Citation Nr: 19152152 Decision Date: 07/05/19 Archive Date: 07/05/19 DOCKET NO. 08-13 090A DATE: July 5, 2019 ORDER Entitlement to an increased disability rating for right posterior thigh dysesthesia, currently rated as 10 percent disabling, is DENIED. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is DENIED. FINDINGS OF FACT 1. The Veteran’s service-connected right posterior thigh dysesthesia is assigned a 10 percent rating, which is the maximum schedular rating authorized under Diagnostic Code 8729. 2. The Veteran’s disability picture for his service-connected right posterior thigh dysesthesia is contemplated by the Rating Schedule, such that the assigned schedular evaluation for his service-connected disability is adequate. 3. The Veteran’s service-connected disabilities do not preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria have not been met for an increased rating, greater than 10 percent, for right posterior thigh dysesthesia on a schedular basis. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102 , 3.159, 4.1-4.7, 4.21, 4.87, Diagnostic Code 8729 (2017). 2. The criteria have not been met for an increased rating, greater than 10 percent, for right posterior thigh dysesthesia on an extraschedular basis. 38 U.S.C.A. §§ 1155 , 5107 (West 2014); 38 C.F.R. § 3.321 (b) (2017). 3. The criteria are not met for entitlement to a TDIU rating. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16(a), 4.19, 4.25 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from October 1961 to October 1982. The Board has thoroughly reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claims. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). INCREASED RATINGS, GENERALLY Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). The Veteran is uniquely suited to describe the severity, frequency, and the duration of the symptoms that accompany his service-connected right posterior thigh dysesthesia. See Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). The Veteran filed an increased rating claim for all of his service-connected disabilities on appeal on September 14, 2006. As noted above, the Veteran’s entire history is reviewed when assigning a disability evaluation. 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.” Hart, 21 Vet. App. at 509. Therefore, in the present case, the Board will place a specific focus on evidence of record back to September 14, 2005. 1. Entitlement to an increased disability rating for right posterior thigh dysesthesia, currently rated as 10 percent disabling, is denied. In September 2006, the Veteran submitted a VA Form 21-4138. Therein, the Veteran initiated his entitlement claim for an increased rating for service-connected right posterior thigh dysesthesia. Under Diagnostic Code 8729, neuralgia of the external cutaneous nerve of the thigh warrants a rating of 10 percent if severe to complete paralysis, and a rating of 0 percent if mild or moderate paralysis. 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8729. The Board notes that the medical definitions of paresthesia and dysesthesia reflect an abnormal touch sensation, either with or without an external stimulus. See Dorland’s Illustrated Medical Dictionary 1404 & 584 (31st ed. 2007). In December 2006, the Veteran underwent a VA examination that considered the current severity of his of his service-connected right posterior thigh dysesthesia. At that time, the VA provider noted diagnoses for neuropathy of right lateral thigh external cutaneous nerve and right medial thigh neuralgia of unknown etiology. The VA provider noted that, “(c)urrently the patient has constant numbness (5/10) with flare-ups once a day (8/10) lasting approximately 60-90 minutes. Patient is on no medication in reference to this problem . . .. During flare-ups, the patient states his numbness does interfere with daily activities. The patient has been retired for three years. The patient has a limp and walks with a cane.” The VA provider observed “motor and sensory exam was within normal limits except for moderate numbness of the lateral aspect of the patients’ right thigh. Patient has moderate tenderness of his right medial thigh area.” In August 2007, the Veteran submitted his notice of disagreement (NOD). Therein, the Veteran posited that, “(m)y right leg is painful 100% of the time, although my thigh numbness is not troublesome. And since my thigh is numb, there is no way I can feel pain in that area. I also have to use a cane most of the time to steady myself as a result of it.” The Veteran concluded his NOD with, “(t)his condition has prevented me from securing employment that requires standing for long periods of time. Stairs are also a painful process.” In May 2008, the VA received a statement from the Veteran. Therein, the Veteran posited that, “my condition DOES keep me in pain all day and DOES limit my ability to walk normally, and that I DO have a Disabled Persons placard, was not taken into consideration.” The Veteran also stated that, “(m)y right thigh to my right knee is in constant pain and I cannot get into a vehicle without supporting myself due to the pain in my right leg. I am currently on strong narcotics that appear to be working somewhat, but not 100%. I cannot sit for longer than an hour at a time and I cannot walk for more than a block without having to stop and take a break.” Ultimately, the Veteran posited that his service-connected right posterior thigh dysesthesia warranted a 40 percent disability rating. In October 2011, the Board addressed both claims listed on the title page. At that time, the Board found that, “although he has only said that he cannot do work that requires being on his feet for lengthy periods of time, the fact that he has said that he had to quit his last job due to the narcotic medication he takes for his disability . . . the Board construes this statement as raising the issue of TDIU.” In April 2014, the Veteran underwent a VA examination that considered the current severity of his of his service-connected right posterior thigh dysesthesia. The VA provider noted diagnoses for meralgia paresthetica and lumbosacral radiculopathy. The Veteran demonstrated moderate constant pain, numbness, and paresthesias and/or dysesthesias. The Veteran also demonstrated an abnormal gait due to shortened stride length. The VA provider noted moderate, incomplete paralysis of the right thigh cutaneous nerve. The Veteran reported constant use of a cane for mobilization. The VA provider indicated the following functional impact: “walking is limited to 10 stairs or less than 3 blocks, with standing limited to 15 minutes.” In June 2014, the Veteran underwent a VA examination that considered the nature and etiology of a lumbar disability. Relevant to this Board analysis, the VA provider noted mild paresthesias and/or dysesthesia of the right lower extremity, which was accompanied by moderate numbness and constant pain. In October 2015, the Veteran underwent a VA examination that considered the current severity of his service-connected right posterior thigh dysesthesia. At that time, the VA provider noted diagnoses for meralgia paresthetica and bilateral lumbar radiculopathy. The Veteran stated that his service-connected disability had remained the same since the April 2014 VA examination. The Veteran’s demonstrated symptoms were moderate constant pain, numbness, paresthesias and/or dysesthesias. The Veteran’s disability resulted in an abnormal gait, due to shortened strides. The VA provider identified moderate, incomplete paralysis of the right thigh cutaneous nerve. The Veteran demonstrated objective pain with pressure on inner aspect of his right thigh. In April 2016, the Board remanded the Veteran’s entitlement claim for an increased disability rating for right posterior thigh dysesthesia for extraschedular consideration by the Director of the Compensation Service. At that time, the undersigned Veterans Law Judge concluded that, “the disability rating to be assigned for the Veteran’s posterior right thigh dysesthesia remains in dispute. The disability rating ultimately assigned for that disability may effect the Veteran’s combined disability rating, and hence, his eligibility for TDIU.” In December 2018, the Director of Compensation Services provided a determination, which was associated with the Veteran’s claims file. Therein, the Director concluded, that, “(i)t is not recommended that entitlement to an extraschedular increased evaluation, above 10 percent, be granted since the veteran’s service connected right posterior thigh dysesthesia does not present manifestations ‘so exceptional or unusual due to such related factors as marked interference with employment or frequent periods of hospitalization’ as defined by 38 CFR 3.321(b)1.” The Board notes that the Director’s decision is not evidence; but, rather, a de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). The Court has reaffirmed that the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating, confirming that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). During the course of the relevant claim period, the Veteran’s government and non-government medical evaluations, notations, and/or reports have been associated with the claims file on numerous occasions. The Board has deliberately reviewed the Veteran’s entire medical record during the claim period, to include notations supplied by the VA Medical Clinic (VAMC) in Kansas City Leavenworth VAMC, Saint Luke’s Health System, Olathe Health System, and Neurosurgery Associates of Kansas. After prolonged review, the Board concludes that the evidence of record does not support the Veteran’s right posterior thigh dysesthesia led to frequent periods of hospitalization. In August 2016, a VA Form 21-4192 was associated with the Veteran’s claims file. Therein, the US Postal Service (USPS) indicated that the Veteran retired as a mail handler in February 2004. The Veteran’s former employer and/or supervisor did not identify any concessions made to the Veteran because of a service-connected disability. In June 2016, the Veteran submitted a statement along with his entitlement claim for a TDIU. Therein, the Veteran posited that, “(I) had to retire from USPS as a mail handler due to medication conflict with duties . . .. I have looked for employment that I might be able to perform but the following are detractors: on oxycodone daily which precludes any occupation that requires operation of a motor vehicle or cargo moving equipment such as pallet jacks or fork lifts. Applied to be a school bus driver but failed the medical portion due to oxycodone use . . ..” Ultimately, the Board concludes that the maximum 10 percent schedular rating adequately contemplates the Veteran’s disability picture. The Veteran’s symptoms include pain, an inability to walk more than 1 to 3 blocks, an inability to sit for up to an hour or stand more than 15 minutes, and an abnormal gait due to shortened stride necessitating the use of a cane. The 10 percent disability evaluation assigned contemplates severe to complete paralysis of the external cutaneous nerve of the thigh. In this regard, neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbance, and constant pain, at times excruciating, is to be rated on the scale provided for the injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See 38 C.F.R. 4.123. The Board finds that severe to complete paralysis of the external cutaneous nerve of the right thigh reasonably describes the Veteran’s disability level and symptomatology. The Board has considered whether the Veteran’s right posterior thigh dysesthesia warrants an extraschedular evaluation but finds that the 10 percent disability evaluation assigned for severe to complete paralysis reflects the overall disability picture demonstrate by the Veteran during the relevant period, September 14, 2005 to present. As stated, regulations for evaluating neurological conditions state that neurological disabilities are rated in proportion to the impairment of motor, sensory, or mental function. See 38 C.F.R. 4.120. Neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbance, and constant pain, at times excruciating, is to be rated on the scale provided for the injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See 38 C.F.R. 4.123. The evidence indicates that the Veteran suffered from severe pain, paresthesia, and numbness, affecting his right thigh, but displayed normal muscle strength, deep tendon reflexes, and sensory testing results on examination in April 2014 and October 2015. Under 38 C.F.R. 4.123, sensory disturbance and constant pain, at times excruciating, as reported by the Veteran, are explicitly contemplated. The evidence of record indicates that he did not suffer from loss of reflexes or muscle atrophy as described in 38 C.F.R. 4.123. Given the evidence of record, assignment of an extraschedular consideration is not warranted. 2. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. In June 2016, the Veteran submitted a VA Form 21-8940. Therein, the Veteran formalized his entitlement claim for a TDIU. The Veteran reported that he worked for the USPS from February 1987 to February 2004. The Veteran reported that he left the USPS because of his service-connected disability. The Veteran reported that he tried to obtain employment as a school bus driver in September 2004. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2014). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340 (a)(1). Total disability may or may not be permanent. Id. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340 (a)(2). A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a total rating must be based solely on the impact of the Veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran's service connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the Veteran’s level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. If a Veteran fails to meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16 (a), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, the Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341 (a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16 (a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. After review, the Board notes that the Veteran currently maintains three service-connected disabilities, to include coronary artery disease (CAD), right posterior thigh dysesthesia, and left inguinal herniorrhaphy. The Veteran maintains a combined disability evaluation of 40 percent, and service-connected CAD represents the highest individual rating at 30 percent. In December 2006, the Veteran underwent a VA examination that considered the current severity of his of his service-connected right posterior thigh dysesthesia. The VA provider noted that, “(c)urrently the patient has constant numbness (5/10) with flare-ups once a day (8/10) lasting approximately 60-90 minutes. Patient is on no medication in reference to this problem . . .. During flare-ups, the patient states his numbness does interfere with daily activities. The patient has been retired for three years. The patient has a limp and walks with a cane.” In August 2007, the Veteran submitted his notice of disagreement (NOD). The Veteran concluded his NOD with, “(t)his condition has prevented me from securing employment that requires standing for long periods of time. Stairs are also a painful process.” In May 2008, the VA received a statement from the Veteran. Therein, the Veteran posited that, “I am currently on strong narcotics that appear to be working somewhat, but not 100%. I cannot sit for longer than an hour at a time and I cannot walk for more than a block without having to stop and take a break.” In April 2014, the Veteran underwent a VA examination that considered the current severity of his of his service-connected right posterior thigh dysesthesia. At that time, the VA provider opined that, “due to peripheral neuropathy causing an abnormal gait with limitations on climbing stairs, walking, and standing, this condition prevents function at a physically-active occupation. Otherwise, sedentary work is not affected.” In October 2015, the Veteran underwent a VA examination that considered the current severity of his service-connected right posterior thigh dysesthesia. At that time, the VA provider identified the following function impact: limited ability for prolonged standing, walking, sitting (1/2 hour), and no driving due to opioids. The VA provider opined that, “the Veteran would not be able to return to Post Office worker, but he would be able to perform desk-type work.” The VA provider supplied the following rationale: “his neurological condition causes an abnormal gait and would limit the above activities, which would not allow him to return to mail delivery person. His opioid use would also limit his ability to drive, but does not exclude him from sedentary work.” In June 2016, the Veteran submitted a statement along with his entitlement claim for a TDIU. Therein, the Veteran posited that, “had to retire from USPS as a mail handler due to medication conflict with duties . . .. I have looked for employment that I might be able to perform but the following are detractors: on oxycodone daily which precludes any occupation that requires operation of a motor vehicle or cargo moving equipment such as pallet jacks or fork lifts. Applied to be a school bus driver but failed the medical portion due to oxycodone use . . ..” In August 2016, a VA Form 21-4192 was associated with the Veteran’s claims file. Therein, the US Postal Service (USPS) indicated that the Veteran retired as a mail handler in February 2004. The Veteran’s former employer and/or supervisor did not identify any concessions made to the Veteran because of his service-connected disability. As noted earlier, the Veteran is currently maintaining an overall 40 percent disability picture; a 30 percent disability for coronary artery disease with hypertension representing the largest single service-connection rating. Service connection for a left inguinal herniorrhaphy, rated as noncompensable, has also been established. These disability ratings are not sufficient for schedular TDIU under the umbrella created by 38 C.F.R. § 4.16 (a). Additionally, remand of the Veteran’s claim for consideration of an extraschedular TDIU disability rating is not warranted by the evidence of record. The Board readily accepts the Veteran’s credible reports that he could not walk a sufficient distance to continue his career as a mail handler. The Board also notes that both the April 2015 and October 2015 VA examiners reported the Veteran’s right posterior thigh dysesthesia created an inability to complete tasks that required prolonged standing, walking, and sitting. The report of an October 2015 VA heart conditions examination indicates that the Veteran would be able to work a job that required lifting under 25 pounds, with the following restrictions: no lifting over 25 pounds, no pushing or pulling over 25 pounds (limited to twice a day), no climbing, and an ability to change positions as needed. The medical evidence of record indicates that the Veteran, while not able to work in a position requiring driving, is able to work in a desk related job. After review of all the evidence, to include the Veteran’s statements, government and non-government treatment reports, and the VA medical opinions, they all indicate that the Veteran is not precluded from securing or following a substantially gainful occupation as a result of his service connected disabilities. The record reflects that the Veteran is a high school graduate with additional education or training as a forklift operator and with miscellaneous power equipment. His most recent VA neurological examination includes that he would be able to work a normal 8-hour work day that allowed him to use his cane to ambulate and stand and provided an ergonomically correct work area. While kneeling, squatting, and pushing/pulling were prohibited, he would be able to life 25 pounds or less up to 4 times a day with standing and walking limited to 4 times a day. He would be limited to sitting 10 times pers day with a duration of 30 minutes each time. While the Veteran would not be able to return to postal work, he would be able to perform desk type work. The Veteran’s service-connected right posterior thigh dysesthesia is not shown to preclude him from obtaining and maintaining substantially gainful employment. Accordingly, his claim of entitlement to TDIU must be denied on the basis of the evidence of record. See 38 C.F.R. §§ 3.102, 4.16. In reaching this conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b); Ortiz v. Principi,   274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD RLBJ, Associate 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.