Citation Nr: 1338624 Decision Date: 11/22/13 Archive Date: 12/06/13 DOCKET NO. 11-04 792 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an initial rating (evaluation) in excess of 10 percent prior to February 7, 2013, and in excess of 20 percent from February 7, 2013, for spinal stenosis with degenerative joint disease of the lumbosacral spine. 2. Entitlement to a total disability evaluation (rating) based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Non Commissioned Officers Association WITNESS AT HEARING ON APPEAL Appellant (Veteran) ATTORNEY FOR THE BOARD C. Ferguson, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from January 1956 to January 1961. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the May 2010 rating decision of the above Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for spinal stenosis with degenerative joint disease of the lumbar spine with a 10 percent rating effective March 20, 2006. The Board has reviewed the Veteran's electronic files on the "Virtual VA" and Veterans Benefits Management System (VBMS) systems, to ensure a complete review of the evidence in this case. In the May 2011 rating decision, the RO granted service connection for left lumbar radiculopathy with weakness of the left dorsiflexors and mild left foot with a 10 percent rating effective July 7, 2010. In June 2012, the Veteran testified before a Veterans Law Judge at a Travel Board hearing. A written transcript of the hearing is of record. In January 2013, the Board remanded the issue on appeal to obtain outstanding treatment records identified by the Veteran and to provide the Veteran with a VA examination of the service-connected lumbar spine disability. In the February 2013 rating decision, an increased rating of 20 percent was granted for spinal stenosis with degenerative joint disease of the lumbar spine effective February 7, 2013. In May 2013, the Board remanded the issue on appeal to obtain outstanding treatment records identified by the Veteran followed by readjudication of the appeal. The case now returns to the Board following completion of the ordered development. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2013). 38 U.S.C.A. § 7107(a)(2) (West 2002). 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. FINDINGS OF FACT 1. For the portion of the rating period prior to February 7, 2013, the evidence shows that Veteran's lumbar spine disability more nearly approximates muscle spasm severe enough to result in an abnormal spinal contour (i.e., scoliosis); the lumbar spine disability is manifested by forward flexion to 70 degrees, and a combined range of motion of 165 degrees. 2. For the portion of the rating period from February 7, 2013, forward, the Veteran's lumbar spine disability is manifested by forward flexion ranging from 40 to 60 degrees, and a combined range of motion of 95 degrees or greater. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for an initial 20 percent rating, and no higher, for the Veteran's service-connected lumbar spine disability have been approximated for the portion of the rating period prior to February 7, 2013. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243 (2013). 2. The criteria for an initial rating in excess of 20 percent for the Veteran's service-connected lumbar spine disability have not been met or approximated for the portion of the rating period from February 7, 2013, forward. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, DC 5243 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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). Proper notice from 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 seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This 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). In this case, the Veteran is challenging the initial disability ratings (i.e., staged rating) assigned for the lumbar spine disability following the grant of service connection in the May 2010 rating decision. The Court has held that, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has in fact been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91; Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007). Furthermore, under 38 C.F.R. § 3.159(b)(3)(i), there is no duty to provide the Veteran with VCAA notice upon receipt of a Notice of Disagreement, such as in this case. For these reasons, the Board finds that no further notice, beyond that afforded in the context of the claim for service connection, is needed under the VCAA. Regarding VA's duty to assist in claims development, the Veteran underwent multiple VA medical examinations in connection with the initial rating appeal. Collectively, the VA medical examination reports include all relevant findings and medical opinions needed to evaluate fairly the appeal. The VA medical examiners took a thorough history of the lumbar spine disability from the Veteran, including history of onset, diagnosis, report of symptomatology, other limitations, and treatment. The VA medical examiners had adequate facts and data regarding the history and condition of the disability. See VAOPGCPREC 20-95 (interpreting that in some cases an accurate history by a veteran may be a valid basis for an examination report rather than claims file review); see also Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). The