Citation Nr: 20021220 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 19-28 359 DATE: March 25, 2020 ORDER New and material evidence has been submitted to reopen the previously denied claim for entitlement to urinary tract infections (UTIs). Entitlement to service connection for scar, anus status-post hemorrhoidectomy, is granted. Entitlement to an earlier effective date for posttraumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for UTIs is remanded. Entitlement to service connection for bilateral open-angle glaucoma is remanded. Entitlement to a rating in excess of 10 percent rating for conjunctivitis prior to August 16, 2017, is remanded. Entitlement to a rating in excess of 10 percent for hemorrhoids is remanded. Entitlement to a rating in excess of 10 percent for left knee arthritis is remanded. Entitlement to an initial evaluation in excess of 30 percent for PTSD is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. A May 1995 rating decision to which the Veteran was notified in that month denied service connection for UTIs; the Veteran did not perfect a timely appeal with respect to the May 1995 rating decision and no pertinent exception to finality applies. 2. Evidence received since the May 1995 rating decision raises a reasonable possibility of substantiating the claim for service connection for UTIs. 3. The Veteran’s scar is related to his in-service hemorrhoidectomy surgery. 4. The Veteran filed a formal claim for service connection for PTSD on May 11, 2018. CONCLUSIONS OF LAW 1. The May 1995 rating decision that denied service connection for UTIs is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 2. New and material evidence has been received to reopen the previous denial of the claim for service connection for UTIs. 38 U.S.C. §§ 5108, 7105 (c); 38 C.F.R. § 3.156(a). 3. The criteria for service connection for hemorrhoidectomy scar have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.159, 3.303. 4. The criteria for an effective date earlier than May 11, 2018, for the grant of service connection for PTSD, have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.155, 3.157, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1972 to April 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2014 and July 2018 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran also appealed decisions for entitlement to service connection for diabetes mellitus, prostate cancer, fibromyalgia, 4th finger of the right hand, spinal stenosis, right hand condition, degenerative arthritis of the left wrist, and chronic allergies. These issues have not yet returned to the Board for appellate review and will not be discussed in this decision. 1. New and material evidence for entitlement to service connection for UTIs Rating actions are final, and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U.S.C. § 7105(b) and (c); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.202, and 20.302(a). If new and material evidence is received during an applicable appellate period following a RO decision (1 year for a rating decision and 60 days for a statement of the case), the new and material evidence will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). Thus, under 38 C.F.R. § 3.156(b), “A must evaluate submissions received during the relevant [appeal] period and determine whether they contain new evidence relevant to a pending claim, whether or not the relevant submission might otherwise support a new claim.” Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011). “[N]ew and material evidence” under 38 C.F.R. § 3.156(b) has the same meaning as “new and material evidence” as defined in 38 C.F.R. § 3.156(a). See Young v. Shinseki, 22 Vet. App. 461, 468 (2011). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means evidence not previously submitted. Material evidence means existing evidence that by itself or when considered with previous evidence relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of last final decision and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold and viewed the phrase “raises a reasonable possibility of substantiating the claim” as “enabling rather than precluding reopening.” For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). A May 1995 rating decision to which the Veteran was notified in that same month denied service connection for UTIs. The Veteran did not perfect a timely appeal with respect to the May 1995 rating and none of the pertinent exceptions to finality applies exceptions to this decision, i.e., no additional evidence was received within the one-year appeal period following the May 1995 rating decision and no additional service department records have since been associated with the claims file warranting reconsideration of the claim for service connection for UTIs. Therefore, the May 1995 rating decision is final as to the evidence then of record and is not subject to reconsideration on the same factual basis. 38 U.S.C. § 4005(c); 38 C.F.R. §§ 3.104, 19.118, 19.153. By way of background, the Veteran’s initial claim for service connection for UTIs was denied by a May 1995 rating decision. The RO determined that the although there was a record of treatment in service for UTIs, no permanent residual or chronic disability subject to service connection was shown by service medical records or demonstrated by evidence following service. The evidence of record at the time of the only final rating decision addressing the claim for service connection for UTIs in May 1995 included the service treatment records and a VA examination from September 1994. The Veteran reported at the examination that he has had recurrent UTIs since 1972. He has them every four or five years with the last one being in 1988 and it will respond to Septra. He has had no further problems, no current complaints, and there were no remarkable findings on the examination with no known ongoing problems related to the condition. The evidence of record since the May 1995 rating decision includes treatment records from Henry Ford Hospital noting a UTI in April 2009. Additional records from Arkansas Urology noted a history of UTIs in the past. The treatment records show that he was diagnosed with UTI in December 2009. The private treatment records are new because it was not before the RO at the time of the May 1995 rating decision. In addition, this evidence is material because, when considered with the previous evidence of record, it related to an unestablished fact necessary to substantiate his claim for service for UTI, namely a current diagnosis and evidence of a disability following service. Thus, the Board finds that the evidence submitted is both new and material, and his claim for service connection for UTIs is reopened. 2. Entitlement to service connection for hemorrhoidectomy scar The Veteran has been service connected for hemorrhoids at 10 percent since May 1994. He filed a claim for increase in June 2014. In September 2014, The RO continued the 10 percent rating. While he did not specifically claim a scar, the evidence of record shows that there is a residual scar due to his hemorrhoidectomy that he underwent during service. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). The Veteran was afforded a VA examination in July 2014 for his hemorrhoids. The VA examiner found that the Veteran had a scar related to his hemorrhoids, but that the scar was not painful or unstable. The scar was not greater than 39 square centimeters (6 square inches). In October 2018, the Veteran was examined again by the VA for his hemorrhoids. He was also afforded a scar examination. The VA examiner diagnosed the Veteran with scar on the anus status-post hemorrhoidectomy. The VA examiner found that there was one painful scar located on the trunk. However, the scar was not found to be unstable with frequent loss of covering of skin over the scar. The Veteran declined the physical examination, and the VA examiner was not able to provide the measurements of the scar. Nonetheless, the Board finds the Veteran credible in his report that the scar is painful. Thus, service connection is warranted for the hemorrhoidectomy scar that is proximately due to surgery during a period of honorable active service. 3. Entitlement to an earlier effective date for PTSD The Veteran contends that he is entitled to an effective date earlier than May 11, 2018, for the grant of the 30 percent disability rating for PTSD. Generally, except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Specifically, for original claims for service connection, the effective date can be the day following separation from active service if the claim is received within one year after separation from service. Otherwise, the rule is the date of receipt of claim, or date entitlement arose, whichever is later. See 38 C.F.R. § 3.400(b)(2)(i). VA amended its adjudication regulations on March 24, 2015, to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57,660 (Sept. 25, 2014). Under the old regulations, any communication or action, indicating an intent to apply for one or more benefits under laws administered by VA, from a claimant or the claimant’s representative, may be considered an informal claim. Such informal claims must identify the benefit sought. Thus, prior to March 24, 2015, a claim could be either a formal or informal written communication “requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” See 38 C.F.R. § 3.1(p). In this case, the Veteran first filed a claim for entitlement to service connection for PTSD, received by the VA, on May 11, 2018. He submitted a VA Form 21-526b, Veteran’s Supplemental Claim for Compensation, and only included the claim for service connection for PTSD on the application. The RO initially granted a 10 percent rating and assigned the effective date of May 11, 2018 by way of a July 2018 rating decision. He subsequently appealed this decision with respect to both the evaluation and effective date of the grant of PTSD. In August 2019, the RO increased the 10 percent rating to a 30 percent rating with the same effective date of May 11, 2018. With regard to the Veteran’s claim of an earlier effective date of May 11, 2018, the file shows no claim for service connection for any psychiatric condition, to include PTSD, prior to this date. While VA has a duty to assist a Veteran in developing facts pertinent to a claim, it is the Veteran who must bear the responsibility for coming forth with the submission of a claim for benefits under the laws administered by VA. See 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). While the Board is sympathetic to the Veteran’s contention, in which he maintains that he is entitlement to an effective date earlier than May 11, 2018, the Veteran’s file does not contain any written correspondence from him or his representative earlier than this date. There is no legal authority or evidentiary basis for the Board to assign an earlier effective date, as the RO has already assigned the earliest possible effective date for the award of the 30 percent rating for PTSD. In sum, the Board finds that an effective date earlier than May 11, 2018, for the award of a 30 percent rating for the service-connected PTSD is not warranted. As the preponderance of the evidence is against an earlier effective date for the grant of service connection for PTSD, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2018); see also Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). REASONS FOR REMAND Although the Board regrets the additional delay, a remand is necessary to ensure that due process is followed and there is a complete record upon which to decide the Veteran’s claim so that he is afforded every possible consideration. See U.S.C. § 5103A; 38 C.F.R. § 3.159. 1. Entitlement to service connection for UTIs The Veteran contends that his UTIs are related to his military service, or in the alternative, his prostate cancer. The Veteran stated that he is followed by a private urologist, Dr. R. K. See October 2018 VA treatment record. A review of the Veteran's claims file contains some medical records from this provider up until July 2018; however, it is unclear whether the record contains all updated private treatment records. On remand, efforts should be made to obtain any outstanding private treatment records. 2. Entitlement to service connection for bilateral open-angle glaucoma The Veteran is claiming service connection for his glaucoma. The Veteran specified that he received treatment in the 1990’s for glaucoma at Naval Hospital Bremerton Eye Clinic. See December 2015 VA Form 21-22, General Release for Medical Provider Information to the Department of Veterans Affairs. A PIES request was submitted for medical records in January 2018. The PIES responded in February 2018 that no search was possible based on information furnished. The RO attempted to obtain these records again and submitted a request to the National Personnel Records Center (NPRC) in July 2019. The NPRC responded that all VA requests for medical information/records should be initiated through the Personnel Information Exchange System (PIES) and they are returning the request without action. The RO resubmitted a request to PIES again for medical records in July 2019. In August 2019, the PIES responded that a search was conducted, but no records were located. The RO also attempted to obtain the medical records from Naval Hospital Bremerton Eye Clinic in October 2018 and submitted a requested via VA Form 21-8359 Information Re Veteran in Uniformed Services Hospital (Request by Department of Veterans Affairs). In October 2018, a response from Naval Hospital Bremerton Outpatient Medical Records stated that “Please see JLV for all Genesis, AHLTA, and HAIMS documents. Patient has electric health record.” In August 2019, the RO attempted to retrieve electronic records from Naval Hospital Bremerton Eye Clinic by way of the Joint Legacy Viewer (JLV). However, the RO did not associate the medical records with the claims file and instead only uploaded one appointment record from May 1997. In September 2019, the Veteran submitted documentation that he received treatment at Naval Hospital Bremerton in January 1997, May 1997, and August 1997. As such, the RO must obtain all the records available in JLV from 1997. Additionally, the Veteran indicated that he is followed by Dr. F.T., an ophthalmologist. See October 2018 VA treatment record. On remand, it is necessary for the RO to attempt to obtain these records. 4. Entitlement to a rating in excess of 10 percent rating for conjunctivitis prior to August 16, 2017 The Veteran was granted service connection with a noncompensable (0 percent) rating from May 1994. Subsequently, he filed a claim for increase in June 2014 and again in August 2017. In an August 2019 rating decision, the RO granted an increase to 10 percent with an effective date of August 16, 2017. Nonetheless, as the Veteran has not been granted the maximum benefit allowed for this disability for the entire appeal period, the claim is still active, as characterized on the title page. See AB v. Brown, 6 Vet. App. 35, 38 (1993). As noted in the previous section, the Veteran stated that he is followed by Dr. F.T., an ophthalmologist. See October 2018 VA treatment record. Therefore, a remand is necessary for the RO to attempt to obtain these records. 5. Entitlement to a rating in excess of 10 percent for hemorrhoids The Veteran contends that he is entitled to a rating higher than 10 percent for his hemorrhoids. The Veteran noted during a visit to the VA Medical Center that he receives most of his care from a private care physician, Dr. A.F. See October 2018 VA treatment record. A review of the Veteran's claims file does not contain any records from this provider. On remand, efforts should be made to obtain these outstanding private treatment records. 6. Entitlement to a rating in excess of 10 percent for left knee arthritis The Veteran asserts that his left knee condition is more severe than as currently reflected. The Veteran was most recently examined by the VA for his left knee condition in October 2018. The Veteran did not report flare-ups but did report having functional loss or functional impairment of the left knee including but not limited to repeated use over time. He described his functional loss or functional impairment as sometimes having difficulty with walking because his knee gives out on him. Upon examination, there was evidence of pain with weight bearing. The VA examiner noted that pain, weakness, fatigability or incoordination significantly limits functional ability with repeated use over a period of time. However, the examiner stated that it was not possible to accurately estimate the exact range of motion (ROM) loss as the Veteran’s limitations are variable depending on the duration of repeated use over the time or the severity of a flare-up. The United States Court of Appeals for Veterans' Claims (Court) has recently addressed 38 C.F.R. § 4.40, which states that a VA examiner must "express an opinion on whether pain could significantly limit functional ability" and the examiner's determination in such regard should, if feasible, be portrayed in terms of the degree of additional loss of range of motion due to pain on use or during flare-ups. In this regard, the Court concluded that, when a VA examiner is asked to provide an opinion as to additional functional loss during flare-ups or repeated use over time of a musculoskeletal disability, the examiner must obtain information from the Veteran regarding the severity, frequency, duration, characteristics, and/or functional loss related to such flare-ups. The Court further concluded that, if the examination was not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of range of motion during a flare-up without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Thus, the rationale the examiner provided regarding the additional ROM loss due to the Veteran’s limitations is inadequate under Sharp, as it is unclear whether the examiner considered all procurable data, including information regarding frequency, duration, characteristics, severity, and/or functional loss related to such repeated use elicited from the Veteran. Additionally, the examination report reflects while the examiner recorded the Veteran's range of motion, the examiner did not specify whether testing was done for pain on weight-bearing and non-weight-bearing and did not report range of motion for this testing. The report also does not reflect at what degree pain begins. Therefore, the examination report is ambiguous on whether these levels of testing were completed. In Correia, the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Id.; see also 38 C.F.R. § 4.59. Upon review of the Veteran's VA examinations performed during the course of the appeal, it does not appear that such conformed to the Court's holdings in Correia and Sharp. Therefore, a remand is necessary in order to afford the Veteran a new VA examination that addresses such matters. Furthermore, the Veteran noted during a visit to the VA Medical Center that he receives most of his care from a private care physician, Dr. A.F. See October 2018 VA treatment record. It does not appear that records from this provider have been associated with the Veteran’s claim file. On remand, efforts should be made to obtain any outstanding private treatment records. 6. Entitlement to an initial evaluation in excess of 30 percent for PTSD The Veteran contends his PTSD is more severe than that as reflected by the current 30 percent assigned rating. As the last VA examination was provided in June 2018, a new examination is required. The Veteran reported in October 2018 that he is followed for his mental health condition in Texarkana. See October 2018 VA treatment record. It is unclear whether he was referring to a VA Medical Center or a private facility. On remand, the Veteran should be afforded the opportunity to identity and/or submit any outstanding mental health treatment records, specifically those from the mental health facility in Texarkana. 7. Entitlement to a TDIU The Veteran stated in June 2014 that due to his service-connected disabilities, he is unable to hold a full-time job. He also stated that he last worked in January 2011. See June 2014 Statement in Support of Claim. In July 2014, the RO sent the Veteran correspondence requesting him to complete VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. To date, the Veteran has not submitted the application. However, as the Veteran has raised a claim of entitlement to a TDIU, as part of the higher rating claims for some of his service-connected disabilities, TDIU must be considered part and parcel of the claim for benefits. See Rice v. Shinseki, 22 Vet. App. 447 (2009) In Rice, the Court held that a claim for total disability rating for compensation based on individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. Furthermore, the Court held that when evidence of unemployability is submitted at the same time the Veteran is appealing the initial rating assigned for a disability, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. Given that the Veteran has not yet submitted a VA form 21-8940, on remand, the RO should undertake additional development, to include obtaining a VA Form 21-8940, and the Veteran’s income information for all tax years since he was unable to work full-time. The matters are REMANDED for the following action: 1. Obtain VA treatment records from June 2019 to present. All reasonable attempts should be made to obtain any identified records. 2. The Veteran should be afforded the opportunity to submit any outstanding private treatment records from his primary care provider, Dr. A.F., urologist, Dr. R.K., and ophthalmologist, Dr. F.T. Instruct the Veteran to provide those records or in the alternative, provide a release so that VA can attempt to obtain those records. 3. Clarify with the Veteran the name of the mental health facility in Texarkana where he received treatment for his PTSD. If he identifies a VA Medical Center, upload all relevant mental health records to the claims file. If the Veteran identifies a private facility, the Veteran should be afforded the opportunity to submit any outstanding private treatment records for treatment of his PTSD. Instruct the Veteran to provide those records or in the alternative, provide a release so that VA can attempt to obtain those records. 4. Provide a VA Form 21-8940 to the Veteran and ask him to provide information regarding from 2011 forward. Ask the Veteran to provide IRS tax returns from 2011 through 2019 and a statement that the copy is an exact duplicate of the return filed with the IRS. Provide the Veteran with an IRS Form 4506-T “Request for Transcript of Tax Return” which may also be found at https://www.irs.gov/pub/irs-pdf/f4506t.pdf so that the Veteran may request tax returns from 2011 thru 2019 and submit them to VA. Tell the Veteran that if he does not have copies of his tax returns for the requested years, he may use the IRS form cited to above. 5. Schedule the Veteran for a VA examination to assess the severity of his service-connected left knee disability. The record, including a copy of this remand, must be made available to the examiner, and the examination report should include discussion of the Veteran's documented medical history and assertions. All indicated tests and studies should be accomplished (with all findings made available to the requesting examiner prior to the completion of his or her report), and all clinical findings should be reported in detail. The examiner must provide all examination findings, along with a complete rationale for the conclusions reached. Specifically, the Veteran's left knee should be tested for pain in both weight-bearing and non-weight-bearing positions, and on both active and passive motion. If this cannot be performed, the examiner should explain why. The examiner should record the range of motion of the left knee observed on clinical evaluation in terms of degrees in weight-bearing, non-weight-bearing, passive and action motion. If there is evidence of pain on motion, the examiner should indicate the degree of range of motion at which such pain begins, as well as whether such pain on movement results in any loss of range of motion. If feasible, the VA examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. If the Veteran reports flare-ups, the examiner should ask him to report or demonstrate his range of motion during the flare-ups. The VA examiner should also express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The VA examiner should assess the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss. If the VA examiner is unable to report the degree of additional range of motion loss during repeated use and flare-ups, the VA examiner must explain why it is not feasible to render such an opinion. In other words, the VA examiner should opine as to any resultant loss in range of motion that would occur during repeated use and flare-ups or explain why it is not feasible to render such an opinion. If the Veteran endorses experiencing them, the examiner must obtain information regarding the frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups. Then, if the examination is not being conducted during a flare-up, the examiner should provide an opinion based on estimates derived from the information above as to the additional loss of range of motion that may be present during a flare-up. If the examiner cannot provide an opinion as to additional loss of motion during repeated use and flare-ups without resorting to mere speculation, the examiner must make clear that s/he has considered all procurable data (i.e., the information regarding frequency, duration, characteristics, severity, and/or functional loss related to such flare-ups elicited from the Veteran), but any member of the medical community at large could not provide such an opinion without resorting to speculation. All opinions or findings provided must include an explanation for the bases for the opinion. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and specifically explain why an opinion cannot be provided without resort to speculation. 6. After obtaining all outstanding records, the Veteran should be scheduled for an appropriate VA examination to determine the current nature and severity of his service-connected PTSD. The entire record, to include a copy of this Remand, must be made available to and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examiner should identify the nature and severity of all current manifestations of his service-connected PTSD, as well as the impact that such has on his social and occupational functioning. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.