Citation Nr: 20065166 Decision Date: 10/07/20 Archive Date: 10/07/20 DOCKET NO. 09-02 141 DATE: October 7, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, from April 20, 2006, is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran is in receipt of service connection for the following disabilities: degenerative disc disease of the cervical spine, status post laminectomy with chronic neck pain, rated 20 percent disabling, from April 20, 2006; hypertension, rated 20 percent disabling, from April 20, 2006; radiculopathy of the right upper extremity, rated 20 percent disabling, from April 20, 2006; tinnitus, rated 10 percent disabling, from April 20, 2006; left ear hearing loss, rated noncompensable, from April 20, 2006; and status post surgery for right spontaneous pneumothorax, rated noncompensable, from January 17, 2008; his combined disability rating is 50 percent, from April 20, 2006. 2. The evidence is at least evenly balanced as to whether, since April 20, 2006, the Veteran’s service-connected disabilities have precluded all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU due to service-connected disabilities, from April 20, 2006, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1980 to November 1985, November 1990 to July 1991, and January 2003 to January 2005. He had additional service with the Army National Guard, to include a period of active duty for training (ACDUTRA) from June 1964 to December 1964. His awards include the Army Commendation Medal. This matter initially came before the Board of Veterans’ Appeals (Board) from a January 2007 rating decision, in which the agency of original jurisdiction (AOJ) awarded service connection for chronic neck pain with radiculopathy and assigned an initial noncompensable disability rating, from April 20, 2006. The Veteran testified before a Veterans Law Judge (VLJ) at a March 2013 hearing and a transcript of the hearing is associated with his claims file. The VLJ who conducted the hearing is no longer employed at the Board and is unable to participate in any further adjudication. In July 2013, the Board awarded an initial 10 percent disability rating for radiculopathy of the right upper extremity. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In December 2014, the Court set aside the Board’s July 2013 decision, in part, and remanded to the Board the issue of entitlement to an initial rating higher than 10 percent for radiculopathy of the right upper extremity for readjudication in compliance with directives specified in a December 2014 Joint Motion filed by counsel for the Veteran and VA. In June 2016, the Board awarded an initial 20 percent rating, prior to July 20, 2015, and denied an initial rating higher than 10 percent, from July 20, 2015, for radiculopathy of the right upper extremity. The Veteran appealed the Board’s decision to the Court. In a December 2017 Memorandum Decision, the Court set aside the Board’s June 2016 decision, in part, and remanded to the Board the issue of entitlement to an initial rating higher than 10 percent for radiculopathy of the right upper extremity, from July 20, 2015, for readjudication in compliance with the Court’s decision. In September 2018, the Board expanded the appeal to include the issue of entitlement to a TDIU, as part and parcel of the appeal for a higher initial rating for radiculopathy of the right upper extremity. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Board awarded an initial 20 percent rating for radiculopathy of the right upper extremity, from July 20, 2015, and remanded the TDIU issue for further development. As a final preliminary matter, in August 2020, the Board sent the Veteran a letter which informed him that the VLJ who conducted the March 2013 hearing was no longer employed at the Board, asked him to indicate whether he wanted to attend a new hearing, and indicated that a failure to respond within 30 days would result in an assumption that another hearing was not desired. A copy of this letter was also sent to the Veteran’s representative. The Veteran did not respond to the August 2020 letter. Therefore, it is assumed that he does not want another hearing and the Board shall proceed to consider his appeal. TDIU VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. 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). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). However, even when the percentage requirements under 38 C.F.R. § 4.16 (a) are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) in the first instance without ensuring that the claim is first referred to VA’s Director of Compensation (Director) for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). The Board points out that although it is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. The Board conducts a de novo review of the Director’s decision denying extraschedular consideration under 38 C.F.R. § 4.16 (b) and the Director’s decision is in essence the decision of the AOJ and not evidence. Wages v. McDonald, 27 Vet. App. 233, 236-39 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16 (b)). In this case, the issue of entitlement to an extraschedular TDIU pursuant to 38 C.F.R. § 4.16 (b) has already been referred to the Director and the Director has issued a decision. Therefore, the TDIU issue is now before the Board and can be addressed on the merits. Cf. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) (“[T]here is no restriction on the Board’s ability to review the denial of an extraschedular rating [under 38 C.F.R. § 3.321 (b)(1)] on appeal”). The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any non- service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Marginal employment shall not be considered substantially gainful employment. Marginal employment generally shall be deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (including but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). In Ray v. Wilkie, 31 Vet. App. 58 (2019), Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Entitlement to a TDIU due to service-connected disabilities Considering the pertinent evidence in light of the considerations delineated above, the Board finds, for the following reasons, that the evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities have precluded all substantially gainful employment for which his education and occupational experience would otherwise qualify him during the entire period on appeal from April 20, 2006. As explained above, the TDIU issue on appeal was raised as part and parcel of the appeal for a higher initial rating for radiculopathy of the right upper extremity. Therefore, the claim period for the TDIU matter dates back to the April 20, 2006 effective date of service connection for radiculopathy of the right upper extremity. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). The Veteran is service-connected for the following disabilities: degenerative disc disease of the cervical spine, status post laminectomy with chronic neck pain, rated 20 percent disabling, from April 20, 2006; hypertension, rated 20 percent disabling, from April 20, 2006; radiculopathy of the right upper extremity, rated 20 percent disabling, from April 20, 2006; tinnitus, rated 10 percent disabling, from April 20, 2006; left ear hearing loss, rated noncompensable, from April 20, 2006; and status post surgery for right spontaneous pneumothorax, rated noncompensable, from January 17, 2008. His combined disability rating is 50 percent, from April 20, 2006. The remaining question is whether his service-connected disabilities preclude gainful employment for which his education and occupational experience would otherwise qualify him. A January 2006 examination report from M.B. Ellis, D.O., the reports of VA general medical, spinal, hypertension, and respiratory examinations dated in November 2007, a November 2007 VA audiological examination report, an April 2009 statement from the Veteran (VA Form 21-4138), and the report of an August 2009 VA Gulf War examination indicate that the Veteran took daily medication to control his hypertension, that there was a history of headaches related to hypertension, and that he experienced chronic fatigue and exhaustion upon even mild exertion, joint pain and fatigue associated with rheumatoid arthritis and gout, disrupted sleep and morning fatigue associated with sleep apnea, left ear hearing loss, and constant tinnitus. He also experienced fatigue, loss of right-hand grip strength, right hand numbness, right arm pain which was worsened by activity, and decreased motion, stiffness, weakness, muscle spasms, and pain associated with the cervical spine. The neck pain was constant, moderate in severity, and sharp/burning in nature, occurred on a daily basis, and radiated to the right arm. Flare ups of increased neck pain occurred approximately every 3 to 4 months and they were alleviated by epidural injections. The Veteran was able to walk ¼ of a mile at a time. Examinations revealed that there was painful and limited motion of the cervical spine, that the Veteran had a mildly stooped cervical posture and avoided lifting his head, and that right hand grip strength was occasionally impaired (4/5). His coordination and gait were normal, he did not have any motor or sensory loss, his right upper extremity reflexes were normal (2+), and his right upper extremity muscle strength was otherwise normal (5/5). A chest x-ray and pulmonary function testing revealed a small airway obstructive defect (chronic obstructive pulmonary disease (COPD)) without infiltrates and there was moderately severe left ear hearing loss. The Veteran’s service-connected hypertension, cervical spine disability, and status post surgery for right spontaneous pneumothorax did not have any significant occupational effects, but he had to be careful with any activity that required repetitive turning or bending of his neck, his cervical spine disability had mild to severe effects on various activities of daily living, and his hearing loss impacted his ability to understand conversational speech. The Veteran reported that he was not able to perform any physical labor, lift, or carry any significant weight. He had been employed as a maintenance technician with the National Guard until February 2006, at which time he retired due to multiple lung problems. The reports of VA neurological and respiratory examinations dated in March 2012, the Veteran’s testimony during the March 2013 Board hearing, an April 2014 VA audiological examination report, the report of a July 2015 VA neurological examination, an April 2018 “Veteran’s Application for Increased Compensation Based on Unemployability” form (VA Form 21-8940) and attached statement from the Veteran, a report of the Veteran’s Social Security Administration (SSA) earnings, and his SSA disability records indicate that he worked as a heavy auto mechanic with the National Guard from 1986 to March 2006, that he stopped working in March 2006 due to his disabilities after using up his sick leave, and that he was not gainfully employed since that time. He was right hand dominant and had experienced decreased right upper extremity strength since 2003-2004. He also experienced mild occasional numbness and paresthesias/dysesthesias in his right arm/hand, intermittent to constant mild radiating pain in his right upper extremity, fatigue, shortness of breath when walking between 8-10 steps and one block, a daily cough with occasional expectoration, right-sided chest pain while breathing, left ear hearing loss, and tinnitus “more than half the time.” His right arm pain and numbness lasted up to 4 to 5 hours at a time. He received steroid injections up to four times per year for temporary relief of his neck and right upper extremity symptoms and his respiratory condition required the use of oral bronchodilators. Moreover, the Veteran reported that he was unable to perform any activities that required physical exertion (e.g., changing lightbulbs, mowing the grass), he experienced difficulty looking down at a newspaper or reading a book longer than 15 minutes and was unable to turn his head without turning his entire body due to his cervical spine disability, he experienced significant difficulty reaching his arms above his head due to pain associated with his neck disability, and he was not comfortable carrying any items heavier that “a gallon of milk” due to his right upper extremity neurological symptoms (he had dropped numerous items throughout the years because of numbness and/or shooting pain in his right arm). Also, he experienced difficulty writing and placing his right arm in a typing position and experienced “profound difficulty communicating with people” due to his hearing loss and tinnitus. He had to ask others to repeat themselves multiple times if he was having a conversation amid background noise and he experienced difficulty hearing people on the telephone. Examinations revealed that right upper extremity muscle strength was all normal (5/5), that there was no muscle atrophy, that right upper extremity reflexes were all normal (2+), and that right upper extremity sensation was all normal. The Veteran did not have any trophic changes attributable to peripheral neuropathy, his gait was normal, and he did not use any assistive devices. He had a history of spontaneous partial pneumothorax and chest x-rays revealed mild COPD and unchanged pleural scarring in the right lower lateral thorax consistent with prior pleurodesis. Pulmonary function testing did not show any evidence of obstructive or restrictive lung defects. The physician who conducted the March 2012 respiratory examination explained that pleural scarring due to pleurodesis was likely to cause restrictive lung defect, but not COPD. The Veteran was diagnosed as having residuals of cervical foraminectomy, COPD, and post pleurodesis for spontaneous pneumothorax. His right upper extremity neurological disability did not impact his ability to work, but his respiratory disability impacted his ability to perform manual work and his hearing loss resulted in difficulty hearing in all settings. In a June 2018 vocational assessment report, certified rehabilitation counselor Z.T. Fosberg noted that he interviewed the Veteran and reviewed his entire claims file. He explained, in pertinent part, that the Veteran was most recently employed on a full-time basis with the Army National Guard in approximately March 2006. He was unable to pass a physical examination in May 2005 due to his neck disability and he stopped working in March 2006. While employed, his job required him to provide maintenance on vehicles, but he was transferred to a sedentary clerical position in approximately December 2004 due to his physical limitations. This clerical position required him to sign for incoming shipments and enter information into a computer. He “stayed for the work day and hung out” because he was physically limited, he required at least 6 unscheduled breaks up to 15 minutes each time on a daily basis, and he was able to work on a computer for approximately 10 minutes at a time before he required a break due to increased neck pain. After the Veteran’s disability retirement in 2006, his service-connected disabilities continued to increase in severity. He had to sit for approximately 5 hours intermittently per day due to neck pain, he had to hold books at eye level due to increased neck pain during flexion, he avoided extension, flexion, and rotation of his neck, and he had to turn the trunk of his body when he looked to the side in order to avoid rotating his neck. He experienced flare ups of neck symptoms approximately six times per month and the flare ups lasted up to 2 days at a time. During flare ups, he would lie down in bed with a pillow under his neck and his concentration was severely impaired. He would lose his thought while in conversation, he was unable to focus on a 30-minute television program, and lying down was the best source of relief for his chronic neck pain. Moreover, the Veteran was severely limited by his right upper extremity radiculopathy. He limited the use of his right (dominant) upper extremity due to sporadic pain, numbness, and tingling (which also occurred when the arm was not being used), the onset of pain could occur without a trigger while sitting, and use of the right arm (such as writing his name or changing a lightbulb) resulted in the onset of right arm pain. Also, he experienced constant right arm weakness (e.g., he had to use his left hand for support if he was holding a cup in his right hand in order to avoid dropping the cup). Moreover, the Veteran was impaired by his hearing loss and tinnitus in that he had to face an individual during a conversation, he experienced difficulty having conversations when multiple individuals were speaking at the same time or when there was background noise, and others had to repeat themselves during a conversation if there was background noise. He experienced tinnitus at least 3 times per week for up to 30 minutes at a time, during which time his hearing was even more disrupted, and he was unable to maintain concentration. Overall, Z.T. Fosberg noted that the relevant physical limitations caused by the Veteran’s service-connected disabilities since 2006 included impaired feeling/sensation (numbness and tingling with increased use of the right arm); impaired reaching (avoidance of overhead reaching and repetitive forward reaching in any direction due to right arm radiculopathy); impaired lifting/carrying (an inability to lift and carry items heavier than one gallon of milk); impaired handling and grip strength (difficulty holding a cup with only the right hand and difficulty with manipulating buttons and zippers); impaired sitting (was only able to sit for 15 minutes at a time due to increased neck pain); impaired standing (was only able to stand for 15 minutes at a time due to increased neck pain); impaired walking (was only able to walk 100 yards at a time due to increased neck pain); impaired bending (avoided bending due to increased neck pain); impaired climbing (was only able to climb three steps while holding onto a railing due to increased neck pain); and impaired neck range of motion (he kept his neck in a neutral position and turned his entire body instead of moving his neck). Z.T. Fosberg further explained that the Veteran graduated high school in approximately 1964, after which time he joined the military. He attended multiple military schools and earned the equivalency of 2 years of college education because he needed to continue his education in order to maintain his military grade in the years since 1981. During service, he was certified in nuclear and biological warfare, was certified as a heavy equipment repairman, and was certified to teach heavy equipment repair and maintenance. He worked in a civil service position in an organizational maintenance shop during service. He was originally assigned as a heavy equipment repairman, which involved providing maintenance on vehicles. He began to experience difficulty performing his job duties due to the physical limitations associated with his neck and right arm disabilities. Therefore, he was assigned to a sedentary clerical position which involved signing paperwork for the receipt of shipments and entering information in the computer. During this time, he required at least 6 unscheduled breaks up to 15 minutes at a time on a daily basis and his supervisors were aware of his physical limitations. He was discharged from the National Guard in March 2006 due to his inability to meet the physical requirements. Moreover, Z.T. Fosberg reported that in his vocational opinion, it was likely (“at least as likely as not”) that the Veteran had been unable to secure and follow substantially gainful employment since March 2006, at which time his symptoms were severe and would have precluded his ability to continue working in any capacity due to his service-connected neck disability, right upper extremity radiculopathy, tinnitus, and left ear hearing loss. The rehabilitation counselor explained that the Veteran had no income since 2006 according to his SSA earnings statement and he specifically identified various records in the Veteran’s claims file. The Veteran experienced severe limitations in sitting and standing, significantly limited range of motion in his neck, the need for frequent unscheduled breaks to stand or lie down, marked limitation in concentration due to neck and right arm pain and tinnitus, an inability to repetitively use his right hand, and severe limitations interacting with supervisors, coworkers, and supervisors due to his hearing loss and tinnitus. He continued to be affected by severe symptoms from his service-connected disabilities in the years since he stopped working in 2006 and the amount of unscheduled breaks and absenteeism that the Veteran required due to his neck pain and right upper extremity radiculopathy would not be tolerated by employers in substantially gainful activity levels, even at the sedentary unskilled level. Sedentary employment is defined by the Dictionary of Occupational Titles as exerting up to 10 pounds of force occasionally (activity or condition which exists up to 1/3 of the time) and/or a negligible amount of force frequently (activity or condition which exists from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects (including the human body). Sedentary work involves sitting most of the time, but may involve walking or standing for brief periods of time. Jobs are sedentary if walking and standing are required only occasionally and all other sedentary criteria are met. In light of the Veteran’s symptoms, it was likely (“at least as likely as not”) that he was not physically capable of sedentary work (as defined above) due to his inability to maintain a seated posture for more than 15 minutes at a time and his need to stand and walk away from his work station as a result of his service-connected neck disability. Also, most sedentary occupations require frequent to constant use of the bilateral upper extremities. The Veteran was unable to use his dominant right arm for more than a few minutes at a time. According to the Department of Labor, 92 percent of jobs require frequent to constant use of the hands. Limiting the Veteran to work without the use of his dominant hand due to his service-connected upper extremity radiculopathy, as well as his impaired interaction with coworkers, supervisors, and the general public due to his service-connected left ear hearing loss and tinnitus, would further erode these numbers to no work at substantially gainful activity levels. In sum, Z.T. Fosberg concluded that due to the Veteran’s service-connected disabilities, he was unable to secure and follow a substantially gainful occupation since he was discharged from the National Guard in 2006. This opinion was rendered despite any medical professional’s opinion that the Veteran was able to engage in work activity. Medical professionals are qualified to define the physical or emotional limitations extending from a condition, but have no expertise in translating this information into opining on whether this degree of restriction or limitation, or both, prevents one from working. In July 2020, the Director reviewed the Veteran’s claims file and concluded that entitlement to an extraschedular TDIU was not warranted. In pertinent part, the Veteran could work from a computer as part of a required occupational task, at least intermittently, with proper ergonomic settings and monitor height. He had some history of semi-skilled sedentary work. Z.T. Fosberg relied heavily on the Veteran’s reported history and he concluded that the Veteran was unable to work because of his inability to use his right arm/hand. However, the other evidence of record contradicted the Veteran’s reports and did not support non-use of the right arm/hand. There are many jobs in the workplace that require only light activity and for which a person without a college degree would be capable of performing. In this case, however, the Veteran had multiple years of college education. Thus, it was shown that he has an aptitude to learn new skills. Also, the Veteran would be able to handle less physically demanding jobs as long as he was able to alternate his body positions. Furthermore, such limitations could reasonably be mitigated with adaptive equipment, such as a sit/stand desk. Overall, the evidence failed to support the conclusion that any of the Veteran’s service-connected disabilities, or a combination of the effects of those disabilities, supported an exceptional situation that prevents gainful employment. The above evidence reflects that the Veteran has a high education and that he earned the equivalent of 2 years of college by taking classes while serving with the National Guard. His employment experience almost entirely consisted of physical labor as a heavy equipment repairman with the National Guard, and he was only temporarily transferred to an administrative position towards the end of his career due to the increasing physical limitations caused by his service-connected neck and right upper extremity disabilities. His supervisors were aware of his physical limitations during this time, he stopped working in March 2006, and he has not been gainfully employed since that time. In the years since his retirement, he has experienced symptoms associated with his service-connected disabilities that result in functional impairments that significantly interfere with his ability to secure and follow any substantially gainful employment consistent with his education and occupational experience involving physical labor. For instance, his medical records and lay statements reflect symptoms and impairments associated with his service-connected neck disability, right upper extremity (his dominant upper extremity) neurological disability, and respiratory disability (including, but not limited to, neck pain, painful and limited motion of the cervical spine, right arm/hand pain, numbness, and weakness, shortness of breath, an inability to stand and sit for prolonged periods, an inability to perform overhead activities, an inability to hold and carry objects, and an inability to perform various physical activities) that would prevent him from performing any type of substantially gainful employment consistent with his education and primarily physical occupational experience. Moreover, the hearing loss, impaired concentration, and impaired ability to understand conversation associated with his service-connected hearing loss and tinnitus also contribute to his inability to work. The Board acknowledges that the Veteran performed some non-physical employment towards the end of his career with the National Guard. However, this only involved signing for incoming shipments and entering data into a computer, he still required frequent breaks while performing these tasks due to the symptoms associated with his service-connected disabilities, and his supervisors were aware of his physical limitations. The Board also acknowledges that the Veteran experiences impairments from various non service-connected disabilities (e.g., COPD, gout, rheumatoid arthritis) that would impair his ability to work. Nevertheless, overall, the above discussion of the severity of the symptoms of the Veteran’s service-connected disabilities and his educational and occupational experience, to include the opinion from certified rehabilitation counselor Z.T. Fosberg, reflects that the evidence is at least evenly balanced as to whether he has been unable to secure and follow substantially gainful employment due solely to his service-connected disabilities during the entire claim period since April 20, 2006. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU, from April 20, 2006, is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Elwood, 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.