VA medical examiners also considered the Veteran's subjective complaints as it related to current symptomatology and its effects on his daily life and performed a thorough physical evaluation of the Veteran. Neither the Veteran nor the representative has alleged, and the evidence does not show, that there has been a material change in condition of the Veteran's disability since the last VA medical examination. For these reasons, the Board finds that the VA medical examination reports are adequate for rating purposes, and there is no need for further medical examination. In addition, the Veteran's service treatment records are of record. Post-service treatment records adequately identified as relevant to the appeal have also been obtained to the extent possible, or otherwise submitted, and are associated with the record. As noted above, the Board remanded the initial rating appeal in January 2013 for additional treatment records, a VA medical examination, and readjudication of the appeal. Pursuant to the remand directives, the Appeals Management Center (AMC) asked the Veteran in a January 2013 letter to complete and return a consent form so that VA may obtain private treatment records relevant to the appeal or to submit the private treatment records himself. The Veteran did not initially respond to the letter but later submitted certain records from private medical providers. See March 2013 letter from the representative. Also, additional VA treatment records were obtained, and a VA medical examination was provided to the Veteran in February 2013. The appeal was readjudicated in February 2013. The Board again remanded the initial rating appeal in May 2013 for additional treatment records, and readjudication of the appeal. The Veteran submitted a completed VA Form 21-4142 in June 2013 for private physical therapy records, and the records were obtained. In consideration of the foregoing, the Board finds that there was substantial compliance with the Board's prior remand directives. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008). The Veteran has not made the RO or the Board aware of any other evidence relevant to the appeal that needs to be obtained. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal, and no further development is required to comply with the duty to assist in developing the facts pertinent to the appeal. In view of the foregoing, the Board will proceed with appellate review. Disability Rating Legal Criteria It is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C.A. § 7104(a). The Board has thoroughly reviewed all the evidence of record in this case. The analysis below focuses on the most relevant evidence and on what this evidence shows, or fails to show, on the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review the entire record, but does not have to discuss each piece of evidence); see also Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. Although pain may cause a functional loss, pain itself does not constitute functional loss. Pain must affect some aspect of "the normal working movements of the body" such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining the disability evaluation, VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Governing regulations include 38 C.F.R. §§ 4.1 and 4.2, which require the evaluation of the complete medical history of a veteran's condition. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In a claim for a higher original rating after an initial award of service connection, all the evidence submitted in support of a veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. Initial Rating Analysis for the Lumbar Spine Disability The Veteran's service-connected lumbar spine disability is rated at 10 percent prior to February 7, 2013, and rated at 20 percent from February 7, 2013, under DC 5238 for spinal stenosis; however, in light of the April 2010 VA medical examiner's notation that an August 2006 x-ray of the lumbar spine shows degenerative disc disease, and the February 2013 VA medical examiner's notation that an April 2010 CAT scan shows lumbar degenerative disc disease, the Board finds that the service-connected lumbar spine disability is more appropriately evaluated under DC 5243 for IVDS. Butts v. Brown, 5 Vet. App. 532, 538 (1993). Under the rating schedule, the Veteran's IVDS (preoperatively or postoperatively) is to be evaluated either under the Formula for Rating Intervertebral Disc Syndrome based on incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243. Evaluation Based On Incapacitating Episodes In regard to the first method of evaluation (total duration of incapacitating episodes over the past 12 months), the rating criteria provide that a 10 percent evaluation is warranted if intervertebral disc syndrome is manifested by incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. A 20 percent evaluation is warranted if incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted if the total duration is at least six weeks during the past 12 months. Id. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. The term "chronic orthopedic and neurologic manifestations" were defined as "orthopedic and neurologic signs and symptoms resulting from intervertebral disc syndrome that are present constantly, or nearly so." 38 C.F.R. § 4.71a, DC 5243, Note (1). After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that higher ratings are warranted for either portion of the rating period based on total duration of incapacitating episodes. At the August 2006 VA medical examination, the Veteran stated that he was not receiving any current treatment and reported no flare-ups for the lumbar spine disability. At the April 2010 VA medical examination, the VA medical examiner similarly noted that no incapacitating episodes or flare-ups were reported. Most recently, at the February 2013 VA medical examination, the Veteran reported that he had had no incapacitating episodes and had not been prescribed bed rest to treat the lumbar spine disability. Treatment records throughout the rating period show no periods of incapacitation due to the back disability. Because the evidence shows no incapacitating episodes due to the lumbar spine disability, and the Veteran would be entitled to a noncompensable (i.e., 0 percent) rating for the lumbar spine disability based on total duration of incapacitating episodes for the entire rating period, the Board finds that ratings in excess of the current 10 percent prior to February 7, 2013 and 20 percent from February 7, 2013 are not warranted under this method of evaluation. Evaluation Based On the General Rating Formula for Spine Disabilities In regard to the second method of evaluation (General Rating Formula for Diseases and Injuries of the Spine), a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height under the General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees; extension is 0 to 30 degrees; left and right lateral flexion and rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. Also, any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under an appropriate DC. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. For the portion of the rating period prior to February 7, 2013 After review of the lay and medical evidence of record, the Board finds that the evidence is in equipoise on the question of whether the criteria for a 20 percent rating have been approximated for the portion of the rating period prior to February 7, 2013, under the rating formula for spine disabilities. Based on the range of motion findings demonstrated at the April 2010 VA medical examination (i.e., forward flexion of 70 degrees and combined range of motion of 165 degrees), the Veteran would be entitled to the current 10 percent rating. However, at the August 2006 VA medical examination, the Veteran reported moderate back spasms, and there is no indication that the Veteran's competent account of back spasms is not credible. Additionally, while no abnormal spinal curvatures were observed on physical examination, x-rays of the lumbar spine showed scoliosis. Later, at the April 2010 VA medical examination, positive muscle spasms of the lumbar spine were noted. Like the August 2006 VA medical examiner, the April 2010 VA medical examiner noted that the Veteran demonstrated no scoliosis on physical examination; however, the April 2010 VA examination report also notes that a computed tomography (CT) scan of the lumbar spine showed dextroscoliosis of the lower lumbar spine. In consideration of the foregoing, and resolving reasonable doubt in favor of the Veteran, the Board finds that the evidence sufficiently shows that the Veteran's lumbar spine disability more nearly approximates muscle spasm severe enough to result in abnormal spinal contour such as scoliosis; therefore, a rating of 20 percent is warranted for the portion of the rating period prior to February 7, 2013 based on the formula for rating spine disabilities. Because the evidence does not show that the Veteran demonstrated ankylosis of the entire thoracolumbar spine or forward flexion of the thoracolumbar spine of 30 degrees or less during this portion of the rating period, an initial rating higher than 20 percent is not warranted. For the portion of the rating period from February 7, 2013 After review of the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that a rating in excess of 20 percent is warranted for the portion of the rating period from February 7, 2013, forward. At the February 2013 VA medical examination, the Veteran demonstrated forward flexion of 60 degrees, with no additional limitation of motion of the joint due to pain, fatigue, and lack of endurance on repetitive range of motion testing. The level of impairment demonstrated at the February 2013 VA medical examination is consistent with the criteria for the current 20 percent rating. There is no evidence of forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine during this portion of the rating period. Because the evidence does not show that manifestations of the lumbar spine disability more closely approximate the criteria for a rating in excess of the current 20 percent from February 7, 2013, a higher rating is not warranted under this method of evaluation for this portion of the rating period. Neurological Impairment The Board has considered whether any separate ratings for neurological impairment due to the lumbar spine disability are warranted in this case. In the February 2013 VA medical examination report, the VA medical examiner noted that the only neurological problem associated with the lumbar spine disability was left foot drop due to lumbar radiculopathy. The February 2013 VA medical examiner's opinion is consistent with other medical and lay evidence relevant to the rating period. Service connection for left lumbar radiculopathy with weakness of the left dorsiflexors and mild left foot drop was established with a 10 percent rating effective July 7, 2010 in an unappealed May 2011 rating decision. At the Board hearing, the Veteran specifically stated that he did not want to appeal the 10 percent rating for lumbar radiculopathy and only wanted to appeal the ratings for the back disability. See Board hearing transcript, pages 19-20. Therefore, the Board finds that the issue of whether a higher rating is warranted for lumbar radiculopathy is not part of the initial rating appeal in this case. Two Evaluation Methods Comparison As between the two methods for evaluating the Veteran's lumbar spine disability (i.e., based on incapacitating episodes and the general rating formula for rating spine disabilities), rating the Veteran's lumbar spine disability based on the general rating formula is more advantageous to the Veteran for the portion of the rating period prior to February 7, 2013, because it results in a higher initial rating of 20 percent (from 10 percent). There is, however, no higher initial rating warranted under either method for the portion of the rating period from February 7, 2013, forward. Extraschedular Referral The Board has further considered whether the initial rating appeal warrants referral for consideration of an extraschedular rating under 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the Board does not find any symptoms or functional impairment that is not already encompassed by the current schedular 20 percent rating under DC 5243. For the portion of the rating period prior to February 7, 2013, the evidence shows that the Veteran's lumbar spine disability is manifested by muscle spasm severe enough to result in an abnormal spinal contour (i.e., scoliosis), forward flexion to 70 degrees, and a combined range of motion of 165 degrees. For the portion of the rating period from February 7, 2013, forward, the Veteran's lumbar spine disability is manifested by pain, forward flexion ranging from 40 to 60 degrees, and a combined range of motion of 95 degrees or greater. These manifestations, which include consideration of Deluca factors, were considered when assigning the current 20 percent rating for the entire rating period. The schedular criteria under DC 5243 contemplate various symptoms of spine disability resulting in functional impairment, to include limitation of thoracolumbar motion, muscle spasm, and abnormal spinal contour. The rating schedule, which was designed as a guide for evaluating the average impairment in earning capacity as a result of disability, provides a 20 percent rating for the degree of impairment demonstrated by the Veteran. Thus, the symptoms and functional impairment related to the Veteran's lumbar spine disability are adequately compensated by the 20 percent disability rating under DC 5243. For these reasons, the Board finds that the schedular criteria are not inadequate to rate the Veteran's lumbar spine disability, and referral for consideration of extraschedular rating is not necessary. ORDER An initial rating of 20 percent, and no higher, for the portion of the rating period prior to February 7, 2013, for spinal stenosis with degenerative joint disease of the lumbosacral spine is granted. An initial rating in excess of 20 percent from February 7, 2013, for spinal stenosis with degenerative joint disease of the lumbosacral spine is denied. REMAND The Board finds that a TDIU has been raised in this case, and is part of the initial rating appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). A TDIU is raised by inference when a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. See Roberson v. Principi, 251 F.3d 1378, 1384 (Fed. Cir. 2001). At the June 2012 Board hearing, the Veteran testified that he retired early because of significant difficulty sitting for eight to nine hours at a desk due to back pain. See Board hearing transcript, pages 14-15. Because the Board finds that the issue of entitlement to a TDIU has been raised, a remand for issuance of proper notice and development is warranted. Accordingly, the reopened claim is REMANDED for the following actions: 1. Provide the Veteran with proper notice explaining how to substantiate a claim for entitlement to a TDIU, to include which information and evidence that he is to provide, and which information and evidence that VA will attempt to obtain on his behalf. 2. After any development deemed necessary is completed, the remanded issue should be adjudicated. If the benefits sought on appeal remain denied, the Veteran and the representative should be provided with a Supplemental Statement of the Case that contains notice of all relevant actions taken, including a summary of the evidence and applicable law and regulations considered pertinent to the issue. An appropriate period of time should be allowed for response by the Veteran and the representative. Thereafter, the case should be returned to the Board for further appellate consideration, if in order. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs