Citation Nr: 19144427 Decision Date: 06/07/19 Archive Date: 06/07/19 DOCKET NO. 13-06 339A DATE: June 7, 2019 ISSUES 1. Entitlement to service connection for degenerative disk disease (DDD) / degenerative joint disease (DJD) of the lumbar spine (low back disability). 2. Entitlement to service connection for an acquired psychiatric disability, variously diagnosed as adjustment disorder with mixed emotional features, depression, and posttraumatic stress disorder (PTSD). 3. Entitlement to an initial disability rating in excess of 30 percent for ischemic heart disease (IHD) prior to February 12, 2018, and in excess of 60 percent thereafter. 4. Entitlement to a total disability rating based on individual unemployability (TDIU). 5. Entitlement to service connection for neuropathy, peripheral of the left lower extremity, claimed as secondary to diabetes mellitus (DM). 6. Entitlement to service connection for neuropathy, peripheral of the right lower extremity, claimed as secondary to DM. 7. Entitlement to an initial rating in excess of 10 percent for DM. 8. Entitlement to an effective date earlier than March 31, 2010, for the grant of service connection for DM. ORDER Entitlement to service connection for a low back disability is granted. Entitlement to service connection for an acquired psychiatric disability, variously diagnosed as adjustment disorder with mixed emotional features, depression, and PTSD is granted. Entitlement to a TDIU is granted. Entitlement to an initial disability rating in excess of 30 percent for IHD prior to February 12, 2018, and in excess of 60 percent thereafter is denied. REMANDED Entitlement to service connection for neuropathy, peripheral of the left lower extremity, claimed as secondary to DM, is remanded. Entitlement to service connection for neuropathy, peripheral of the right lower extremity, claimed as secondary to DM, is remanded. Entitlement to an initial rating in excess of 10 percent for DM is remanded. Entitlement to an effective date earlier than March 31, 2010, for the grant of service connection for DM is remanded. FINDINGS OF FACT 1. The evidence is at least in equipoise as to whether the Veteran’s low back disability is related to his active service. 2. The evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disability, variously diagnosed as adjustment disorder with mixed emotional features, depression, and PTSD is related to his active service. 3. Prior to February 12, 2018, IHD was manifested by a workload between 5 and 7 METs resulting in dyspnea and fatigue. 4. Since February 12, 2018, IHD has been manifested by a workload between 3 and 5 METs resulting in dyspnea and fatigue. 5. The Veteran’s service-connected disabilities preclude the physical and mental acts required for substantially gainful employment. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303(2017). 2. Resolving reasonable doubt in the Veteran’s favor, the criteria for service connection for an acquired psychiatric disability, variously diagnosed as adjustment disorder with mixed emotional features, depression, and PTSD have been met. 38 U.S.C. §§ 1110, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.303(2017). 3. Prior to February 12, 2018, the criteria for an initial rating in excess of 30 percent for IHD are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, Diagnostic Code 7005 (2017). 4. Since February 12, 2018, the criteria for an initial rating in excess of 60 percent for IHD are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, Diagnostic Code 7005 (2017). 5. The criteria for TDIU are met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1, 4.16, 4.18, 4.19 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1969 to March 1972. This case comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. Namely, in a February 2011 rating decision, service connection for IHD associated with herbicide exposure was granted with a 30 percent evaluation, effective March 31, 2010. In an April 2011 rating decision, service connection for DDD/DJD of the lumbar spine and service connection for adjustment disorder with mixed emotional features (claimed as PTSD), was denied. The Veteran provided testimony before the undersigned during a September 2016 travel Board hearing; a transcript of the hearing is associated with the record. When this case was most recently before the Board in September 2017, it was decided in part and remanded in part for additional evidentiary development. The Board finds that there has been substantial compliance with the remand directives, and the case has been properly returned to the Board for further appellate action. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Subsequently in an April 2019 rating decision, the disability rating for the IHD was increased to 60 percent effective February 12, 2018. This did not satisfy the Veteran’s appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). Service Connection Claims The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Given the favorable decision is a full grant of the issues addressed, further explaining how VA has fulfilled the duties to notify and assist is unnecessary. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Generally, service connection may be granted for disability or injury incurred in or aggravated by active military service. See 38 U.S.C. §§ 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2017). In order to establish service connection for the claimed disorder, there must be (1) competent evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) competent evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). When positive and negative evidence approximately balance regarding the merits of an issue material to determining the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107 (b). Low Back Disability VA treatment records show diagnoses of DDD/DJD. As such, Hickson element (1) is met. The Veteran contends that his low back disability is related to service. Service treatment records show complaints in October 1970 of low back pain since he lifted a truck wheel; additional complaints of back pain and muscle spasms are shown. As such, the Board finds that Hickson element (2) is met. As to Hickson element (3), on one side, the Veteran was afforded a VA examination in September 2010 in which the examiner opined that it was less likely as not that the current lower back disability was a result of treatment for a low back condition shown during active duty; service medical records/separation physical failed to documented recurrent/chronic lower back disability; DDD/DJD of lumbar spine was an expected natural process with aging. The Veteran was afforded a VA examination in February 2018 in which the examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. The examiner stated that the Veteran complained of back pain while in service after lifting a truck wheel, and there was no chronicity to his back injury. The examiner stated that review of the medical records since separation from military service until 2010 were silent for a chronic back condition/complaint with treatment plan and that the Veteran’s DDD/DJD was most likely due to age as it was normal with aging. An addendum VA opinion was received in April 2019 in which the examiner opined that there was no medical record documentation from 1972 until the 2000’s of chronic and recurring back pain and chronic treatments. The examiner opined that since chronic and recurrent back pain was not mentioned at the time of military separation, and there was no documentation of chronic and recurrent back pain over almost the next 40 years, it was thus difficult to connect the current back problem with the active duty back pain incident in October 1970; there was a lack of documented chronicity of a back condition. The Board finds that the September 2010, February 2018, and April 2019 VA examiners appeared to base their decisions on the lack of documented recurrent/chronic back disabilities in service. That is, the absence of in-service evidence of disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Moreover, it is symptoms, not treatment, which are the essence of any evidence of continuity of symptomatology. Savage v. Gober, 10 Vet App. 488, 496 (1997) (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991)). Conversely, a private treatment record in August 2013 opined that it was more likely than not that the incident in 1970 in Vietnam was what began the Veteran’s chronic low back pain; the Veteran had been living with it since then. Dr. G.L. submitted correspondence in January 2014, noting the Veteran’s in-service back complaints. Dr. G.L. opined that it was more likely than not that the Veteran’s back condition was caused/aggravated by the in-service event. However, Dr. G.L.’s explanation for this opinion is illegible. The Veteran submitted a private examination in January 2018 in which Dr. N.S. opined that the low back condition was more likely than not caused/aggravated by the October 1970 in-service incident involving lifting a truck wheel. The examiner noted that the Veteran stated that his pain never stopped since the service accident; this pain was documented in the service records. The examiner stated that from 1970 until 2010 the Veteran had no other documentation of the pain being relieved or aggravated. Based upon the foregoing supportive evidence and resolving reasonable doubt in favor of the Veteran, and finding the VA opinions, on one side, and the private examiners’ opinions, on the other side, in equipoise as to nexus, the Board finds that the Veteran’s low back disability is related to active service and service connection is warranted. Acquired Psychiatric Disability The Veteran contends, and testified before the undersigned, that service connection is warranted for his acquired psychiatric disabilities as they are related to service. Specifically, the Veteran noted that an in-service complaint of headache, diarrhea and nausea in December 1970 was a result of stress. He also described in-service stressors to include witnessing a rocket explosion that killed his commander, firing on the enemy during guard duty, and seeing dead enemy soldiers on the side of the road while serving in Vietnam. The Veteran’s DD Form 214 shows that he served in-country in Vietnam from February 1970 through December 1970 and was a light vehicle driver. The Board notes that in the April 2011 rating decision, the RO stated that based on the Veteran’s service in Vietnam, and reported fear of hostile or enemy action, it was conceded that he participated in a stressful event. In light of the foregoing, and given the lack of any clear and convincing evidence to contrary, the Board finds that the Veteran’s statements regarding what he experienced and in Vietnam, and the resulting fear it caused him, to be credible. Service connection for PTSD requires: medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125 (a) (conforming to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV or DSM V)); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304 (f). In addition, 38 C.F.R. § 3.304 (f)(3) provides that if a claimed PTSD stressor is related to a veteran’s “fear of hostile military or terrorist activity” and a VA or VA-contracted psychiatrist or psychologist confirms that the claimed stressor is adequate to support a diagnosis of PTSD, the Veteran’s lay testimony alone may establish the occurrence of the claimed in-service stressor so long as there is not clear and convincing evidence to the contrary, and provided that the claimed stressor is consistent with the circumstances, conditions, or hardships of the Veteran’s service. “‘Fear and hostile military or terrorist activity’ means that a veteran experienced, witnessed or was confronted with an event or circumstance that involved actual or threatened death or serious injury, or a threat to the physical integrity of the Veteran or others, such as from... incoming artillery, rocket, or mortar fire,... and the veteran’s response to the event or circumstance involved a psychological or psycho-physiological state of fear, helplessness, or horror.” 38 C.F.R. § 3.304 (f)(3). The Veteran was afforded a VA examination in February 2011 in which adjustment disorder with mixed emotional features was diagnosed. The examiner opined that the condition/disability of PTSD was less likely as not caused by or a result of fear of hostile military or terrorist activity. The examiner stated that the Veteran did not describe the full spectrum of symptomatology to meet the criterion for the DSM-IV diagnosis of PTSD. However, this opinion was rendered without review of the claims file. In July 2013 Dr. H. submitted correspondence that noted treatment for PTSD and depression. Dr. H. indicated that these diagnoses were directly caused by the Veteran’s reported in-service stressors in Vietnam. In a private examination in January 2018 by Dr. R.Y., the Veteran was diagnosed with adjustment disorder with mixed emotional features, depression, and PTSD. The examiner found that the Veteran met the DSM-V criteria for PTSD. It was noted that the Veteran witnessed rocket explosions that killed his commander, was forced to fire on the enemy during guard duty, and personally saw dead enemy soldiers on the side of the road. The examiner opined that adjustment disorder, depression, and PTSD were directly caused by service as there was no other reliable explanation across his life experiences; this assessment was consistent with his treatment records; high co-morbidity of mood disorders with PTSD; and that the Veteran met all diagnostic criteria for PTSD with no other source of trauma. The Veteran was afforded a VA examination in January 2018 in which the examiner found that his symptoms did not meet the diagnostic criteria for PTSD under DSM-V criteria and that he did not have a mental disorder that conformed with DSM-V criteria. The examiner stated that the Veteran reported his current mood and recent mood in the past month was "very good", which was inconsistent with most mental health diagnoses, particularly PTSD or mood disorders. The examiner stated that it was possible to experience symptoms at a mild or subclinical level without it causing impairment in functioning; as such, while the Veteran reported symptoms, they did not disable or impair his functioning. The Board notes that a thorough search of the VA treatment records would have yielded numerous references to symptoms such as depression albeit lessened as the Veteran takes an antidepressant. As such, the Board affords this opinion no probative value. The Board concludes that the Veteran has a current diagnosis of an acquired psychiatric disability, variously diagnosed as adjustment disorder with mixed emotional features, depression, and PTSD that is related to his active duty service in Vietnam. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303 (a), 3.304 (f)(3). That is, in light of the above, the Board finds that the elements of 38 C.F.R. § 3.304 (f)(3) have been satisfied and that the evidence is at least in equipoise as to whether the Veteran’s acquired psychiatric disability, variously diagnosed as adjustment disorder with mixed emotional features, depression, and PTSD is related to his active duty service. The benefit of the doubt rule is therefore for application. See, 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2017). Increased Rating Claim Ischemic Heart Disease Initial disability rating issues are generally considered “downstream” elements of the service connection claim. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (interpreting that separate notification is not required for the “downstream” issue of initial rating); 38 C.F.R. § 3.159 (b) (3) (i) (2017) (reflecting that there is no duty to provide VCAA notice upon receipt of a notice of disagreement). Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran’s service-connected IHD. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board notes that when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102. Initially, the Board notes that although it has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. IHD is rated under Diagnostic Code 7005. The rating criteria are as follows. A 10 percent rating is warranted for a workload of greater than 7 metabolic equivalents (METs) but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or continuous medication required. A 30 percent rating is warranted if a workload between 5 and 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is evidence of cardiac hypertrophy or dilatation. A 60 percent rating is warranted if there had been more than one episode of acute congestive heart failure (CHF) in the past year; or if a workload between 3 and 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of 30-50 percent. A 100 percent rating is warranted if there is chronic CHF; or if a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, Diagnostic Code 7005 (2017). In a February 2011 rating decision, service connection for IHD associated with herbicide exposure was granted with a 30 percent evaluation, effective March 31, 2010. Subsequently in an April 2019 rating decision, the disability rating for the IHD was increased to 60 percent effective February 12, 2018. Prior to February 12, 2018 The Veteran was afforded a VA examination in September 2010 in which he reported dyspnea. His ejection fraction was greater than 50 percent and estimated METs based on daily activities was more than 5. The Veteran was afforded a VA examination in January 2012 that showed a treatment plan of continuous medication. The examination showed a workload between 5 and 7 METs resulting in dyspnea. The left ventricular ejection fraction was 60 percent. A private treatment record in September 2013 showed a workload greater than 5 but not greater than 7 METs resulting in dyspnea and fatigue with continuous medication required. The Veteran submitted a private examination in January 2018 in which Dr. N.S. opined that the IHD caused a workload greater than 5 but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope or evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray. Based upon the evidence above, the Board finds that an initial rating in excess of 30 percent prior to February 12, 2018, is not warranted. The next highest rating of 60 percent requires more than one episode of acute CHF in the past year; or if a workload between 3 and 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of 30-50 percent. Prior to February 12, 2018, the evidence of record showed IHD was manifested by a workload between 5 and 7 METs resulting in dyspnea and fatigue as required for a 30 percent rating and not higher. Since February 12, 2018 The Veteran was afforded a VA examination in February 2018 in which he reported shortness of breath and fatigue. Left ventricular ejection fraction was noted as 55 to 60 percent. The examination showed workload greater than 3 but not greater than 5 METs. After consideration of the evidence of record, the Board finds that higher ratings are not warranted for any period on appeal. The Board acknowledges that in advancing this appeal, the Veteran believes that his disability was more severe than the assigned disability ratings reflects; however, the competent medical evidence is the most probative evidence with regard to evaluating the pertinent symptoms for the IHD on appeal. A rating in excess of 60 percent since February 12, 2018, is not warranted. The next highest rating of 100 percent rating requires chronic CHF; or if a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or if there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Since February 12, 2018, the evidence of record showed that IHD has been manifested by a workload between 3 and 5 METs resulting in dyspnea and fatigue as required for a 60 percent rating and not higher. For the reasons above, the Board finds the criteria for entitlement to an initial disability rating in excess of 30 percent for IHD prior to February 12, 2018, and in excess of 60 percent thereafter are not met. TDIU TDIU is granted where service-connected disabilities are so severe that it is impossible for the Veteran to secure or follow a substantially gainful occupation. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration is given to the Veteran’s level of education, special training, and previous work experience. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. §§ 3.341, 4.16, 4.19. In this case, the Veteran meets the schedular criteria for TDIU pursuant to 38 C.F.R. § 4.16(a) and such service-connected disabilities impose sufficient physical and mental limitations to preclude substantially gainful employment. The Veteran is service-connected for prostate cancer, rated as 100 percent disabling; IHD, rated as 60 percent disabling; tinnitus, rated as 10 percent disabling; DM, rated as 10 percent disabling, and left ear hearing loss, rated as 0 percent disabling. His combined disability evaluation is 100 percent. In a private treatment record in August 2013, the examiner stated that the Veteran could not work in any capacity due to his chronic pain in his back, heart, and neck pain. He could not sit or stand for any length of time, lived in constant pain in the back, and could not do any significant work. The Veteran submitted a private examination in January 2018 in which the examiner stated that based on examination and evaluation of the Veteran’s restrictions and limitations that he was not capable of engaging in substantial gainful occupation due to his pain, limited range of movement, leg numbness, and loss of balance as related to his back. After careful review of the record, the Board finds the Veteran experiences functional limitations due to service-connected disabilities that preclude substantially gainful employment. See Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994) (TDIU may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran’s disability does not prevent him or her from performing work that would produce sufficient income to be other than marginal). Therefore, affording the Veteran all benefit-of-the-doubt, the Board finds that the Veteran is unable to perform the physical and mental acts required for substantially gainful employment due to his service-connected disabilities. Accordingly, TDIU is granted. REASONS FOR REMAND Manlincon Issues The Board notes that the Veteran filed a notice of disagreement (NOD) in June 2018 at the RO concerning entitlement to service connection for neuropathy, peripheral of the right and left lower extremity, claimed as secondary to DM; and filed a NOD in May 2019 regarding the rating and effective date assigned to the service-connected DM. Although the appeal regarding neuropathy is listed in the VACOLS appeals tracking system, it has been a year since the NOD was filed; however, the issues regarding DM are not listed in VACOLS; and a statement of the case (SOC) has not yet been issued. Therefore, the Board finds that these issues must be remanded for the issuance of such an SOC. 38 U.S.C. § 7105; 38 C.F.R. § 19.9 (c) (2017), see Manlincon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: Issue an SOC on the issues of entitlement to service connection for neuropathy, peripheral of the right lower extremity, claimed as secondary to DM; entitlement to service connection for neuropathy, peripheral of the left lower extremity, claimed as secondary to DM; entitlement to an initial rating in excess of 10 percent for DM; and entitlement to an effective date earlier than March 31, 2010, for the grant of service connection for DM. The SOC must contain notice of all relevant actions taken on the claims for benefits, to include the applicable law and regulations pertinent to the issues. These issues should be certified to the Board only if the appellant submits a timely and sufficient substantive appeal, and the appellant should be informed of this fact. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.M.K., 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.