Tuesday, May 8, 2012

Single Judge Application, Kahana, 24 Vet.App. at 440; For Absence of Notation, Service Medical Records Must be Complete

Excerpts from decision below: "A. The Secretary's Examination Request The appellant contends that the Secretary's examination request, pertaining to the most recent VA medical opinion, inappropriately biased the examiner's opinion by essentially stating a factual premise unsupported by any Board finding. The appellant focuses in particular on the following paragraph: "Following examination and review of the claims folder, please provide an opinion as to whether any current disability of either knee is as likely as not the result of parachute jumps in service or if right knee disability is likely related to one-time complaint during service." R. at 84. This request clearly advances the premise that there was only a single complaint of a knee injury in service and requests the examiner to opine whether the appellant's current knee condition may be explained by that incident as documented in the STRs. The Court notes that the appellant argued below that there is a second STR, dated May 26, 1956, that "appears to state 'knees feel hurt.'" R. at 1305. The Court is unable to verify this assertion; the only document of that date in the record is illegible. See R. at 1707. In any view of the matter, this argument raises a dispute as to the content of the STRs. Therefore, the Court agrees with the appellant that the Secretary's instruction contained an inappropriate factual premise that may have truncated the examiner's review of the record. See Kahana v. Shinseki, 24 Vet.App. 428, 436 (2011) (Secretary erred by suggesting factual premise from what may have been an inaccurate summary of the service records)" ======================= "In any event, the Board made no finding of fact that the SMRs in the record may be regarded as complete. See Kahana, 24 Vet.App. at 440 (Lance, J., concurring) (in order to rely on absence of notations in SMRs, the Board must first find that the SMRs appear to be complete). The Secretary's examination request assumes a single in-service complaint of knee injury, which demands, as a logical prerequisite, complete SMRs. The Court concludes that the SMRs are useful only for what they distinctly show." ============================= ---------------------------------------- Designated for electronic publication only UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS NO. 11-0010 DONALD R. RAMSEY, APPELLANT, v. ERIC K. SHINSEKI, SECRETARY OF VETERANS AFFAIRS, APPELLEE. Before DAVIS, Judge. MEMORANDUM DECISION Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent. DAVIS, Judge: U.S. Army veteran Donald R. Ramsey appeals through counsel from a September 8, 2010, Board of Veterans' Appeals (Board) decision that denied entitlement to service connection for a lumbosacral spine and bilateral knee disabilities and a disability rating in excess of 20% for a service-connected right-ankle condition. For the following reasons, the Court will set aside the Board's September 2010 decision and remand the case for further proceedings consistent with this decision. The appellant primarily argues that the Board failed to obtain adequate VA medical opinions. With respect to the knee disabilities, he argues that the Secretary's examination request for the most recent VA medical examination impermissibly tainted the examiner's opinions by suggesting a factual premise that is unsupported byappropriate findings of the Board. He furtherargues that none of the VA examiners' conclusions are supported by an appropriate medical explanation, rendering the Board's statement of reasons or bases inadequate. Finally, he argues that the Board's denial of an increased rating for his right-ankle disability is not supported by a sufficient statement of reasons or bases that accounts for all the evidence of record. As discussed below, the Court finds merit in all of these arguments. The appellant served on active duty from July 9, 1954, to June 25, 1957, including service as a paratrooper. He alleges that he sustained multiple injuries in parachute jumps, including knee and back injuries, and ankle injuries, with one ankle injury resulting in service connection. He states that the symptoms of the knee and back injuries continued after service and worsened with time, eventuating in bilateral knee replacements and degenerative arthritis of the lumbar spine. He testified that while he sought medical attention as he could afford it after service, he primarily self- treated with ankle and knee braces and over-the-counter pain medication. The appellant sustained a postservice work-related injuryto his knees on June 29, 1989. The resultant proceedings of the Office of Workmen's Compensation Programs ( OWCP) indicated that he twisted the right knee, which placed stress on the left knee. See Record (R.) at 6 ("The OWCP's accepted injuries from this incident were bilateral knee sprains."), 314. However, later medical procedures revealed his knee conditions were much more complicated. The Board noted that "[a]n October 1989 magnetic resonance imaging (MRI) study of the right knee contains an impression noting degenerative changes with possible Grade I tears of the posterior limbs of the menisci, small joint effusion, a possible loose body, and a possible tear of the cruciate ligament." R. at 6; see also R. at 1033 (arthroscopy postsurgical record dated August 30, 1990, containing postoperative diagnosis that included: "1. Degenerative arthritis of the right knee 2. osteochondral loose body of the right knee 3. torn medial and lateral meniscus of the right knee 4. Chondromalacia of the patella, right knee"). Eventually, the OWCP paid for the bilateral knee replacements and the appellant retired soon thereafter, when he found he could no longer perform his duties as a sheet metal worker on airplanes at Tinker Air Force Base. I. ANALYSIS A finding of service connection or the denial thereof is a finding of fact that the Court reviews underthe "clearly erroneous" standard of review. See Dyment v. West, 13 Vet.App. 141, 144 (1999). The assignment of a disability rating is also a factual finding that the Court reviews under the "clearly erroneous" standard of review. Johnston v. Brown, 10 Vet.App. 80, 84 (1997). A finding of fact is clearly erroneous when the Court, after reviewing the entire evidence, "is left with the definite and firm conviction that a mistake has been committed." United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948); see also Gilbert v. Derwinski, 1 Vet.App. 49, 52 (1990). 2 The Board is required to consider all evidence of record and to consider and discuss all "potentially applicable" provisions of law and regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 593 (1991); see 38 U.S.C. § 7104(a); Weaver v. Principi, 14 Vet.App. 301, 302 (2001) (per curiam order). In rendering its decision, the Board must provide a statement of reasons or bases that is adequate to enable an appellant to understand the precise basis for its decision and to facilitate review in this Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57. To comply with these requirements, the Board must analyze the credibility and probative value of the evidence, account for the evidence it finds persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A claim for service connection must generally be supported by evidence demonstrating "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service." Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). In the decision here on appeal the Board made no findings as to the existence of present disabilities, although there appears to be no divergence between the opinions of private physicians and VA physicians that the appellant has "[d]egenerative joint disease of the bilateral knees status post total knee replacement," and "[m]ultilevel degenerative joint disease of the lumbar spine with spondylolisthesis and spinal canal stenosis." Record (R.) at 79 (February 2010 VA examination report); see also R. at 1494 (private physician's diagnosis of "multilevel degenerative disease and degenerative spondylolisthesis at L5-S1"). Service connection mayalso be established by chronicity and continuity of symptomatology. See 38 C.F.R. § 3.303(b) (2011). Continuity of symptomatology may establish service connection if a claimant can demonstrate that (1) a condition was "noted" during service; (2) there is postservice evidence of the same symptomatology; and (3) there is medical or, in certain circumstances, lay evidence of a nexus between the present disability and the postservice symptomatology. Barr v. Nicholson, 21 Vet.App. 303, 307 (2007) (citing Savage v. Gober, 10 Vet.App. 488, 495-96 (1997)). As the Board acknowledged during a hearing (see R. at 1298), there is record evidence 3 tending to support the first two requirements for obtaining service connection by continuity of symptomatology. The Board decision supports the occurrence of conditions noted in service. "The Veteran's service treatment reports (STRs) show that in May 1955, he was treated for a left knee injury related to a parachute jump, and that he was provided with a bandage. In July 1956, he was treated for a sprained back, and the reports note that an X-ray was negative." R. at 6. The appellant and members of his family testified that knee and back symptoms continued after service. See R. at 1230, 1232, 1280-82. As discussed more fully below, the Board criticized portions of this lay evidence but stopped short of finding it not credible. See Coburn v. Nicholson, 19 Vet.App. 427, 433 (2006) ("[T]he Board addressed conflicting facts but it never rendered a finding with regard to the credibility of [the appellant's] statements to the medical examiner."). Thus, as with many such cases, the result depends on the analysis of the nexus evidence. A. The Secretary's Examination Request TheappellantcontendsthattheSecretary's examination request, pertaining to the most recent VA medical opinion, inappropriately biased the examiner's opinion by essentially stating a factual premise unsupported by any Board finding. The appellant focuses in particular on the following paragraph: "Following examination and review of the claims folder, please provide an opinion as to whether any current disability of either knee is as likely as not the result of parachute jumps in service or if right knee disability is likely related to one-time complaint during service." R. at 84. This request clearly advances the premise that there was only a single complaint of a knee injury in service and requests the examiner to opine whether the appellant's current knee condition may be explained by that incident as documented in the STRs. The Court notes that the appellant argued below that there is a second STR, dated May 26, 1956, that "appears to state 'knees feel hurt.'" R. at 1305. The Court is unable to verify this assertion; the only document of that date in the record is illegible. See R. at 1707. In any view of the matter, this argument raises a dispute as to the content of the STRs. Therefore, the Court agrees with the appellant that the Secretary's instruction contained an inappropriate factual premise that may have truncated the examiner's review of the record. See Kahana v. Shinseki, 24 Vet.App. 428, 436 (2011) (Secretary erred by suggesting factual premise from what may have been an inaccurate summary of the service records) 4 It is also entirely unclear how the Board could legitimately conclude that the STRs were complete enough to ensure that the single knee incident evident from the available and legible records was the only in-service incident involving a knee injury. The appellant's service records were fire damaged and several of the documents in the record of proceedings (ROP) are but copies of charred fragments, with as much as half of their content obliterated. The response to VA's request for service records reads as follows: "Record is fire-related. The original SMRS [service medical records] are moldy or brittle and cannot be mailed. Copies of all available SMRS <>." R. at 1699 (emphasis added). This response at least suggests the possibility that the complete set of SMRs was unavailable. The appellant correctly notes that the first page of the separation examination report is missing from the record, raising the possibility that the SMRs may be incomplete in other ways. Furthermore, the Court's review of the SMRs reveals that certain entries are illegible (see R. at 1703, 1707); because the Board did not have the originals, it was in no better position to assess the illegible content. In any event, the Board made no finding of fact that the SMRs in the record may be regarded as complete. See Kahana, 24 Vet.App. at 440 (Lance, J., concurring) (in order to rely on absence of notations in SMRs, the Board must first find that the SMRs appear to be complete). The Secretary's examination request assumes a single in-service complaint of knee injury, which demands, as a logical prerequisite, complete SMRs. The Court concludes that the SMRs are useful only for what they distinctly show. The Secretary's inference,conveyed in the examination request, that the records demonstrate one and only one knee incident in service is impermissible. Because this inference injected a possibly false premise into the examiner's analysis, the matter requires a remand for a new medical opinion. B. The Knee Conditions 1. VA Examination Reports The Board relied on two VA medical examinations in denying service connection for the appellant's bilateral knee conditions. The VA examiner's analysis in February 2010 was as follows: [I]t is the opinion of this examiner that the degenerative joint disease of the bilateral knees status post total knee replacement is less likely than not secondary to the parachute jumps in the service and is also less likely than not secondary to the one 5 time complaint related to the left knee documented in the military record. The rationale is that there is no documentation regarding knee problems between his discharge date in 1957 and the documented workman's compensation injury in 1989. R. at 79. As the Board acknowledged in evaluating the appellant's medical evidence of nexus, "a bare conclusion that is unaccompanied by discussion, explanation, or citation to clinical findings during service" is entitled to no weight in a service-connection context. R. at 12; see also Nieves- Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008). The above-quoted passage from the examiner's report that purports to be a rationale is, in fact, a mere recital of the content of the available records. The examiner offered no medical analysis why she relied so heavily on lack of postservice medical records. For instance, she did not state that had the in-service stress and injuries eventuated in the degenerative conditions and loose bodies found in 1989 such effects would be expected to develop rapidly after service and demand medical attention. Cf.Kahana, 24 Vet.App. at 432 (Board made inappropriate medical finding that had the claimed injury occurred in service, it would have required medical treatment and thus should have been recorded in SMRs). Thus, the February 2010 medical examination report adds no medical support to the Board's analysis. The examiner may have intended to imply that the appellant's knee conditions were more likelythe result of the work-related injury. If so, however, she offered no explanation how the work- related incident in June 1989 could have resulted in the degenerative conditions, foreign bodies, and chondromalacia by October of the same year. The Board also discussed the results of an August 2006 VA joints examination, which resulted in the following opinion: I do not see any evidence [] that the veteran had continuation of his knee problems of that one instance when he was seen in service. So I cannot without resorting to speculation saythat the veteran's current knee problems are related to his one episode of knee pain while in service. It is more likely that the Workman's Comp injuries led to his problems, but I have no records of what the Workman's Comp injury was and when it had happened. R. at 1435. The second sentence neither adds nor detracts from the Board's analysis of the appellant's knee claims; it merely states that a supportive conclusion may not be drawn on the basis of the available in-service medical records. The third sentence is ludicrous on its face and the Court 6 is amazed that it is included in any serious analysis of this service- connection issue. Thus, to the extent that the Board may have regarded the appellant's knee conditions as the product of the work- related injury, neither VA examination report lends any support to that view. 2. The Board's Analysis Neither VA examiner discussed the implications of the lay evidence in the record that tends to support a continuity-of-symptomatology claim. In addition to the appellant's statements that his knee conditions began in service and worsened through the years (see R. at 76), the record contains statements from both of the appellant's sons that they observed symtpms of the appellant's knee conditions from a quite early age. In a statement dated January 22, 2009, his elder son recalled: "During the fifty years of my life, I observed first hand the agony and suffering my father has endured due to chronic pain and swelling in his knees . . . . I can remember him getting injections in his knees and having to wrap them and still struggling to get around." R. at 1230. He further stated that he observed his father experiencing knee pain "[f]or as long as I can remember." Id. This statement places the son's observations potentiallyas far back as the mid- 1960s and corroborates the appellant's testimony that he sought episodic medical assistance and self- treated with bandages in the years closely following service. The younger son stated that he " cannot remember a time when [the appellant] didn't limp . . . I remember his knees were swelled up all the time." R. at 1232. This statement puts the younger son's observations potentially back to the early 1970s, certainly much earlier than 1989. While VA medical examiners have no duty to discuss all the relevant evidence of record, the Board certainly does. The Board noted a "job application, and an associated 'Supplemental Experience Statement' (CSC Form 630), dated in July 1970, which shows that the Veteran stated, 'Paratrooper for 3 years without any serious injury.'" R. at 6. Later, in evaluating the lay evidence, the Board stated: "Although the Veteran has asserted that he began having a knee and low back symptoms during service, this is contradicted, to an extent, by his 1970 statement in his job application." R. at 14. Because the Secretary provides no record citation for this document, and the Court was unable to locate it in a 1264-page ROP, the Court's review is somewhat frustrated. The Board certainly mayconsider inconsistent statements in making credibility evaluations. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay 7 evidence and conflicting statements of the veteran in weighing credibility); Caluza v. Brown, 7 Vet.App. 498, 511 (1995) ("The credibility of a witness can be impeached by a showing of interest, bias, inconsistent statements, or, to a certain extent, bad character."). As with any determination, however, the Board must explain the reasoning behind its credibility assessments. Accepting the Board's characterization of the 1970 document, however, the Court views the content as equivocal at best. The appellant's perception of what he may have regarded as a "serious injury" must be viewed in the light of the fact that the SMRs document the fact that both his ankles had apparently been fractured. See R. at 75, 1725. At any rate, the Board really did not make a negative credibility finding as to the appellant's statements; it only stated that "the lay testimony is insufficiently probative to warrant a grant of any of the claims." R. at 14. The Board undertook no discussion or analysis of the statements of the appellant's sons. The Board concluded that "the [SMRs], and the post-service medical evidence, outweigh the Veteran's contentions to the effect that the Veteran has the claimed conditions that are related to service." R. at 15. The Board must reevaluate this assessment consistently with this decision. Citing Maxson v. Gober, 230 F.3d 1330 (Fed. Cir. 2000), the Board reiterated the gap of 31 years in medical records concerning the knee conditions and stated that this gap weighed against the claim. The Maxson case is a oft-cited and much-abused precedent. In Maxson the U.S. Court of Appeals for the Federal Circuit (Federal Circuit) was considering whether the absence of treatment records for an extended number of years could be considered in the context of rebutting the presumption of aggravation under 38 U.S.C. § 1153. Such consideration is consistent with the regulatory scheme pertaining to the presumption of aggravation because it is relevant to determining whether there was a permanent worsening in the preexisting disability. The Court does not read the case as setting forth any general principle that a gap in medical records, regardless of the factual context of a case, weighs against a service-connection claim. Thus, the mere absence of medical records, without more, does not support an inference that a veteran had no health problems in the intervening years. In general, there are many reasons that the record may not contain medical documentation for a period of years. Among these reasons is the possibility that a veteran's life situation may be 8 such that he cannot afford frequent visits to physicians or that he may be more inclined to bear up under progressively worsening symptoms until they become unbearable. The Board should have considered the lay evidence indicating that such explanatory factors may have been operative in this case. See R. at 1281, 1291-92 (appellant's hearing testimony concerning years immediately after service). For the foregoing reasons, the Court holds that the Board's statement of reasons or bases is inadequate to support its ultimate conclusions with respect to the bilateral knee disorder. Therefore, the Court will set aside those findings and remand the matter for further proceedings. C. The Back Condition 1. The VA Examination Reports The February 2010 VA examination report noted an absence of postservice documentation of lower back pain until the 1990s following the knee replacement surgeries. The examiner concluded that the lumbosacral spine condition was less likely than not related to military service. The examiner's rationale was that "there is a onetime injury to the left low back in July of 1956 but no other complaints throughout the military service showing no chronicity of symptoms." R. at 79. Again, this statement is not a medical explanation but a mere reiteration of the state of the document record. A September 2006 report from a VA spinal examination was inconclusive. The examiner's statement reads as follows: The veteran was seen twice for the back pain [in service] and had a normal x-ray at that time and had no problems until about 40 years after leaving service. So I cannot really give an opinion without resorting to speculation as to whether the veteran's current back problems are related to his service. R. at 1426; see also R. at 1420 (indicating that the appellant was seen on July 26, 1956, and again on July 30 for back complaints). The Board referred to "[a] VA spine examination report, dated in August 2006." R. at 8. This reference may have been an inadvertence, stemming from the fact that the same examiner conducted the August 2006 joints examination that was discussed previously. The Board went on to erroneouslystate, however, that "the Veteran was onlyshown to have had one treatment for back symptoms in one month during service." Id. (emphasis added). In weighing the evidence pertaining to the back condition, the Board did not rely on the 2006 report. 9 2. The Board's Analysis The Board began its discussion of the lumbosacral spine disorder with the assertion that "the Veteran was treated for back symptoms in July 1956, with no subsequent treatment during his remaining service, a period of about 11 months." R. at 11. As discussed previously, this premise depends on the doubtful proposition that the SMRs are complete in the record, a finding that the Board did not make. The Board further noted that "a lumbosacral spine disorder was not noted upon separation from service." Id. The Board should have explained the significance it attached to this fact, in view of the fact that postservice diagnosis of the back condition was made with the aid of an MRI, a technology not available in 1957. Moreover, as the appellant points out, the separation examination report also does not mention the ankle condition, which is reflected elsewhere in the SMRs and for which service connection was later awarded. Thus, neither the Board nor the record itself supports an exception to the rule that the absence of evidence is not substantive negative evidence. See Buczynzki v. Shinseki, 24 Vet.App. 221 (2011). Furthermore, the Board made no attempt to reconcile the divergent evidence regarding the number of complaints in the SMRs for a back condition. The February 2010 VA examiner stated that "there is a onetime injuryto the left low back in Julyof 1956 but no other complaints throughout the military service showing no chronicity of symptoms." R. at 79. As the September 2006 report notes, however, the appellant was seen twice for back complaints in the same month. It is unclear whether the February 2010 examiner believed that there was only one complaint of back symptoms or whether she was attributing the two visits to the same injury. The Board should have sought clarification. See Savage v. Shinseki, 24 Vet.App. 259 (2010). Moreover, there is a private medical examination report that identifies three visits to physiotherapy in the SMRs after the documented July 1956 injury. See R. at 1494. The Board should have reconciled this evidence, because the February 2010 VA examiner's analysis depended in part on a lack of chronicity during service. There is also no analysis in the VA medical examination reports pertaining to the possible effect of multiple parachute jumps before and after the documented July1956 injury. See McLendon v. Nicholson, 20 Vet.App. 79, 83 (2006) (if a veteran's military records indicate he served as a paratrooper,makingmultiplejumps duringservice, andtheveterannowhasevidenceofarthritis that 10 he indicates was due to those jumps, VA must obtain a medical opinion as to a possible link). The February 2010 VA examination report is inadequate because it failed to consider this matter. Finally, the Board's discussion of the lay evidence is similarly inadequate to support its analysis. In particular, the Board made no mention of the younger son's observation that he noticed the appellant's back "was kinda hunched over." R. at 1232. For the foregoing reasons, the Court holds that the Board's statement of reasons or bases is inadequate to supportits ultimate conclusionswith respectto thebackdisorder. Therefore, the Court will set aside those findings and remand the matter for further proceedings. C. Ankle Injury The principal dispute as to the appropriate disabilityrating for the ankle injuryis whether the appellant's right ankle has ankylosis. See 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2011) (ankle, ankylosis of). The appellant contends that he is entitled to a higher rating under this diagnostic code for the ankylosis of his right ankle. The Board acknowledged that ankylosis includes immobility due to a surgical procedure. See R. at 16 (citing Shipwash v. Brown, 8 Vet.App. 218, 221 (1995)). The Board further acknowledged that the appellant "underwent a right ankle arthrodesis." R. at 16. An "arthrodesis" is "the surgical fixation of a joint by a procedure designed to accomplish fusion of the joint surfaces by promoting the proliferation of bone cells; called also artificial ankylosis." DORLAND'SILLUSTRATEDMEDICALDICTIONARY157 (32d ed. 2012). Yet, the February 2010 VA examination report indicates that "there is no evidence of ankylosis." R. at 79. Neither the examination report nor the Board offers anyexplanation how this observation can be true despite the acknowledged surgical procedure. Thus, the Court must remand this issue for a fuller explanation. The Court must remand the matter of the ankle disability for the additional reason that the evidence seems to indicate that there may be an additional claim for a secondary ankle condition. See Schafrath, supra; Robinson v. Peake, 21 Vet.App. 545, 552 (2008) ( Board is required to consider all issues raised either by the claimant or by the evidence of record), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). In a letter dated April 13, 2009, Dr. Paul Kammerlocher indicated that the appellant has "severe ankle pain in his subtalar joint, which has 11 gone on to secondary post-traumatic arthrosis as a result of his ankle fusion, which by his history is a direct result of injury he sustained in the Army in 1956." R. at 1238. The Board must evaluate whether this evidence raises a claim for secondary service connection for the condition described by this physician. See Clemons v. Shinseki, 23 Vet.App. 1 (2009). For the foregoing reasons, the Court holds that the Board's statement of reasons or bases is inadequate to support its ultimate conclusions with respect to the disability rating for the right ankle. Therefore, the Court will set aside those findings and remand the matter for further proceedings. II. CONCLUSION On consideration of the foregoing, the Court SETS ASIDE the Board's September 8, 2010, decision, and REMANDS this case for further proceedings consistent with this decision and readjudication. On remand, the appellant will be free to submit additional evidence and argument as to his claims and the Board is required to consider any such evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). A final Board decision following the remand herein ordered will constitute a new decision that, if adverse, may be appealed to this Court upon the filing of a new Notice of Appeal with the Court not later than 120 days after the date on which notice of the Board's new final decision is mailed to the appellant. Marsh v. West, 11 Vet.App. 468, 472 (1998). DATED: April 30, 2012 Copies to: Sandra E. Booth, Esq. VA General Counsel (027) 12