Citation Nr: 18116793 Decision Date: 07/10/18 Archive Date: 07/09/18 DOCKET NO. 10-24 180 DATE: July 10, 2018 ORDER Entitlement to service connection for a lumbar spine disorder, including degenerative disc disease (DDD) and a Tarlov cyst is dismissed. Entitlement to service connection for gastroesophageal reflux disease (GERD) is dismissed. Entitlement to an effective date of May 26, 2010, for the award of an increased disability rating of 60 percent for Hepatitis C is granted. Entitlement to an effective date earlier than May 6, 2013 for the award of an increased disability rating of 100 percent for major depressive disorder and psychophysiological pain disorder (hereinafter referred to as psychiatric disorder) is denied. Entitlement to an effective date earlier than May 6, 2013 for the award of special monthly compensation (SMC) based on aid and attendance/housebound criteria is denied. FINDINGS OF FACT 1. On April 5, 2018, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to service connection for a lumbar spine disorder, including DDD and a Tarlov cyst. 2. On April 5, 2018, prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to service connection for GERD. 3. Resolving all reasonable doubt in the Veteran’s favor, effective May 26, 2010, his Hepatitis C was of such severity so as to warrant a 60 percent rating under Diagnostic Code 7354; however, prior to May 26, 2010, an increase in disability had not been shown to have occurred, and it was not factually ascertainable that an increase in disability took place within a year of the February 27, 2009 claim. 4. Prior to May 6, 2013, an increase in disability for the Veteran’s psychiatric disorder under Diagnostic Code 9434 had not been shown to have occurred, and it was not factually ascertainable that an increase in disability took place within a year of the June 11, 2007 claim. 5. Prior to May 6, 2013, the Veteran did not meet the criteria for SMC under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350(i); there was no evidence of communication or action indicating an intent to apply for SMC, including for being so helpless as to be in need of regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal have been met as to the issue of entitlement to service connection for a lumbar spine disorder, including DDD and a Tarlov cyst. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 2. The criteria for withdrawal of a substantive appeal have been met as to the issue of entitlement to service connection for GERD. 38 U.S.C. § 7105 (b)(2), (d)(5) (2012); 38 C.F.R. §§ 20.202, 20.204 (2017). 3. The criteria for an effective date of May 26, 2010, but no earlier, for the award of a 60 percent disability rating for Hepatitis C have been met. 38 U.S.C. § 5110 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.157 (in effect prior to March 24, 2015), 3.400 (2017). 4. The criteria for an effective date earlier than May 6, 2013 for the award of a 100 percent disability rating for major depressive disorder and psychophysiological pain disorder have not been met. Id. 5. The criteria for an effective date earlier than May 6, 2013 for the award of SMC based on aid and attendance/housebound criteria under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350(i) have not been met. 38 U.S.C. §§ 1114 (s), 5110, 5107, 7104; 38 C.F.R. §§ 3.102, 3.157(b), 3.155(a), 3.350 (i), 3.352(a), 3.400(o)(1), 20.1100 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1971 to December 1972. The Veteran testified before the undersigned Veterans Law Judge during a December 2012 hearing. These matters are on appeal from March 2008 and September 2014 rating decisions and were previously remanded by the Board of Veterans’ Appeals (Board) in May 2013 and December 2016. In the March 2008 rating decision, the RO denied the Veteran’s request to reopen his claims for major depressive disorder, the lumbar spine disability, and GERD and confirmed and continued the prior denials of service connection. The Veteran perfected his appeal. In a In a May 6, 2013 decision, the Board reopened the claims and granted the service connection for the acquired psychiatric disorder and remanded the claims regarding GERD and a lumbar spine disability. At the same time, the Board noted that during the Veteran’s December 2012 hearing, he indicated that his hepatitis had become worse and referred the matter to the Agency of Original Jurisdiction (AOJ) for further action. In an October 2013 rating decision, the RO implemented the Board’s decision granting service connection for major depressive disorder and psychophysiological pain. The RO assigned a 50 percent disability evaluation, effective June 11, 2007, the date of the Veteran’s claim. The Veteran was afforded a VA examination in August 2014 in response to his May 2013 Board remand directive ordering an examination to ascertain the impact of his service connected disabilities on his employability. In the interim, in November 2013, the Veteran subsequently filed a VA 21-8940, Veterans Application for Increased Compensation Based on Unemployability, in which he indicated that his major depressive disorder, among other things caused his unemployability. Due to the findings of the recent VA examination, in a rating decision issued in September 2014, the RO increased the rating assigned for major depressive disorder and psychophysiological pain disorder to 100 percent effective May 6, 2013, increased the evaluation for Hepatitis C to 60 percent from May 6, 2013, and awarded SMC based on aid and attendance/housebound criteria from May 6, 2013. In a September 2014 notice of disagreement, the Veteran specifically disagreed with the rating decision issued in September 2014 and indicated that he disagreed with the effective date of the evaluation of major depressive disorder and psychophysiological pain disorder, the evaluation of Hepatitis C, and the award of entitlement to SMC based on aid and attendance/housebound criteria effective May 6, 2013. In December 2016, the Board remanded the matters for issuance of an SOC. At the same time, the Board remanded the claims for GERD and a lumbar spine disability for further development. Service Connection Entitlement to service connection for GERD and a lumbar spine disorder, including DDD and a Tarlov cyst. In written correspondence dated April 5, 2018, prior to the promulgation of a decision in the appeal, the Board received written notification from the Veteran expressing his desire to no longer appeal the issues concerning entitlement to service connection for GERD and a lumbar spine disorder, including DDD and Tarlov cyst. See March 2008 rating decision, February 2009 notice of disagreement (NOD), March 2010 statement of the case (SOC), May 2010 Form 9, October 2012 Form 8, May 2013 Board remand, April 2015 and January 2018 supplemental SOCs, as well as December 2016 Board. VA regulations provide for the withdrawal of an appeal to the Board by the submission of a written request at any time before the Board issues a final decision on the merits. See 38 C.F.R. § 20.204 (2017). After an appeal is transferred to the Board, an appeal withdrawal is effective the date it is received by the Board. Id. Appeal withdrawals must be in writing and must include the name of the Veteran, the Veteran’s claim number, and a statement that the appeal is withdrawn. Id. The Veteran’s notification containing his request to withdraw the issues on appeal concerning issues concerning entitlement to service connection for GERD and a lumbar spine disorder, including DDD and Tarlov cyst has been reduced to writing, and it contains his name and claim number. The Board has not yet issued a decision concerning these claims, thus the criteria are met for withdrawal of the claims. When pending appeals are withdrawn, there are no longer allegations of factual or legal error with respect to the issue that had been previously appealed. In such an instance, dismissal of the pending appeal is appropriate. See 38 U.S.C. § 7105 (d) (2012). Accordingly, further action by the Board on these issues is not appropriate and the appeal should be dismissed. Id. Effective Date Under 38 C.F.R. § 3.400 (o)(2), the effective date of an award of increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if application is received within one year from such date; otherwise, the effective date will be the date of VA receipt of the claim for increase, or the date entitlement arose, whichever is later. Id.; see also 38 U.S.C. A. § 5110 (a), (b)(2); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997). The Court has held that 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) are applicable only where an increase in disability precedes a claim for an increased disability rating; otherwise the general rule of 38 C.F.R. § 3.400 (o)(1) applies. See Harper at 126. Thus, three possible dates may be assigned depending on the facts of the case: (1) if an increase in disability occurs after the claim is filed, the date that the increase is shown to have occurred (date entitlement arose) (38 C.F.R. § 3.400 (o)(1)); (2) if an increase in disability precedes the claim by a year or less, the date that the increase is shown to have occurred (factually ascertainable) (38 C.F.R. § 3.400 (o)(2)); (3) if an increase in disability precedes the claim by more than a year, the date that the claim is received (date of claim) (38 C.F.R. § 3.400 (o)(2)). Harper, 10 Vet. App at 126. Thus, determining an appropriate effective date for an increased rating under the effective date regulations involves an analysis of the evidence to determine (1) when a claim for an increased rating was received and, if possible, (2) when the increase in disability actually occurred. 38 C.F.R. §§ 3.155, 3.400(o)(2). Effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase, and revised 38 C.F.R. § 3.400 (o)(2). These amendments are applicable with respect to claims and appeals filed on or after March 24, 2015, and, therefore, are not applicable in the present case. Id. at 57,686. Under the former regulations, any communication indicating intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155 (a) (2014). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Under former 38 C.F.R. § 3.157 (a) (which was in effect prior to March 24, 2015), a report of examination or hospitalization would be accepted as an informal claim for increase or to reopen, if the report relates to a disability that may establish entitlement. However, there must first be a prior allowance or disallowance of a claim. See 38 C.F.R. § 3.157 (b) (2014). VA is required to identify and act on informal claims for benefits. 38 U.S.C. § 5110(b)(3); 38 C.F.R. §§ 3.1 (p), 3.155(a). See also Servello v. Derwinski, 3 Vet. App. 196, 198-200 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 1. Entitlement to an effective date earlier than May 6, 2013 for the award of an increased disability rating of 60 percent for Hepatitis C The Veteran contends that he is entitled to an effective date earlier than May 6, 2013 for the assignment of a 60 percent evaluation for Hepatitis C. In cases where a claim for increase is filed within the one-year appeal period following an RO decision, VA must consider 38 C.F.R. § 3.156 (b) which provides that new and material evidence received prior to the expiration of the one-year appeal period following an RO rating decision must be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. The Board must evaluate submissions received during the one-year appeal period following an RO decision denying a higher rating and determine whether they contain new and material evidence relating to the denied claim, regardless of whether the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). Here, on February 27, 2009, VA received correspondence from the Veteran indicating that he desired an increased rating for his service-connected Hepatitis C. At an April 2009 VA liver, gall bladder, and pancreas examination, the Veteran reported that he had right side pains, regular nausea, and often felt sick. In the past 12 months, he had two days of episodes of colon or other abdominal pain, distention, nausea, or vomiting. He did not have any attacks of severe abdomen pain in the past 12 months. He exhibited weakness, malaise, and abdominal pain, but no anorexia, abdominal distention, or jaundice. There was no evidence of weight change, malnutrition, or abnormal abdominal examination. There was a mild effect on his chores, shopping, exercise, recreation, traveling feeding, bathing, and dressing and he was prevented from doing sports. In a May 2009 rating decision, issued on June 1, 2009, the RO continued the 20 percent evaluation assigned for Hepatitis C. On a VA Form 9 received on May 26, 2010, the Veteran specifically stated that his Hepatitis C increased in severity and requested a new VA examination. As the Veteran’s allegations of his disability increasing in severity constitutes new and material evidence, within a year following the rating decision issued in June 2009, the Board finds that the rating decision issued in June 2009 did not become final. 38 C.F.R. § 3.156 (b) (2015); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that, under the provisions of 38 C.F.R. § 3.156 (b), new and material evidence received during the appeal period after a decision will serve to preclude that decision from becoming final unless that decision is reconsidered). In November 2012, the Veteran submitted a private psychological evaluation. Dr. K.O. noted that the Veteran had Hepatitis C as well as his complaints of daily fatigue and malaise with days that he was incapacitated from work while in the military. He continued to experience similar symptoms as well as symptoms of vomiting, nausea, arthralgia, and right upper quadrant pain related to his Hepatitis C. During his December 2012 hearing, the Veteran indicated that his Hepatitis C was worse. In a decision issued on May 6, 2013, the Board referred the Veteran’s increased rating claim for Hepatitis C to the RO for appropriate ation. The Veteran was afforded a VA Hepatitis, cirrhosis, and other liver conditions disability benefits questionnaire (DBQ) in August 2014. During the examination, the examiner indicated that the Veteran exhibited near-constant debilitating fatigue and malaise; intermittent anorexia, nausea, vomiting, and right upper quadrant pain; and daily arthralgia. He also had hepatomegaly. He exhibited incapacitating episodes due to such symptoms for a duration of six weeks or more during the past 12 months. Thereafter in a September 2014 rating decision, the RO granted a higher 60 percent disability rating for Hepatitis C, effective May 6, 2013, the date the Board referred the matter to the RO and the RO inferred a claim for an increased rating for Hepatitis C. See Bond v. Shinseki, 659 F.3d at 1367-68; 38 C.F.R. § 3.156 (b). However, as the Veteran claimed that his disability increased in severity on May 26, 2010, within a year of the rating decision issued in June 2009 becoming final, the date of the Veteran’s informal claim for an increased rating for Hepatitis C in this case is February 27, 2009. The Veteran’s Hepatitis C is rated under 38 C.F.R. § 4.11, Diagnostic Code (DC) 7354. Under DC 7354, a 60 percent rating is warranted when there is daily fatigue, malaise, and anorexia, with substantial weight loss (or other indication of malnutrition), and hepatomegaly, or; incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks during the past 12-month period, but not occurring constantly. When determining the date for entitlement to a higher 60 percent disability rating for Hepatitis C arose, the Board has considered the Veteran’s lay statements, on the Form 9 received on May 26, 2010, claiming that his symptoms of Hepatitis C had increased in severity for which he requested a new VA examination. To further support his contentions, he submitted a November 2012 private evaluation by Dr. K.O. and during his December 2012 hearing testimony, he further indicated that his Hepatitis C increased in severity. When the Veteran was ultimately afforded a VA examination in August 2014, the examination results supported his contentions and findings by Dr. K.O. that his Hepatitis C had, in fact, increased in severity. Therefore, considering the medical evidence supporting the Veteran’s contentions in his May 26, 2010 statement that his disability had increased in severity, resolving all reasonable doubt in favor of the Veteran, the totality of the evidence supports a finding of May 26, 2010 as the date entitlement arose to a 60 percent disability rating for Hepatitis C. The Board observes that while the Veteran’s February 27, 2009 claim remained pending at the time of the May 26, 2010 statement, the Board nevertheless finds that an earlier effective date is not warranted because entitlement to a 60 percent raring did not arise prior to May 26, 2010. In this regard, VA treatment records and the April 2009 VA examination did not show daily fatigue, malaise, and anorexia, with substantial weight loss and hepatomegaly or incapacitating episodes of at least 6 weeks in the past 12-month period. Overall the evidence does not support entitlement to a 60 percent rating prior to May 26, 2010. In this regard, even considering evidence dated within one year prior to receipt of the earlier February 27, 2009 claim, the requirements for a 60 percent rating for Hepatitis C are not met or it is not factually ascertainable that there was an increase in the disability. 2. Entitlement to an effective sate earlier than May 6, 2013 for the award of an increased disability rating of 100 percent for major depressive disorder and psychophysiological pain disorder (hereinafter addressed as psychiatric disorder). The Veteran contends that he is entitled to an effective date earlier than May 6, 2013 for the assignment of a 100 percent evaluation for his service-connected psychiatric disorder. In cases where a claim for increase is filed within the one-year appeal period following an RO decision, VA must consider 38 C.F.R. § 3.156 (b) which provides that new and material evidence received prior to the expiration of the one-year appeal period following an RO rating decision must be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. The Board must evaluate submissions received during the one-year appeal period following an RO decision denying a higher rating and determine whether they contain new and material evidence relating to the denied claim, regardless of whether the relevant submission might otherwise support a new claim. Bond v. Shinseki, 659 F.3d 1362, 1369 (Fed. Cir. 2011). By way of history, on June 11, 2007, the Veteran submitted a claim for a psychiatric disorder. In a May 2013 Board decision, implemented by a rating decision issued in November 2013, the Veteran was awarded service connection for a psychiatric disorder. The rating decision assigned a 50 percent disability rating, effective June 11, 2007. Subsequently, in November 2013, the Veteran submitted a VA Form 21-8940, indicating that his psychiatric disorder, in part, prevented him from securing or following any substantially gainful occupation. The Veteran was afforded a VA examination in August 2014 that assessed the severity of his psychiatric disorder. In a September 2014 rating decision, the RO increased the rating to 100 percent effective May 6, 2013. As the Veteran reported that his psychiatric disorder prevented employment on the November 2013 VA Form 21-8940 and he was afforded a VA examination in August 2014 to assess the severity of his psychiatric disorder, such records constitute new and material evidence, within a year following the rating decision issued in November 2013, the Board finds that the rating decision issued in November 2013 did not become final. 38 C.F.R. § 3.156 (b) (2015); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011) (holding that, under the provisions of 38 C.F.R. § 3.156 (b), new and material evidence received during the appeal period after a decision will serve to preclude that decision from becoming final unless that decision is reconsidered). As this appeal stems from an initial grant of service connection for a psychiatric disorder, that date serves as the date of claim. As such, it is necessary to determine whether, sometime between June 11, 2007, and May 6, 2013, entitlement to an increased rating for the Veteran’s psychiatric disorder is shown to have occurred (date entitlement arose). To do so, the rating criteria for this disability must be examined. The Veteran’s psychiatric disorder is rated under the General Rating Formula for Mental Disorders. Under this formula, a 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, Code 9434. As the United States Court of Appeals for the Federal Circuit recently explained, evaluation under 38 C.F.R. § 4.130 is “symptom-driven,” meaning that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating” under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir.2013). The symptoms listed are not exhaustive, but rather “serve as examples of the type and degree of symptoms, or their effects, that would justify a particular rating.” Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). In the context of determining whether a higher disability evaluation is warranted, the analysis requires considering “not only the presence of certain symptoms [,] but also that those symptoms have caused occupational and social impairment in most of the referenced areas” - i.e., “the regulation... requires an ultimate factual conclusion as to the Veteran’s level of impairment in ‘most areas.’” Vazquez-Claudio, 713 F.3d at 117-18; 38 C.F.R. § 4.130, Diagnostic Code 9434. Further, when evaluating a mental disorder, the Board must consider the “frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission,” and must also “assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination.” 38 C.F.R. § 4.126 (a). A review of the pertinent medical evidence dated between June 7, 2007, and May 6, 2013, includes VA treatment records that show ongoing treatment for a psychiatric disorder. In a November 2012 private psychological evaluate on, behavioral observations revealed that the Veteran appeared older than his chronological age. He presented in disheveled clothing; evidenced a sad affect; and reported problems with memory, concentration, insomnia, appetite problems, anxiety, and worry. He had feelings of worthlessness. Dr. K. Olsen reported that the Veteran’s condition, which included his major depressive disorder, was chronic, permanent, and left him totally unable to work. Additional evidence includes, a November 2013 VA Form 21-8940, on which the Veteran indicated that his major depressive disorder, pain disorder, back/coccyx pain prevented him from serving or following any substantially gainful employment. He reported that his disability affected full-time employment in January 2003. The Veteran underwent a VA mental disorders DBQ in August 2014, which serves as the basis for the 100 percent rating for his PTSD. The examiner found that the Veteran’s service-connected psychiatric disorder caused total occupational and social impairment. The Veteran reported that he was on his third marriage and had remained married to his current wife since 2006. He resided with his wife and daughter. His symptoms consisted of neglect of personal appearance, depressed mood, anxiety, chronic sleep impairment, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or work-like setting. On review, the evidence first demonstrates that the symptoms of the Veteran’s service-connected psychiatric disorder caused both total occupational and social impairment in August 2014. See August 2014 VA Mental Disorders DBQ. The rest of the evidence of record does not document a disability that more nearly approximates total occupational and social impairment until the August 2014 examination, which is when is when the increase is shown to have occurred. The Board has also considered evidence in the year prior to the Veteran’s June 11, 2007 claim, in which there was no factually ascertainable increase prior to June 11, 2007 date of claim. Although the May 6, 2013 effective date reflects the date the Board issued the decision granting service connection for a psychiatric disorder, the Veteran is already assigned an effective date that is earlier than the date of the examination, which is when the increase in severity is shown to have occurred. See 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). As such, an effective date earlier than the currently assigned effective date of May 6, 2013 must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. 3. Entitlement to an effective date earlier than May 6, 2013 for the award of SMC based on Aid and Attendance/Housebound criteria. The Veteran claims that he is entitled to an effective date earlier than May 6, 2013 for the award of SMC based on aid and attendance/housebound criteria. In a September 2014 rating decision, the RO awarded entitlement to special monthly compensation under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350(i) on account of major depressive major depressive disorder and psychophysiological pain disorder rated at 100 percent disabling and an additional service-connected disability of Hepatitis C being independently ratable at 60 percent or more, effective May 6, 2013. Although the Board has awarded an earlier effective date of May 26, 2010 for the assignment of a 60 percent disability rating for Hepatitis C, the effective date for the 100 percent rating assigned for the psychiatric disorder remains May 6, 2013. Therefore, the Veteran does not meet the criteria for SMC under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350(i) until May 6, 2013. Also, the record does not reflect that any time prior to the May 6, 2013, effective date of the award of SMC at the level provided under 38 U.S.C. 1114 (s), any communication or action indicating an intent to apply for SMC, including for being so helpless as to be in need of regular aid and attendance, which adequately identified any such benefit being sought, was received by VA. (CONTINUED ON NEXT PAGE) Accordingly, an effective date earlier than May 6, 2013, for SMC, under 38 U.S.C. § 1114 (s) and 38 C.F.R. § 3.350(i) must be denied. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 53-56. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD L. Crohe, Counsel