Citation Nr: 0502446 Decision Date: 02/02/05 Archive Date: 02/15/05 DOCKET NO. 98-11 730 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUES 1. Whether new and material evidence has been received to reopen the previously denied claim of entitlement to service connection for diabetes mellitus, and if so, entitlement to service connection for diabetes mellitus. 2. Entitlement to an evaluation in excess of 10 percent for a right knee disability. 3. Entitlement to an evaluation in excess of 10 percent for a left knee disability. REPRESENTATION Appellant represented by: Non Commissioned Officers Association WITNESSES AT HEARING ON APPEAL Appellant and his spouse ATTORNEY FOR THE BOARD Jeffrey J. Schueler, Counsel INTRODUCTION The appellant had active service from July 1959 to September 1979. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. In a May 1998 rating decision, the RO denied the appellant's claims for evaluations in excess of 10 percent for right and left knee disabilities. The appellant disagreed and this appeal ensued. In October 1999, the Board remanded these claims for additional evidentiary development. While this development was being accomplished, the RO issued rating decisions denying the application to reopen the previously denied claim of service connection for diabetes mellitus. The appellant disagreed with this determination as well, and perfected an appeal of this claim. Thus, the issues for appellate review are as stated on the title page of this decision. In July 1999, the appellant testified at a hearing before a Veterans Law Judge (a position formerly titled "Board Member") regarding the right and left knee claims. A transcript of the hearing is of record. That Judge was designated by the Chairman of the Board to conduct that hearing pursuant to 38 U.S.C.A. § 7107(c) (West 1991) and by law was required to participate in any decision made regarding those issues. By an October 2004 letter, the Board informed the appellant that the Judge was no longer employed by the Board, told him he had a right to another hearing by another Judge, and asked him to chose within 30 days whether he wanted another hearing. As the Board has received no response from the appellant in the 30 days after the issuance of the October 2004 letter, the Board may proceed with review of the case. In this decision, the Board denies the appellant's application to reopen the previously denied claim of service connection for diabetes. The claims for increased evaluations for the right and left knee disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. In October 1990, the RO notified the appellant of the denial of his claim of entitlement to service connection for diabetes mellitus; the appellant did not timely initiate an appeal of this determination. 2. Additional evidence submitted since October 1990 fails to show a medical nexus between the current findings of diabetes mellitus initially shown in December 1981 and the appellant's service. CONCLUSION OF LAW Evidence received since October 1990 is new but is not material; the October 1990 rating decision is final and is not reopened. 38 U.S.C.A. §§ 1110, 5107, 5108 (West 2002); 38 C.F.R. §§ 3.104(a), 3.156(a) (2001 and 2004). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duty to Assist The VCAA redefined VA's duty to assist and enhanced its duty to notify a claimant as to the information and evidence necessary to substantiate a claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156, 3.159, and 3.326 (2004) (regulations implementing the VCAA). The VCAA prescribed that the amendments to 38 U.S.C. § 5107 are effective retroactively to claims filed and pending before the date of enactment. 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions) (West 2002). The United States Court of Appeals for the Federal Circuit has ruled that the retroactive effective date provision of the Act applies only to the amendments to 38 U.S.C. § 5107. See Bernklau v. Principi, 2 91 F.3d 795 (Fed. Cir. 2002); Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002). The VA regulations promulgated to implement the Act provide for the retroactive effect of the regulations, except as specified. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). The initial claims involved in this case were received in September 1997, and there is no issue as to provisions of forms or instructions for applying for the benefits. 38 U.S.C.A. § 5102 (West 2002); 38 C.F.R. §§ 3.150, 3.159(b)(2) (2004). The United States Court of Appeals for Veteran Claims' (Court's) decision in Pelegrini v. Principi (Pelegrini II), No. 01-944, U.S. Vet. App. (June 24, 2004) (granting motion for reconsideration of and vacating Pelegrini v. Principi (Pelegrini I), 17 Vet. App. 412 (2004)), held, in part, that a VCAA notice, as required by 38 U.S.C. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In this case, the initial AOJ decision was made before November 9, 2000, the date the VCAA was enacted. VA believes Pelegrini II is incorrect as it applies to cases where the initial AOJ decision was made prior to the enactment of the VCAA and is pursuing further judicial review on this matter. However, assuming solely for the sake of argument and without conceding the correctness of Pelegrini II, the Board finds any defect with respect to the VCAA notice requirement in this case to be harmless error for the reasons specified below. VA must provide the claimant and the claimant's representative, if any, notice of required information and evidence not previously provided that is necessary to substantiate the claims. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2004). The VCAA notice must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; (3) inform the claimant about the information and evidence the claimant is expected to provide; and (4) request or tell the claimant to provide any evidence in the claimant' s possession that pertains to the claim, or something to the effect that the claimant should "give us everything you've got pertaining to your claim(s)." Pelegrini II, No. 01-944, U.S. Vet. App., at 10; see also Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). After the appellant filed his initial claim in 1997, the RO sent him a June 1998 letter notifying him of the initial denial of his claims. Upon his disagreement with the rating decision, the RO issued a June 1998 statement of the case, and, after receipt of additional evidence, an October 1998 supplemental statement of the case, each of which listed the evidence considered, the applicable law and rating criteria, and the reasons for the decision. By an August 1998 letter, the RO told the appellant of a scheduled hearing in September 1998; a transcript of the hearing is of record. By a July 1999 letter, the RO told the appellant of a scheduled hearing before a Veterans Law Judge later that month; a transcript of that hearing is of record. In October 1999, when the Board remanded the case to the RO for additional evidentiary development, the appellant received a copy of that remand, thereby informing him of the evidence deemed necessary by the Board. Pursuant to these remand directives, the RO sent the appellant November 1999 and June 2000 letters asking for information regarding all medical treatment for the claimed disabilities. In a May 2000 statement, the appellant reported he had not had any treatment for his knees. In further letters, in August 2000, September 2000, August 2001, December 2001, March 2003, and July 2003, the RO informed the appellant of the information and evidence necessary to substantiating the claims and what information and evidence he should provide and what assistance VA could provide. In a December 2002 letter, the RO told the appellant of an upcoming hearing in February 2003, a transcript of which is of record. Upon receipt of additional evidence, the RO readjudicated the knee claims, adjudicated the diabetes claim, and issued a statement of the case in September 2000 and supplemental statements of the case in April 2000, September 2000, October 2002, and April 2003. VA has informed the appellant of the information and evidence necessary to substantiate the claim. The RO notified him of the need for information or evidence concerning the claim. In response, he identified the sources of his treatment for a seizure disorder and records from these sources are associated with the claims file. The appellant has been informed of the information and evidence not of record that is necessary to substantiate the claim, of the information and evidence he was expected to provide, of the information and evidence that VA would seek to obtain, and of the need to provide any information and evidence in his possession pertinent to the claim. See Pelegrini II, No. 01-944, U.S. Vet. App., at 10. There is no indication that additional notification of the types of evidence needed to substantiate the claim, or of VA' s or the appellant's responsibilities with respect to the evidence, is required. See Quartuccio v. Principi, 16 Vet. App. 183 (2002). Even if the initial notice in this case did not comply with Pelegrini II, any notice defect in this case was harmless error. The content of the aggregated notices, including the notice letters subsequently issued, fully complied with the requirements of 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2004). After VA provided this notice, the appellant communicated on multiple occasions with VA, without informing it of pertinent evidence. He has been provided with every opportunity to submit evidence and argument in support of his claim, and to respond to VA notices. Therefore, not withstanding Pelegrini II, to decide the appeal would not be prejudicial error to the appellant. VA must also make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claims for the benefits sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A(a) (West 2002); 38 C.F.R. § 3.159(c), (d) (2004). Such assistance includes making every reasonable effort to obtain relevant records (including private and service medical records and those possessed by VA and other Federal agencies) that the claimant adequately identifies to the Secretary and authorizes the Secretary to obtain. 38 U.S.C.A. § 5103A(b) and (c) (West 2002); 38 C.F.R. § 3.159(c)(1-3) (2004). Assistance shall also include providing a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R. § 3.159(c)(4) (2004). The evidence of record includes the service medical records, VA and private treatment records, documents received on multiple occasions from the appellant, his representative, and a friend, and the transcript of the appellant's testimony at September 1998 and July 1999 hearings. The RO made reasonable efforts to obtain relevant records adequately identified by the appellant; in fact, it appears that all evidence identified by the appellant relative to this claim has been obtained and associated with the claims folder. The claims file also includes VA examinations prepared in December 1997, December 1999, and January 2001. There is no reasonable possibility further assistance might substantiate the claims. See 38 U.S.C.A. § 5103A(2) (West 2002); 38 C.F.R. § 3.159(d) (2004). On appellate review, there are no areas in which further development is needed. II. Application to Reopen Diabetes Mellitus Claim In an October 1990 rating action, the RO denied the appellant's claim of entitlement to service connection for diabetes mellitus. The RO notified the appellant of this action by letter dated in October 1990. In a December 1999 statement, the appellant again claimed service connection for diabetes. (It is also noted that the appellant discussed a claim of service connection for diabetes in a March 1992 statement and that no action was taken in response to that statement.) The RO issued rating decisions in December 1999, April 2000, and June 2000, denying the appellant's application to reopen the previously denied claim. The appellant disagreed and this appeal ensued. The appellant seeks to reopen the previously denied claim. Whether new and material evidence has been submitted is a preliminary issue to the reopening of the claim. The Board has jurisdiction to consider the issue of whether new and material evidence has been submitted because that issue is part of the same "matter" of whether the veteran is entitled to service connection for this disability. Bernard v. Brown, 4 Vet. App. 384, 391 (1993) (interpreting the provision contained in 38 U.S.C.A. § 7104(a) that the Board has jurisdiction to decide "all questions in a matter" on appeal). If new and material evidence is submitted, the claim will be reopened and adjudicated on the merits. 38 U.S.C.A. § 5108 (West 2002). "The Board does not have jurisdiction to consider [the previously adjudicated claim] unless new and material evidence is presented, and before the Board may reopen such a claim, it must so find." Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Board is neither required nor permitted to analyze the merits of a previously disallowed claim if new and material evidence has not been submitted. Butler v. Brown, 9 Vet. App. 167, 171 (1996). No other standard than that articulated in the regulation applies to the determination whether evidence is new and material. See Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). In regulations adopted pursuant to the VCAA, the definition of new and material evidence has been changed. See 38 C.F.R. § 3.156(a) (2003). However, as noted above, the new regulatory definition is effective only for claims to reopen received on or after August 29, 2001. See 66 Fed. Reg. 45,620 (Aug. 29, 2001). This claim to reopen was prior to August 29, 2001, and the following regulation defining new and material evidence applies: New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be considered in order to fairly decide the merits of the claim. 38 C.F.R. § 3.156(a) (2001) (emphasis in the original). The evidence to be reviewed for sufficiency to reopen a claim is the evidence submitted since the most recent final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 284 (1996). Thus, evidence submitted since the September 1998 Board decision is of concern for the purpose of reopening this claim. The evidence is presumed credible for the purposes of reopening the claim unless it is inherently false or untrue, or it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216, 220 (1995); Justus v. Principi, 3 Vet. App. 510, 513 (1992). See also Robinette v. Brown, 8 Vet. App. 69, 75-76 (1995). In denying the claim in October 1990, the RO found that the service medical records showed no indications of diabetes in service and that the first indication of diabetes was in December 1981, more than two years after separation from service. In other words, the RO acknowledged that there was a current diagnosis of diabetes as of December 1981, though there was no medical evidence of a nexus, or link, between the diabetes beginning in 1981 and his service more than two years earlier. To reopen the claim, the additional evidence received since October 1990 must include medical evidence of such a nexus. This additional evidence includes VA clinical records for a variety of periods, beginning in November 1990 and through recent records in 2003. These documents generally show diagnoses of and treatment for diabetes mellitus as of the dates of those records. As such, they provide cumulative evidence of the present diagnosis of diabetes, a fact acknowledged by VA when it considered his claim in October 1990. This evidence is new, though not material to his claim. Also of record are copies of VA clinical records dated from January 1980 to December 1981 that were previously of record when the RO rendered its decision in October 1990. The records included copies of the December 1981 clinical records reporting a diagnosis of diabetes. These records are merely duplicative of records previously before decisionmakers and are therefore not new. The claims file includes VA examination reports in December 1997, December 1999, and January 2001, all in evaluation of the service- connected knee disabilities; none of the examination reports contain more than a diagnosis of a past medical history of diabetes mellitus. In none of this evidence is there any medical comment as to the etiology of the diabetes, other than that it had its onset when the appellant was an adult. As the reason for the earlier denial was that there was no medical evidence linking the diabetes to service, the additional evidence that does not address this question is new, but not material. In the years since the earlier rating decision in October 1990, VA has amended its regulations to provide for presumptive service connection for type-II diabetes mellitus, if a veteran was exposed to an herbicide agent during active military, naval, or air service, though there be no record of such disease during service. For this presumptive to apply, diabetes would have to be manifest to a degree of 10 percent or more at any time after service. A veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning in January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service. "Service in the Republic of Vietnam" includes service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam. The appellant maintained in a September 2001 statement that he serviced aircraft in Thailand that had flown close ground support missions in Vietnam. He also reported that the only time he was in the Republic of Vietnam was as a passenger on a aircraft. He reported he was transiting from his duty station in Thailand to the Continental United States, when his plane made a stop at Saigon and all doors were left open. He indicated service department records showed the aircraft he traveled on flew over Vietnam twice (once each way), though the copies of service department records he provided showed no more than that he traveled on emergency-leave orders from Korat Air Base, Thailand, to Travis Air Force Base, California, in February 1974, and presumably returned to Thailand sometime soon thereafter. The principal question, given this change in the regulations, is whether the evidence shows he served or visited Vietnam in February 1974. If so, then the diagnosis of diabetes and a determination of the disease manifested at a 10 percent rate would entitle him to service connection for diabetes. However, the service department records show nothing more than that the appellant flew between Thailand and California in February 1974. They do not show any stop in Saigon as contended by the appellant. Though such a stop is possible, the record contains no evidence other than the appellant's own recollection on which to base such a conclusion. Instead, the service department records show his duty assignment in Thailand and place him on an aircraft flying between Thailand and California, without indication of a stop for any period in Saigon or other areas of Vietnam. Despite the change in regulation, and even if the claim were to be reopened based on this change in the regulation, there is no documentation attesting to the appellant's visitation to the Republic of Vietnam that would warrant application of the presumptions of section 3.309(e). In light of the evidence of record and based on this analysis, it is the determination of the Board that the additional evidence received since the October 1990 rating decision is new, but is not material. As such, the claim of entitlement to service connection for diabetes mellitus is not reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2001). ORDER The application to reopen the previously denied claim of entitlement to service connection for diabetes mellitus is denied. REMAND By a February 1980 rating decision, the RO established service connection for chondromalacia of the right knee with Osgood-Schlatter's Disease and for chondromalacia of the left knee, each assigned a noncompensable evaluation. In the October 1990 rating decision, the RO increased the evaluations to 10 percent disabling for each knee. In September 1997, the appellant filed claims seeking ratings in excess of 10 percent disabling. The RO initially denied these claims in a May 1998 rating decision, from which this appeal was perfected. The 10 percent evaluation for each knee disability has been assigned in this case on the basis of Diagnostic Code 5257 for instability of the knee and Diagnostic Codes 5010 for arthritis. Under Diagnostic Code 5257, a 10 percent evaluation may be assigned where the evidence shows slight recurrent subluxation or lateral instability. A 20 percent evaluation may be assigned for moderate recurrent subluxation or lateral instability, and a 30 percent evaluation may be assigned for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a (2004). The criteria of Diagnostic Code 5010 for traumatic arthritis is rated based on the criteria of Diagnostic Code 5003 for degenerative arthritis established by x-ray findings, which will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. For the knee disabilities, that diagnostic criteria if found at Diagnostic Codes 5260 and 5261 for limitation of flexion and extension, respectively. Under Diagnostic Code 5260 for limitation of flexion of the leg, a noncompensable evaluation may be assigned where evidence demonstrates flexion limited to 60 degrees. For flexion limited to 45 degrees, a 10 percent evaluation may be assigned. For flexion limited to 30 degrees, a 20 percent may be assigned. For flexion limited to 15 degrees, a 30 percent evaluation may be assigned. Under Diagnostic Code 5261 for limitation of extension of the leg, a noncompensable evaluation may be assigned for extension limited to 5 degrees. Extension limited to 10 degrees warrants a 10 percent evaluation; extension limited to 15 degrees warrants a 20 percent evaluation; extension limited to 20 degrees warrants a 30 percent evaluation; extension limited to 30 degrees warrants a 40 percent evaluation; and extension limited to 45 degrees warrants a 50 percent evaluation. When, however, the limitation of motion for the knees is noncompensable under the applicable criteria, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, the knees are to be rated as follows: 20 percent: With x-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. 10 percent: With x-ray evidence of involvement of two or more major joints or two or more minor joint groups. (These ratings based on x-ray findings will not be combined with ratings based on limitation of motion.) 38 C.F.R. § 4.71a (2003). Arthritis and instability of the knee may be rated separately under Diagnostic Codes 5003/5010 and 5257. For example, a knee disorder rated under Diagnostic Code 5257 may involve additional disability justifying a separate rating if there is limitation of motion under Diagnostic Codes 5260 or 5261 that meets the criteria for a noncompensable rating. See VAOPGCPREC 23-97, citing Degmetich v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). Therefore, if a claimant has a disability rating under Diagnostic Code 5257 for instability of the knee and there is also x-ray evidence of arthritis and limitation of motion severe enough to warrant a noncompensable evaluation under Diagnostic Codes 5260 or 5261, a separate rating is available under Diagnostic Codes 5003 or 5010. VAOPGCPREC 9-98. As the criteria for rating these disabilities is predicated on a loss of motion, an evaluation of the disability in light of that criteria must consider whether there is additional functional loss due to pain on motion. Weakness is considered as important as limitation of motion. Any part that becomes painful on use must be regarded as seriously disabled. It is the intent of the rating schedule to recognize painful motion with joint or periarticular pathology as productive of disability. 38 C.F.R. §§ 4.40, 4.45 (2003); DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1993). As the criteria of Diagnostic Code 5257 are not predicated on loss of range of motion, an analysis of the impact of pain and functional loss is not necessary when employing that criteria. Johnson v. Brown, 9 Vet. App. 7 (1996). The rule against pyramiding, 38 C.F.R. § 4.14 (2003), does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. The most recent VA examination, in January 2001, discussed the severity of the right knee disability, though it failed to address the left knee disability. Other VA examinations of record, in December 1997 and December 1999, addressed the symptoms of both knees. To ensure a thorough evaluation of the severity of both knee disabilities, the case is remanded for a comprehensive VA examination. The appellant should be given the opportunity to submit additional evidence and argument. VA must ensure it fulfills its duty to notify the appellant of the evidence necessary to substantiate his claim. See 38 U.S.C.A. § 5103 (West 2002). The VA should assist the appellant in these matters prior to the Board's review. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The case is remanded to the RO via the AMC in Washington, D.C., for the following: 1. The RO must review the claims file and ensure that all obligations under the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5102, 5103, and 5103A (West 2002); 38 C.F.R. § 3.159 (2004); and the holdings in Quartuccio v. Principi, 16 Vet. App. 183 (2002) and Charles v. Principi, 16 Vet. App. 370 (2002), have been satisfied. In particular, the RO must inform the claimant (1) about the information and evidence not of record that is necessary to establish the claim; (2) about the information and evidence that VA will seek to provide; (3) about the information and evidence the claimant is expected to provide; and (4) request or tell him to provide any evidence in his possession that pertains to his claim. The claims file must include documentation that there has been compliance with the VA's duties to notify and assist a claimant as set forth in the VCAA as specifically affecting the issue on appeal. 2. The RO should arrange for a VA orthopedic examination to determine the nature and severity of the service- connected right and left knee disabilities. Send the claims folder to the physician for review; any report written by the physician should specifically state that such a review was conducted. After reviewing the available medical records and examining the appellant, ask the physician to opine - based on review of the evidence of record, examination of the appellant, and her or his professional expertise - on the nature of the current residuals. Ask the physicians to indicate the extent or limitation of flexion and extension of both the right and left knees; the presence and effect of any ankylosis, instability, subluxation, dislocation, or degenerative changes affecting the knees; and any additional functional loss due to pain on use. A complete rationale should be given for all opinions and conclusions expressed. 3. Following any additional development deemed appropriate, the RO should readjudicate the claims currently in appellate status. If a benefit sought is not granted, the appellant and his representative should be furnished with a supplemental statement of the case, to include all pertinent law and regulations, and an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration. The appellant has the right to submit additional evidence and argument on the matter herein remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) 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 The Veterans Benefits Act of 2003, Pub. L. No. 108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38 U.S.C. §§ 5109B, 7112). ____________________________________________ C. P. RUSSELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs