Citation Nr: 19147698 Decision Date: 06/18/19 Archive Date: 06/18/19 DOCKET NO. 09-15 207 DATE: June 18, 2019 ORDER Entitlement to an initial compensable rating for bilateral ocular histoplasmosis and macular degeneration (“bilateral eye disability”) is denied. Entitlement to an initial compensable rating for scar at the bottom of the left foot, status post-bunionectomy, is denied. Entitlement to an initial compensable rating for scar at the dorsal aspect of the left foot at the first metatarsophalangeal (MTP) joint, status post-bunionectomy, is denied. Entitlement to an initial compensable rating for scar on the right foot, status post-osteotomy, is denied. Entitlement to an initial compensable rating for scar on right elbow, status post-right ulnar nerve transposition surgery, is denied. REMANDED Entitlement to an increased rating for arthritic/degenerative facet changes and degenerative disc disease at L2-3, L3-4, and L4-5 of the thoracolumbar spine (“back disability”), rated initially as 10 percent disabling and as 20 percent disabling from June 29, 2011, is remanded. Entitlement to a total disability rating based on individual unemployability by reason of service-connected disabilities (TDIU) for the period prior to June 29, 2011, is remanded. FINDINGS OF FACT 1. For the entire period of appeal, the Veteran’s bilateral eye disability does not result in irregular, duplicated, enlarged, or diminished image; and there is no visual acuity impairment, visual field impairment, or incapacitating episodes. 2. For the entire period of appeal, the four scars on appeal, including the left foot bottom, left foot near the first MTP joint, right foot, and right elbow, are linear and stable, and they do not result in pain, limited motion, or other functional impairment. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for the bilateral eye disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.79, Diagnostic Code 6099-6011 (2018), Diagnostic Code 6011 (prior to December 10, 2008). 2. The criteria for an initial compensable rating for scar at the bottom of the left foot, status post-bunionectomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7805 (2018), Diagnostic Code 7805 (prior to August 13, 2018), Diagnostic Code 7805 (prior to October 23, 2008). 3. The criteria for an initial compensable rating for scar at the dorsal aspect of the left foot at the first MTP joint, status post-bunionectomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7805 (2018), Diagnostic Code 7805 (prior to August 13, 2018), Diagnostic Code 7805 (prior to October 23, 2008). 4. The criteria for an initial compensable rating for scar on the right foot, status post-osteotomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7805 (2018), Diagnostic Code 7805 (prior to August 13, 2018), Diagnostic Code 7805 (prior to October 23, 2008). 5. The criteria for an initial compensable rating for scar on the right elbow, status post-right ulnar nerve transposition surgery, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7805 (2018), Diagnostic Code 7805 (prior to August 13, 2018), Diagnostic Code 7805 (prior to October 23, 2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army for over 21 years, from June 1987 to March 2008, including service in Bosnia. He also had a period of active duty for training (ACDUTRA) from May to October 1986. The Board remanded the case in May 2013 for further development, including scheduling the Veteran for VA examinations to determine the severity of his service-connected disabilities. Outstanding treatment records were also to be obtained. The Veteran subsequently had VA eye and scar examinations in February 2019, and VA and private treatment records have been associated with the claims file. The Board therefore finds there has been substantial compliance with the remand directives with regard to the claims for increased ratings for the bilateral eye disability and the scars. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. 1. Increased rating for the bilateral eye disability. The Veteran’s bilateral eye disability has been assigned an initial noncompensable (zero percent) rating effective April 1, 2008, under Diagnostic Code 6099-6011. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the assigned rating; the additional code is shown after the hyphen. The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and 99. Here, the hyphenated diagnostic code indicates that the bilateral eye disability is rated as analogous to a disease of the eye (Diagnostic Code 6099) under the criteria for retinal scars, atrophy, or irregularities (Diagnostic Code 6011). 38 C.F.R. § 4.79. The rating criteria for evaluating diseases of the eye were amended twice during the pendency of this appeal. See 73 Fed. Reg. 66544 (November 10, 2008); 89 Fed. Reg. 15316 (Apr. 10, 2018). Prior to December 10, 2008, a sole 10 percent rating was provided for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that were centrally located and resulted in an irregular, duplicated, enlarged, or diminished image. Effective December 10, 2008, a 10 percent rating was warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that were centrally located and result in an irregular, duplicated, enlarged, or diminished image. Alternately, the retinal scars, atrophy, or irregularities could be evaluated based on visual impairment due to retinal scars, atrophy, or irregularities, if it would result in a higher evaluation. These amendments apply to claims received by VA on or after the December 10, 2008 effective date. As the Veteran’s claim for entitlement to service connection for a bilateral eye disability was received in January 2008, the Board will apply the old version of the rating criteria for the period prior to December 10, 2008. However, as of December 10, 2008, the Board will evaluate the bilateral eye disability under both versions and apply the rating criteria more favorable to the Veteran. See VAOPGCPREC 7-2003 (Nov. 19, 2003). Effective May 13, 2018, the rating criteria were changed again. A 10 percent rating is still warranted for localized scars, atrophy, or irregularities of the retina, unilateral or bilateral, that are central located and result in an irregular, duplicated, enlarged, or diminished image. Alternatively, they may be evaluated based on the General Rating Formula for Diseases of the Eye, if this would result in a higher evaluation. The General Rating Formula provides a 10 percent disability rating for documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months. A 20 percent rating is warranted for documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months. A 40 percent rating is warranted for documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months. A 60 percent rating is warranted for documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months. For VA purposes, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Schedule for Rating Disabilities: The Organs of Special sense and Schedule of Ratings – Eye, 83 Fed. Reg. 15,316 (Apr. 10, 2018). In a February 2008 VA eye examination, the Veteran reported that he was not receiving any eye treatment, had never been hospitalized due to the any eye condition, and had never had any incapacitating episodes due to any eye condition. He denied symptoms of distorted vision, enlarged images, pain, redness, swelling, discharge, blurred vision, and watering. On examination, corrected distance vision was noted to be 20/20 in the right eye. No distance vision acuity was noted for the left eye. A Goldman Visual Field test showed bilateral visual field contractions. The right eye showed: temporally 75 degrees, down temporally 66 degrees, down 52 degrees, down nasally 47 degrees, nasally 44 degrees, up nasally 36 degrees, up 33 degrees, and up temporally 64 degrees. Total field of vision was 417 degrees, with an average contraction of 52 degrees. The left eye showed: temporally 76 degrees, down temporally 63 degrees, down 54 degrees, down nasally 50 degrees, nasally 42 degrees, up nasally 42 degrees, up 39 degrees, and up temporally 61 degrees. Total field of vision was 427 degrees, with an average contraction of 53 degrees. The examiner indicated that the Veteran had diagnoses of small chorioretinal scars, with objective factors of peripapillary atrophy and peripheral “histo” spots; Fuchs cornea dystrophy bilaterally, with objective factors of corneal guttata; and macular degenerative changes, with objective factors of macular pigmentary changes bilaterally. In August 2011, the Veteran transferred his care from a private physician, Dr. J.W., to VA. In his initial appointment to establish care, he was noted to be prescribed artificial tears for dry eyes. In an eye consultation, his corrected visual acuity was noted to be 20/20 in the right eye and 20/20-1 in the left eye. In May 2012, the Veteran reported having longstanding floaters and felt his vision was “foggy,” which was worse in the morning. His corrected visual acuity was 20/20 bilaterally and confrontation fields were full to finger counting bilaterally. He was noted to have Fuchs dystrophy bilaterally, for which he was prescribed Muro eye drops; diabetes without retinopathy; and macular degeneration. In December 2012, the Veteran reported that his vision was blurry in the morning, got better around 10:00 am, and then decreased 4:00 pm. His glasses prescription was changed and his visual acuity was 20/20 bilaterally. Confrontation fields were full to finger counting. In October 2016, the Veteran reported that his glasses were over two years old, and that his eyes burned occasionally. His corrected visual acuity was 20/20 in the right eye and 20/20-2 in the left eye. He was noted to have diabetes without retinopathy, cataracts that were not visually significant, and Fuchs endothelial dystrophy. In July 2017, the Veteran reported that in the last two months he noticed more floaters that were like “squiggly lines.” His visual acuity was 20/20 bilaterally and he was instructed to schedule a follow-up appointment in two months for the floaters. In the September 2017 follow-up appointment, he was noted ot have vitreous degeneration without holes, breaks, or tears. In September 2018, the Veteran was again noted to have diabetes without retinopathy; Fuchs endothelial dystrophy, for which he used Muro eye drops as needed; and cataracts that were not visually significant. In January 2019, the Veteran indicated that he had no vision changes. His corrected visual acuity was 20/20 bilaterally. The Veteran had another VA eye examination in February 2019. The examiner indicated that the Veteran had past diagnoses including Fuchs corneal dystrophy, for which he used eye drops but it had no effect upon vision; ocular histoplasmosis, which had no effect upon vision; and a history of non-proliferative retinopathy; however, there were no abnormal ocular conditions found in the examination, as there was no clinical evidence of ocular histoplasmosis, diabetic retinopathy, or Fuchs dystrophy. The Veteran’s corrected near and distance vision was 20/20 bilaterally. His pupils were equal in diameter, round, reactive to light, and there was no afferent pupillary defect present. The Veteran did not have any anatomical loss, light perception only, extremely poor vision, or blindness of either eye. He also did not have a corneal irregularity that resulted in severe irregular astigmatism or diplopia (double vision). Visual field testing showed no contraction or loss of visual field in either eye. The Veteran had not had any incapacitating episodes in the past 12 months due to any eye condition. In sum, the Board finds that a compensable rating is not warranted at any point during the period of appeal. First, the Veteran has never been shown to have symptoms of seeing irregular, duplicated, enlarged, or diminished images to warrant a 10 percent rating under any of the three versions of Diagnostic Code 6011 that have been in force throughout the period of appeal. VA examiners in February 2008 and February 2019 did not make any findings of irregular, duplicated, enlarged, or diminished images, and VA treatment records dated between August 2011 and March 2019 are silent for such findings. Next, are also no findings of impaired visual acuity, impaired visual field, or incapacitating episodes during the period of appeal to warrant a compensable rating under any of the versions of Diagnostic Code 6011 that have been in force during the period of appeal. VA examiners in February 2008 and February 2019 found that the Veteran’s visual acuity was 20/20, and both indicated that the Veteran had not had any incapacitating episodes due to any eye condition. The Board acknowledges that the February 2008 visual field testing showed slight impairments of visual field; however, the impairment was not attributed to any service-connected eye condition and it is outweighed by the 10 years’ worth of subsequent evidence that does not show any impairment in visual field. The Board has considered whether a higher rating or any additional ratings are warranted under an alternative diagnostic code, but as discussed above, finds that there is no indication that the Veteran had any compensable symptoms or diagnoses to warrant any higher or additional ratings. As such, a compensable rating for the bilateral eye disability is not warranted for any period of the appeal. Because the preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). 2. – 5. Increased ratings for the scars on the bottom of his left foot, the first MTP joint of his left foot, right foot, and right elbow. The Veteran has four claims for increased ratings for scars on the bottom of his left foot, the first MTP joint of his left foot, right foot, and right elbow, all of which have been assigned initial noncompensable ratings effective April 1, 2008. For the period of appeal prior to October 23, 2008, scars rated under Diagnostic Code 7805 were rated based on limitation of motion. Effective October 23, 2008, the criteria for rating scars were revised. See 73 Fed. Reg. 54708 (Sept. 23, 2008) (codified at 38 C.F.R. pt. 4). However, the October 2008 amendments only apply to claims filed on or after October 23, 2008, although a claimant may also specifically request consideration under the amended criteria. 38 C.F.R. § 4.118 (after October 2008). In the present case, the Veteran’s initial service connection claim was filed in January 2008, prior to the October 2008 effective date for these amendments. Therefore, the October 2008 skin criteria do not apply to the Veteran’s scars on appeal. Effective August 13, 2018, the criteria for rating scars were again revised. See 83 Fed. Reg. 32592 (July 13, 2018); 83 Fed. Reg. 38663 (Aug. 7, 2018). The Secretary of VA has determined that “claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” 83 Fed. Reg. at 32593. In other words, the August 13, 2018, amended skin rating criteria can be applied retroactively, if more favorable to the Veteran. See generally VAOPGCPREC 3-2000, 7-2003. However, there were no changes to Diagnostic Code 7805 under the August 13, 2018, amended version of the skin criteria. As such, under the version of Diagnostic Code 7805 in force since October 23, 2008, scars other than of the head, face, or neck, are rated based on disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. In a February 2008 VA examination, the Veteran’s right elbow scar was measured as 8 centimeters (cm) by 0.1-0.9 cm with inflammation and abnormal texture of less than six square inches. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, hyperpigmentation, or edema. Ranges of motion for flexion were normal, including flexion to 145 degrees, degrees of extension, supination to 85 degrees, and pronation to 80 degrees. The right foot scar measured 3.8 cm by 0.2 cm with inflammation. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, hyperpigmentation, abnormal texture, or edema. The left foot scar at the dorsal aspect of the first MTP joint from bunion surgery measured 4.5 cm by 0.2 cm with hypopigmentation of less than six square inches. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hyperpigmentation, abnormal texture, inflammation, or edema. The scar at the bottom of the left foot was 3.5 cm by 0.1 cm. There was no tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, hyperpigmentation, abnormal texture, inflammation, or edema. An August 2011 VA treatment record for an appointment to establish care is silent for mention of any scars. The Veteran did not report having pain or any other problems with the scars on his right elbow or feet. Subsequent VA treatment records dated through March 2019 are silent for complaints or treatment for the right elbow or feet scars. In a July 2016 VA scars examination, the Veteran was noted to have two scars on his left foot, one that was 4 cm by 0.5 cm, and one that was 2 cm by 0.5 cm. He also had a 3.5 cm by 0.5 cm scar on the right foot. The examiner indicated that none of the scars were painful or unstable, and they did not have a total area equal to or greater than 39 square cm. Most recently, in a February 2019 VA scars/disfigurement examination, the Veteran was noted to have a scar on his right elbow, bottom of left foot, left foot near the first MTP joint, and right foot. The examiner noted that the none of the scars were painful, unstable, due to burns, or with underlying tissue damage. The right elbow scar was 8 cm in length by 0.2 cm wide. The scar at the bottom of the left foot was 3.5 cm by 0.1 cm, and the scar near the first MTP joint on the left foot was 4.5 cm by 0.2 cm. The right foot scar was 3.8 cm by 0.1 cm. The examiner indicated that the Veteran did not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms. In sum, the Board finds that a compensable rating is not warranted at any point during the period of appeal for any of the four scars on appeal, including the left foot bottom scar, left foot near the first MTP joint scar, right foot scar, and right elbow scar. First, none of the four scars on appeal have been shown to cause any functional impairment, such as limitation of motion, at any point during the period of appeal. The February 2008 VA examiner noted that the right elbow’s range of motion was normal, and did not note any limitations of either foot caused by the scars. The February 2019 VA examination report indicates that other than the existence of the four scars, the Veteran did not have any other pertinent physical findings, complications, conditions, signs, and/or symptoms. Next, none of the scars have been shown to have any other disabling effects. In 10 years’ worth of VA treatment records and two VA examinations, the Veteran did not report having any pain or other impairment from the scars. Moreover, as noted in the February 2019 VA examination, the scars are linear and stable, and do not have underlying tissue damage. In evaluating the Diagnostic Codes potentially applicable to the Veteran’s scars, the Board notes that Diagnostic Code 7800 does not apply because the Veteran’s scars are not on his head, face, or neck. Diagnostic Code 7801 does not apply because the Veteran’s scars are neither deep nor nonlinear. Diagnostic Code 7802 does not apply because the Veteran’s scars are linear. Diagnostic Code 7804 does not apply because the Veteran’s scars are stable and not painful. As such, compensable ratings for the left foot bottom scar, left foot near the first MTP joint scar, right foot scar, and right elbow scar are not warranted for any period of the appeal. Because the preponderance of the evidence weighs against the claim, the benefit of the doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). REASONS FOR REMAND 1. Increased rating for the back disability is remanded. The Board remanded this issue in May 2013 to schedule the Veteran for a VA examination of the service-connected back disability. The Veteran was provided such an examination in February 2019. The Board finds, however, that the February 2019 VA examination report is not a sufficient basis on which to adjudicate the claim. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of 38 C.F.R. § 4.59. That final sentence of 38 C.F.R. § 4.59 directs that the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. In the February 2019 VA examination, the examiner performed active range of motion testing and noted that passive ranges of motion were not performed because it was not feasible to do this in a safe and reasonable manner.” The examiner also indicated that there was pain on weight-bearing, but that nonweight-bearing was not applicable because there was “no objective evidence of pain when the spine was in a nonweight-bearing position at rest.” The examiner failed to explain these conclusions or provide any reasoning indicating why it was not medically appropriate to perform the testing required by Correia. Moreover, prior to the February 2019 VA examination, and as relevant to the appeal, the Veteran was afforded a VA examination of the spine in February 2008. This examination was conducted prior to Correia, and thus did not include necessary findings. Although the Board sincerely regrets the delay, it is necessary to ensure that the VA examination complies with the requirements of the recent holding in Correia. The examiner should also determine whether it is possible to provide a retrospective medical opinion for the other VA examination conducted during the appeal period. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retroactive medical evaluation may be warranted). Therefore, on remand, the Veteran should be afforded another VA examination to ascertain the severity and manifestations of his back disability. 2. Entitlement to a TDIU prior to June 29, 2011, is remanded. In the May 2013 Board remand, the Board found that the issue of entitlement to a TDIU had been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In May 2015, during the pendency of the appeal, service connection for PTSD was granted, with a 100 percent rating assigned effective June 29, 2011. Special monthly compensation at the housebound rate was also granted effective June 29, 2011, on the bases of having a single disability rated at 100 percent and additional disabilities rated independently rated at 60 percent or more. As such, the issue of entitlement to a TDIU is moot for the period of appeal from June 29, 2011, as the maximum benefits available have been granted. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). With regard to the period of appeal prior to June 29, 2011, any decision on the increased rating claim being remanded herein may affect the claim for a TDIU. Consideration of entitlement to a TDIU prior to June 29, 2011, must therefore be deferred until the intertwined issue is resolved or prepared for appellate consideration. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Finally, the Board notes that the May 3013 remand directives included providing the Veteran with VCAA notice for entitlement to a TDIU and any related development (such as a VA Form 21-8940). A letter was subsequently sent to the Veteran in January 2019 and no response has been received. The Board finds that the Veteran should be provided with another opportunity to submit information relevant to a TDIU prior to June 29, 2011. The Veteran is reminded, however, that “[t]he duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence.” Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the severity and manifestations of his service-connected back disability. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is asked to review all relevant records and conduct a clinical evaluation. Based on this review, the examiner is asked to provide an assessment of the current nature of the Veteran’s low back. Ranges of motion (ROM) should be tested actively and passively, in weight-bearing and nonweight-bearing, and after repetitive use. The examiner should consider whether there is likely to be additional range of motion loss due to any of the following: (1) during flare-ups; and, (2) as a result of pain, weakness, fatigability, or incoordination. If so, the examiner is asked to describe the additional loss, in degrees, if possible. In addition, the VA examiner should comment on whether ROM measurements for active motion, passive motion, weight-bearing, and nonweight-bearing can be estimated for the relevant periods prior to February 2019. If the examiner is unable to provide a retrospective opinion as to these specific ROM findings, he or she should clearly explain so in the report. A thorough rationale should be provided for all opinions expressed. If any requested medical opinion cannot be given, the examiner should state the reason(s) why. 2. Send the Veteran a VCAA notice for entitlement to a TDIU for the period of appeal prior to June 29, 2011, and any related development (such as a VA Form 21-8940). H. SEESEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD N. Nelson, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.