran had no significant trauma to these joints that would predispose them to osteoarthritis. It was also noted that there was no evidence in the Veteran's file to suggest that he would be more prone to the development of arthritis than age-matched controls. In the VA examiner's opinion, the Veteran's current condition of his knees and shoulders was less likely than not caused by or a result of his Vietnam service. The VA medical records show that, on April 21, 2010, the Veteran reported pain related to a recent motorcycle accident. In October 2012, a VA nurse-practitioner diagnosed the Veteran with bilateral knee and shoulder degenerative joint disease. The examiner found no evidence in the claims file to support a finding that active service caused the Veteran's arthritis of the knees and shoulders. Thus, it was less likely as not that his currently diagnosed knee and shoulder condition was caused by military service. The examiner stated that age-related degeneration was the more likely culprit. As discussed above, upon review of the evidence in this case, in August 2013, the Board sought an opinion from a VHA medical expert as to whether it was at least as likely as not that the in-service diagnoses of arthritis of the Veteran's shoulders and knee were valid arthritis diagnoses, considering the lack of x-ray evidence. The Board also asked whether it was at least as likely as not (50 percent or greater probability) that the any current disability of the right and/or left shoulder or knee was the result of an in-service event or injury, began during service, or is otherwise related to the Veteran's military service. Further, the Board asked the examiner to assume that the Veteran obtained treatment for his shoulders and knees within the year immediately following service, notwithstanding the unavailability of records in the claims file. Given this assumption, the Board asked if it was at least as likely as not that the Veteran had arthritis of the right and/or left shoulder or knee within a year of his separation from active service. Finally, the Board asked whether it was at least as likely as not that the Veteran's bilateral shoulder and knee disorders were affected by his 1974 motorcycle accident. If so, the examiner was asked to describe the effects, if any, of that accident on the Veteran's disabilities, as well as the effects of the accident on current x-ray findings. In the September 2013 opinion, the VHA expert noted his review of the Veteran's medical records and responded to the Board's queries. As to the Board's first question, the VHA examiner opined that, if the Veteran had any "arthritis," the available data was insufficient to even arrive at any diagnosis. This medical expert explained that "[t]he diagnosis of 'arthritis' is meaningless...[and t]here are over 100 different types of arthritis." The examiner observed that the Veteran was seen on August 28, 1968 (evidently a reference to the August 24, 1968 clinical record) and complained of pain in knees, ankles, and shoulder. The physical examination was apparently normal. No laboratory tests or x-rays were available. According to the VHA examiner, with the data available, it cannot even be surmised what kind of problem the Veteran had and, two days later, there is mention of vague pains in the above-mentioned joints. The VHA medical specialist also noted that, on October 11, 1968 (apparently a reference to a September 11, 1968 clinical record), the Veteran was seen with red, swollen, and erythematous feet and a diagnosis of possible cellulitis was made. Nine days later the foot was again mentioned. But, when examined for separation, soon after, there was no mention of musculoskeletal problems. Nor were musculoskeletal problems mentioned when the Veteran was examined for enlistment into the Army Reserve in 1976. The VHA physician then observed that the Veteran had adequate work-up and diagnosis of osteoarthritis, possible DISH, chondromalacia, patella, meniscus tear and AC ligament tear, post traumatic and post operatory shoulder problems were fairly well documented. In the VHA examiner's opinion, there was no evidence that these would be the result of in-service event or injury. According to the VHA examiner, for the above-mentioned reasons, it was unlikely that the Veteran had "arthritis" of the shoulders and knees within a year of his separation from active service. The VHA examiner also concluded that it was likely that the Veteran's (1974 motorcycle) accident and left shoulder surgery explained his left shoulder problems. Regarding the Veteran's knee problems, there was no record of previous trauma. However, menisci and ACL tear may occur in the absence of trauma history so it was likely that the left knee pain was related to those lesions. The VHA examiner opined that the right knee and shoulder pain was likely the result of osteoarthritis. There is no medical opinion of record to refute the September 2013 VHA examiner's opinion. The record shows that the Veteran was treated in service for questionable arthritis, and he reported treatment for arthritis in the first year after his discharge from active service. However, the first documented evidence of any type of arthritis after service is found in the December 2003 private medical record from Dr. M.T.S. that reflects a history of osteoarthritis of the spine since 2002, and includes a diagnosis of probable DISH, a genetic form of osteoarthritis, over 30 years after active service. The mere absence of medical records does not contradict a veteran's statements about his symptom history. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006). However, if it is determined based upon reliable evidence that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). As noted above, the Board accepts that the Veteran sought treatment for his shoulders and knees within the first post-service year. However, the weight of the evidence is against a finding that such treatment was for the same disorder (i.e., arthritis) that is currently claimed on appeal. Rather, it can be concluded from an overall review of the record that whatever symptoms he was then experiencing resolved without residual and that his current symptoms represent a different disorder, even if manifest by similar symptoms of shoulder and knee pain. His hearing testimony, while indicating treatment in the first post-service year, does not expressly endorse a history of continuous symptoms since service. His other statements of record also do not expressly indicate a history of continuous symptomatology. Further, he made no mention of his knee and shoulder problems in 1976 during his service examination for enlistment into the Army Reserve, and examination of his musculoskeletal system at that time was normal. He has not explained why he failed to mention pertinent difficulty when examined pursuant to service requirements. Further, the Veteran told Dr. M.T.S. that he had muscle pain for two years, and osteoarthritis of the spine since 2002, not since active service in 1969. Moreover, the Veteran did not raise a claim of service connection until 2008, almost 40 years after discharge. If he were indeed experiencing continuous symptoms of the shoulders and knees since service, it would be reasonable to expect that he would have filed a claim much sooner. The fact that he did not do so, while not dispositive, provides some indication that he was not in fact experiencing continuous symptoms or, if he was, that he did not attribute them to his active service. For all of the foregoing reasons, the Board concludes that there were no continuous symptoms in this case. Thus, given the lack of evidence to support a finding of continuous symptomatology, service connection is not warranted on this basis. Additionally, the competent medical evidence does not allow for an award of service connection either. Indeed, the September 2013 VHA examiner, who reviewed the claims file, found without equivocation that there was insufficient available data to conclude that the Veteran had any arthritis in service. This medical specialist also found that the Veteran's diagnoses of osteoarthritis, possible DISH, chondromalacia, patella, meniscus tear and AC ligament tear, post traumatic and post operatory shoulder problems, were fairly well documented. The examiner opined that there was no evidence that these would be the result of an in-service event or injury. In the VHA examiner's opinion, it was unlikely that the Veteran had "arthritis" of the shoulders and knees within one year of his separation from active service. The examiner also concluded that it was likely that the Veteran's 1974 accident and left shoulder surgery explained his left shoulder problems. As to knee problems, there was no record of previous trauma. The examiner noted that menisci and ACL tear may occur in the absence of trauma history so it was likely that the Veteran's left knee pain was related to those lesions. In the examiner's opinion, the Veteran's right knee and shoulder pain was likely the result of osteoarthritis. Where a medical expert has fairly considered all the evidence, his opinion may be accepted as an adequate statement of the reasons and bases for a decision when the Board adopts such an opinion. Wray v. Brown, 7 Vet. App. at 493. The Board does, in fact, adopt the VHA specialist's opinion on which it bases its determination that service connection for bilateral knee and shoulder disorders, including arthritis, is not warranted. Since the VHA physician's opinion was based on a review of the pertinent medical history, and was supported by sound rationale, it provides compelling evidence against the appellant's claim. The Board emphasizes that the VHA medical expert provided a valid medical analysis to the significant facts of this case in reaching her conclusion. In other words, the VHA physician did not only provide data and conclusions, but also provided a clear and reasoned analysis that the court has held is where most of the probative value of a medical opinion comes is derived. See Nieves-Rodriguez v. Peake, 22 Vet App 295 (2008); see also Wray v. Brown, 7 Vet. App. at 493. In the absence of any competent evidence of a chronic bilateral shoulder or knee disorder due to military service, the Board must conclude that service connection for bilateral shoulder and knee disorders, including arthritis, is not warranted. In denying service connection as to the claims on appeal, the Board has considered the Veteran's contention that a relationship exists between his current shoulder and knee disorders, and military service. In adjudicating these claims, the Board must assess the Veteran's competence and credibility. See Buchanan v. Nicholson, 451 F.3d at 1331; Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Veteran is not competent to state that he has arthritis of the knees and shoulders due military service, or another bilateral knee and shoulder disorder. The clinical pathology of joint disorders is not readily recognizable by a layman, such as varicose veins or acne. See Jandreau v. Nicholson. Even medical professionals rely on laboratory test results, x-rays, and other diagnostic tools to diagnose orthopedic disorders, including arthritis. In sum, a clear preponderance of the objective and probative medical evidence of record is against the Veteran's claim for service connection for bilateral knee and shoulder disorders, including arthritis, and his claims must be denied. The benefit-of-doubt rule does not apply when the Board finds that a preponderance of the evidence is against the claim. Ortiz v. Principi, 274 F. 3d 1361, 1365 (Fed. Cir. 2001). ORDER Service connection for left and right shoulder disorders, including arthritis, is denied. Service connection for left and right knee disorders, including arthritis, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs