Citation Nr: 18156808 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 16-09 731 DATE: December 11, 2018 ORDER Whether new and material evidence has been received to reopen service connection for a lumbar spine disability is granted. Whether new and material evidence has been received to reopen service connection for resection of a pulmonary sarcoma with loss of right lung function is granted. Whether new and material evidence has been received to reopen service connection for a cervical spine disability is granted. Whether new and material evidence has been received to reopen service connection for a cardiovascular disability is granted. Whether new and material evidence has been received to reopen service connection for anemia is granted. Whether new and material evidence has been received to reopen service connection for a neurological disability of the left upper extremity is granted. Whether new and material evidence has been received to reopen service connection for a neurological disability of the right upper extremity is granted. REMANDED Entitlement to service connection for a right hip disability is remanded. Entitlement to service connection for a left hip disability is remanded. Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a lumbar spine disability is remanded. Entitlement to service connection for residuals of a pulmonary resection with loss of right lung function is remanded. Entitlement to service connection for a residuals of a pulmonary artery tumor is remanded. Entitlement to service connection for a sleep apnea is remanded. Entitlement to service connection for a cardiovascular disability is remanded. Entitlement to service connection for anemia is remanded. Entitlement to service connection for residuals of a right unilateral oophorectomy with endometriosis is remanded. Entitlement to service connection for a neurological disability of the left upper extremity is remanded. Entitlement to service connection for a neurological disability of the right upper extremity is remanded. FINDINGS OF FACT 1. In an October 2006 rating decision, the RO denied the Veteran service connection for cardiovascular and respiratory disabilities. The Veteran did not perfect a timely appeal of this decision. 2. In a June 2009 rating decision, the RO denied the Veteran service connection for anemia and for disabilities of the cervical and lumbosacral spine and bilateral upper extremities. The Veteran did not perfect a timely appeal of this decision. 3. Records received since the June 2009 rating decision contain evidence not previously considered that suggests a current lumbosacral spine disability which is possibly related to service. 4. Records received since the October 2006 rating decision contain evidence not previously considered that suggests a current respiratory disability which is possibly related to service. 5. Records received since the June 2009 rating decision contain evidence not previously considered that suggests a current cervical spine disability which is possibly related to service. 6. Records received since the October 2006 rating decision contain evidence not previously considered that suggests a current cardiovascular disability which is possibly related to service. 7. Records received since the June 2009 rating decision contain evidence not previously considered that suggests anemia is possibly related to service. 8. Records received since the June 2009 rating decision contain evidence not previously considered that suggests a current neurological disability of the left upper extremity which is possibly related to service. 9. Records received since the June 2009 rating decision contain evidence not previously considered that suggests a current neurological disability of the right upper extremity which is possibly related to service. CONCLUSIONS OF LAW 1. The October 2006 rating decision denying service connection for cardiovascular and respiratory disabilities is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The June 2009 rating decision denying service connection for anemia and for disabilities of the cervical and lumbosacral spine and bilateral upper extremities is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. Evidence received since the June 2009 rating decision is new and material and the claim of entitlement to service connection for a lumbosacral spine disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. Evidence received since the October 2006 rating decision is new and material and the claim of entitlement to service connection for a respiratory disability, claimed as resection of a pulmonary sarcoma with loss of right lung function, is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. Evidence received since the June 2009 rating decision is new and material and the claim of entitlement to service connection for a cervical spine disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 6. Evidence received since the October 2006 rating decision is new and material and the claim of entitlement to service connection for a cardiovascular disability is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 7. Evidence received since the June 2009 rating decision is new and material and the claim of entitlement to service connection for anemia is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 8. Evidence received since the June 2009 rating decision is new and material and the claim of entitlement to service connection for a neurological disability of the left upper extremity is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 9. Evidence received since the June 2009 rating decision is new and material and the claim of entitlement to service connection for a neurological disability of the right upper extremity is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1992 to June 1994. New and Material Evidence The Veteran seeks to reopen multiple service connection claims which were previously and finally denied by VA. Generally, a claim which has been denied in a final unappealed rating decision, or a rating decision that was appealed to the Board and remained denied, may not be reopened and allowed. 38 U.S.C. §§ 7104, 7105(c), (d)(3); 38 C.F.R. §§ 20.1100, 20.1103. An exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, VA shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Regardless of whether the RO determined new and material evidence had been submitted, the Board must address the issue of the receipt of new and material evidence in the first instance because it determines the Board’s jurisdiction to reach the underlying claims and to adjudicate the claims de novo. See Woehlaert v. Nicholson, 21 Vet. App. 456, 460-61 (2007) (citing Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff’g, 8 Vet. App. 1 (1995)). If the Board finds that no such evidence has been offered, that is where the analysis must end, and what the RO may have determined in this regard is irrelevant. Barnett, 83 F.3d at 1383. Further analysis, beyond the evaluation of whether the evidence submitted in the effort to reopen is new and material, is neither required nor permitted. Id. at 1384. Any finding entered when new and material evidence has not been submitted “is a legal nullity.” Butler v. Brown, 9 Vet. App. 167, 171 (1996) (applying an identical analysis to claims previously and finally denied, whether by the Board or the RO). See Jackson v. Principi, 265 F.3d 1366, 1369 (2001) (the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of whether the previous action denying the claim was appealed to the Board). 1. Whether new and material evidence has been received to reopen service connection for a lumbar spine disability The Veteran seeks to reopen service connection for a low back disability. Service connection for degenerative disc disease of the lumbosacral spine was denied in a June 2009 rating decision. The VA regional office (RO) determined that the Veteran was not shown to have incurred symptoms of the low back during service. In the absence of evidence of onset of a current disability of the low back in service, the RO denied the claim. The Veteran failed to file a timely notice of disagreement and this rating decision subsequently became final. 38 U.S.C. § 7105. Since the prior final denial of the claim in June 2009, recent evidentiary submissions have included VA treatment records and the Veteran’s own contentions. Specifically, according to a March 2014 clinical treatment note authored by a VA nurse practitioner, the Veteran was diagnosed with degenerative arthritis of the spine. Moreover, this VA nurse practitioner opined that it was “more than likely” this disability was incurred in service or shortly thereafter. Having reviewed the evidentiary submissions since June 2009, the Board finds that new and material evidence to reopen service connection for a lumbosacral spine disability has been received. Specifically, the March 2014 VA clinical notation suggests a nexus between a current lumbosacral spine disability and service, evidence of which was not of record at the time of the prior June 2009 denial. This evidence is new, in that it was not of record at the time of the prior final denial. It is also not cumulative and redundant of evidence already of record, and is material, as this evidence suggests a current lumbosacral spine disability is related to service, the lack of evidence of which was the basis of the prior final denial of service connection. Therefore, this claim is reopened. 2. Whether new and material evidence has been received to reopen service connection for resection of a pulmonary sarcoma with loss of right lung function The Veteran seeks to reopen service connection for a respiratory disability. In an October 2006 rating decision, service connection for respiratory disability, claimed as resection of a pulmonary sarcoma with loss of right lung function, was denied by the RO. The RO determined that while the Veteran had undergone a resection of a pulmonary sarcoma several years after service, this disability was not shown to have its onset during service or as the result of any in-service disease or injury. In the absence of a such a nexus, the RO denied the claim. The Veteran failed to file a timely notice of disagreement and this rating decision subsequently became final. 38 U.S.C. § 7105. Since the prior final denial of the claim in October 2006, recent evidentiary submissions have included VA treatment records and the Veteran’s own contentions. Specifically, according to a March 2014 clinical treatment note authored by a VA nurse practitioner, the Veteran was status post-lobectomy with resection of a pulmonary tumor. Moreover, this nurse practitioner opined that it was “more than likely” this disability was incurred in service or shortly thereafter. Having reviewed the evidentiary submissions since October 2006, the Board finds that new and material evidence to reopen service connection for a respiratory disability has been received. Specifically, the March 2014 VA clinical notation suggests a nexus between a current respiratory disability and an incident of service, evidence of which was not of record at the time of the prior October 2006 denial. This evidence is new, in that it was not of record at the time of the prior final denial. It is also not cumulative and redundant of evidence already of record, and is material, as this evidence suggests a current respiratory disability is related to service, the lack of evidence of which was the basis of the prior final denial of service connection. Therefore, this claim is reopened. 3. Whether new and material evidence has been received to reopen service connection for a cervical spine disability The Veteran seeks to reopen service connection for a cervical spine disability. Service connection for subluxation of the cervical spine was denied in a June 2009 rating decision. The RO determined that the Veteran was not shown to have incurred symptoms of a cervical spine disability during service. In the absence of evidence of onset of a current disability of the cervical spine in service, the RO denied the claim. The Veteran failed to file a timely notice of disagreement and this rating decision subsequently became final. 38 U.S.C. § 7105. Since the prior final denial of the claim in June 2009, recent evidentiary submissions have included VA treatment records and the Veteran’s own contentions. Specifically, according to a March 2014 clinical treatment note authored by a VA nurse practitioner, the Veteran was diagnosed with degenerative arthritis of the spine. Moreover, this nurse practitioner opined that it was “more than likely” this disability was incurred in service or shortly thereafter. Having reviewed the evidentiary submissions since June 2009, the Board finds that new and material evidence to reopen service connection for a cervical spine disability has been received. Specifically, the March 2014 VA clinical notation suggests a nexus between a current cervical spine disability and service, evidence of which was not of record at the time of the prior June 2009 denial. This evidence is new, in that it was not of record at the time of the prior final denial. It is also not cumulative and redundant of evidence already of record, and is material, as this evidence suggests a current cervical spine disability is related to service, the lack of evidence of which was the basis of the prior final denial of service connection. Therefore, this claim is reopened. 4. Whether new and material evidence has been received to reopen service connection for a cardiovascular disability In an October 2006 rating decision, service connection for a cardiovascular disability was denied by the RO. The RO determined that while the Veteran was suspected to have cardiomegaly during service, she was not shown to have a current cardiovascular disability post-service. In the absence of a current cardiovascular disability, the RO denied the claim. The Veteran failed to file a timely notice of disagreement and this rating decision subsequently became final. 38 U.S.C. § 7105. Since the prior final denial of the claim in October 2006, recent evidentiary submissions have included VA treatment records and the Veteran’s own contentions. Specifically, according to a March 2014 clinical treatment note authored by a VA nurse practitioner, the Veteran has current diagnoses of hypertension and residuals of a cardiopulmonary bypass. Moreover, this nurse practitioner opined that it was “more than likely” these disabilities were incurred in service or shortly thereafter. Having reviewed the evidentiary submissions since October 2006, the Board finds that new and material evidence to reopen service connection for a cardiovascular disability has been received. Specifically, the March 2014 VA clinical notation suggests a current cardiovascular disability, a diagnosis of which was not of record at the time of the prior October 2006 denial. This evidence is new, in that it was not of record at the time of the prior final denial. It is also not cumulative and redundant of evidence already of record, and is material, as this evidence suggests a current cardiovascular disability, the lack of evidence of which was the basis of the prior final denial of service connection. Therefore, this claim is reopened. 5. Whether new and material evidence has been received to reopen service connection for anemia The Veteran seeks to reopen service connection for anemia. Service connection for iron deficiency anemia was denied in a June 2009 rating decision. The RO determined that the Veteran was not shown to have incurred symptoms of anemia during service. In the absence of evidence of onset of a current anemia disorder in service, the RO denied the claim. The Veteran failed to file a timely notice of disagreement and this rating decision subsequently became final. 38 U.S.C. § 7105. Since the prior final denial of the claim in June 2009, recent evidentiary submissions have included VA treatment records and the Veteran’s own contentions. Specifically, according to a March 2014 clinical treatment note authored by a VA nurse practitioner, the Veteran was diagnosed with anemia. Moreover, this nurse practitioner opined that it was “more than likely” this disability was incurred in service or shortly thereafter. Having reviewed the evidentiary submissions since June 2009, the Board finds that new and material evidence to reopen service connection for anemia has been received. Specifically, the March 2014 VA clinical notation suggests a nexus between a current diagnosis of anemia and service, evidence of which was not of record at the time of the prior June 2009 denial. This evidence is new, in that it was not of record at the time of the prior final denial. It is also not cumulative and redundant of evidence already of record, and is material, as this evidence suggests a current diagnosis of anemia is related to service, the lack of evidence of which was the basis of the prior final denial of service connection. Therefore, this claim is reopened. 6. Whether new and material evidence has been received to reopen service connection for a neurological disability of the left upper extremity 7. Whether new and material evidence has been received to reopen service connection for a neurological disability of the right upper extremity The Veteran seeks to reopen service connection for neurological disabilities of the upper extremities. Service connection for cervical radiculopathy of the bilateral upper extremities was denied in a June 2009 rating decision. The RO determined that the Veteran was not shown to have incurred symptoms of a neurological disability of the upper extremities during service. In the absence of evidence of onset in service of any current neurological disabilities of the upper extremities, the RO denied the claim. The Veteran failed to file a timely notice of disagreement and this rating decision subsequently became final. 38 U.S.C. § 7105. Since the prior final denial of the claim in June 2009, recent evidentiary submissions have included VA treatment records and the Veteran’s own contentions. Specifically, according to a March 2014 clinical treatment note authored by a VA nurse practitioner, the Veteran was diagnosed with paralysis of the median nerves of the upper extremities. Moreover, this nurse practitioner opined that it was “more than likely” these disabilities were incurred in service or shortly thereafter. Having reviewed the evidentiary submissions since June 2009, the Board finds that new and material evidence to reopen service connection for neurological disabilities of the upper extremities has been received. Specifically, the March 2014 VA clinical notation suggests a nexus between current upper extremity neurological disabilities and service, evidence of which was not of record at the time of the prior June 2009 denial. This evidence is new, in that it was not of record at the time of the prior final denial. It is also not cumulative and redundant of evidence already of record, and is material, as this evidence suggests current neurological disabilities of the upper extremities are related to service, the lack of evidence of which was the basis of the prior final denial of service connection. Therefore, these claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for a right hip disability is remanded. 2. Entitlement to service connection for a left hip disability is remanded. On review of the record, VA medical treatment records were most recently requested in February 2016, nearly three years ago. At her August 2016 Board hearing, the Veteran reported more recent VA medical treatment. As the Veteran has made VA aware of outstanding medical treatment evidence, remand is necessary in order for this evidence to be obtained and reviewed by VA. 3. Entitlement to service connection for a cervical spine disability is remanded. The Veteran seeks service connection for a cervical spine disability. Review of the service treatment records indicate that in May 1994, she sought treatment for neck pain, allegedly resulting from a sudden “snapping” of her neck upon waking one morning. On physical examination, she had tenderness of the left paracervical and trapezius muscles. The final impression was of a neck strain. She was given medication for her pain and returned to duty. More recently, the Veteran was diagnosed with degenerative disc disease of the cervical spine by a VA nurse practitioner who suggested this disorder might have had its onset in service. As the Veteran has yet to be afforded a VA examination and opinion regarding the etiology of her degenerative disc disease of the cervical spine, remand for such an examination is necessary. 4. Entitlement to service connection for a lumbar spine disability is remanded. The Veteran seeks service connection for a lumbosacral spine disability. Review of the service treatment records indicate that in February 1994, she sought treatment for low back pain. She was given pain medication and returned to duty. More recently, the Veteran was diagnosed with degenerative disc disease of the lumbosacral spine by a VA nurse practitioner who suggested this disorder might have had its onset in service. As the Veteran has yet to be afforded a VA examination and opinion regarding the etiology of her degenerative disc disease of the lumbosacral spine, remand for such an examination is necessary. 5. Entitlement to service connection for residuals of a pulmonary resection with loss of right lung function is remanded. 6. Entitlement to service connection for a residuals of a pulmonary artery tumor is remanded. The Veteran seeks service connection for various respiratory disorders resulting from removal of a pulmonary artery tumor and partial resection of the right lung. While these occurred following service, the Veteran has alleged that she first experienced symptoms, such as chronic cough, shortness of breath, and sputum production, of these disorders in service. Review of the post-service records indicates that she was first observed to have a mass or density of the lung approximately one year after service separation. Moreover, a VA nurse practitioner opined that her respiratory disabilities may have had their onset in service. Thus, remand is required in order to afford her a VA medical opinion regarding these disabilities. 7. Entitlement to service connection for a sleep apnea is remanded. The VA nurse practitioner suggested the sleep apnea was related to the lobectomy. Accordingly, this issue must be deferred as it is intertwined. Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). 8. Entitlement to service connection for a cardiovascular disability is remanded. The Veteran seeks service connection for a cardiovascular disability. Review of the service treatment records indicate that in approximately November 1993, she was seen for shortness of breath and other respiratory complaints, and a chest x-ray indicated possible cardiomegaly. A subsequent February 1994 echocardiogram was within normal limits. Likewise, a June 1994 chest x-ray indicated the Veteran’s lungs were clear and her heart was of normal size. No abnormalities were noted at that time. Nevertheless, on VA cardiovascular examination in May 1995, within a year of service separation, she received a diagnosis of possible mitral valve prolapse. She has asserted that coronary artery disease and/or arteriosclerotic heart disease have been diagnosed since that time. The Board finds this evidence sufficient to afford the Veteran a VA examination and opinion to determine the etiology of any current cardiovascular disability. 9. Entitlement to service connection for anemia is remanded. The Veteran seeks service connection for a hemic disability, claimed as anemia. Review of the record indicates that in August 1995, just over a year after service separation, the Veteran was diagnosed by a private physician with “significant iron deficiency anemia.” Moreover, a VA nurse practitioner opined in March 2014 that this disability may have had its onset in service. The Board finds this evidence sufficient to afford the Veteran a VA examination and opinion to determine the etiology of any current hemic disability. 10. Entitlement to service connection for residuals of a right unilateral oophorectomy with endometriosis is remanded. The Veteran seeks service connection for a gynecological disability, claimed as residuals of a right unilateral oophorectomy with endometriosis. Review of the service treatment records indicates that in December 1993, the Veteran sought treatment for hematuria and pelvic pain. A viral or bacterial infection was suspected. She was afforded medication but continued to experience symptoms. In April 1994, she was afforded a gynecological consultation and a mass posterior to the cervix was detected. The Veteran underwent a laparoscopy in June 1994. No postoperative complications were noted. As the Veteran experienced gynecological or lower abdominal symptoms in service, and has reported a continuity of such symptoms since that time, a VA examination and opinion is warranted to determine whether any current gynecological disorder is related to service. 11. Entitlement to service connection for a neurological disability of the left upper extremity is remanded. Entitlement to service connection for a neurological disability of the right upper extremity is remanded. The Veteran seeks service connection for a neurological disability of the bilateral upper extremities. As noted above a March 2014 clinical treatment note diagnosed paralysis of the median nerves of the upper extremities and indicated that it was “more than likely” these disabilities were incurred in service or shortly thereafter. The Board finds this evidence sufficient to afford the Veteran a VA examination and opinion to determine the etiology of any current hemic disability. The matters are REMANDED for the following action: 1. Obtained all VA treatment records from the Northern Indiana VA Healthcare System, as well as any other VA facilities at which the Veteran has received treatment, dated from February 2016 to the present. Any negative responses should be properly documented in the record. 2. Schedule the Veteran for an orthopedic examination by a physician or similar expert in orthopedic disorders to determine the nature and etiology of any current lumbosacral and/or cervical spine disorders. The claims folder must be made available to and reviewed by the examiner in connection with the examination, and a complete history should be elicited from the Veteran. The examiner must review the service treatment records, to include the Veteran’s in-service treatment for neck and low back pain. The examiner is also reminded that the Veteran is competent to report such observable symptomatology as joint pain. All indicated tests and studies should be accomplished, to include X-rays of the spine, if deemed necessary by the examiner. Upon review of the file, the examiner is asked to address the presence of any current disorder of the cervical or lumbosacral spine. For any disorder identified, the examiner is asked to specifically address whether it is as likely as not (a 50 percent or greater probability) that such a disorder had its onset during service or manifested within a year thereafter. The examiner is asked to provide a rationale for his/her opinion. 3. Forward the claims file to a VA pulmonologist or similar expert in respiratory disabilities. The Veteran need not be scheduled for a VA examination unless the reviewer deems such an examination necessary to provide an accurate medical opinion. Upon review of the file, the examiner is asked to address the presence of any current or post-service respiratory disabilities, to include any residuals of removal of a pulmonary artery tumor and partial resection of the right lung. For any disorder identified, the examiner is asked to specifically address whether it is as likely as not (a 50 percent or greater probability) that such a disorder had its onset during service or manifested within a year thereafter. The examiner must discuss the September 2013 statement that the dyspnea was more likely than not related to gas chamber exposure. The examiner is asked to provide a rationale for his/her opinion. 4. Schedule the Veteran for a cardiovascular examination by a physician or similar expert in cardiovascular disorders to determine the nature and etiology of any current cardiovascular or hemic disorders. The claims folder must be made available to and reviewed by the examiner in connection with the examination, and a complete history should be elicited from the Veteran. The examiner must review the service treatment records, to include the Veteran’s in-service treatment for possible cardiomegaly. All indicated tests and studies should be accomplished, to include an echocardiogram, if deemed necessary by the examiner. Upon review of the file, the examiner is asked to address the presence of any current cardiovascular or hemic disorders, to include anemia. For any disorder identified, the examiner is asked to specifically address whether it is as likely as not (a 50 percent or greater probability) that such a disorder had its onset during service or manifested within a year thereafter. The examiner is asked to provide a rationale for his/her opinion. 5. Schedule the Veteran for a gynecological examination by a physician or similar expert in gynecological disorders to determine the nature and etiology of any current gynecological disorders. The claims folder must be made available to and reviewed by the examiner in connection with the examination, and a complete history should be elicited from the Veteran. The examiner must review the service treatment records, to include the Veteran’s in-service gynecological treatment and laparoscopy. All indicated tests and studies should be accomplished, as deemed necessary by the examiner. Upon review of the file, the examiner is asked to address the presence of any current gynecological disorders, to include any residuals of the in-service laparoscopy. For any current disorder identified, the examiner is asked to specifically address whether it is as likely as not (a 50 percent or greater probability) that such a disorder had its onset during service or manifested within a year thereafter. The examiner is asked to provide a rationale for his/her opinion. (Continued on the next page)   6. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any bilateral upper extremity neurological disorder. The claims folder must be made available to and reviewed by the examiner in connection with the examination, and a complete history should be elicited from the Veteran. The examiner must review the service treatment records. All indicated tests and studies should be accomplished if deemed necessary by the examiner. Upon review of the file, the examiner is asked to address the presence of any current upper extremity neurological disorder. For any disorder identified, the examiner is asked to specifically address whether it is as likely as not (a 50 percent or greater probability) that such a disorder had its onset during service or manifested within a year thereafter. The examiner is asked to provide a rationale for his/her opinion. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel