Citation Nr: 20021335 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 13-18 136 DATE: March 25, 2020 ORDER The petition to reopen the previously denied claim for entitlement to service connection for a left ear hearing loss disability is granted. Entitlement to an earlier effective date prior to September 27, 2011 for the grant of service connection for fractured jaw is denied. Entitlement to a 10 percent rating for a fractured jaw disability is granted. Entitlement to a compensable rating for residuals of fracture of left zygomatic arch with a patch of hypesthesia on the left cheek is denied. REMANDED Entitlement to service connection for a right wrist fracture disability is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for a growth behind the left ear with residual scar is remanded. Entitlement to service connection for a left ear hearing loss disability is remanded. Entitlement to service connection for glaucoma is remanded. FINDINGS OF FACT 1. The claim for service connection for a left ear hearing loss disability was denied in an August 2008 unappealed decision; subsequently received evidence includes evidence that is not cumulative or redundant and relates to an unestablished fact necessary to reopen the claim. 2. On September 27, 2011, the Veteran filed a VA Form 21-4138 (Statement in Support of Claim) for entitlement to service connection for a fractured jaw. 3. There is no evidence of any informal or formal claims for a fractured jaw, prior to September 27, 2011. 4. The Veteran’s fractured jaw disability is manifested by symptoms of pain on use of jaw; difficulty chewing on his left side; difficulty opening his mouth wide and difficulty speaking clearly. 5. The Veteran’s residuals of fracture of left zygomatic arch with a patch of hypesthesia on the left cheek is manifested by symptoms of abnormal zygoma bone; no evidence of lateral excursion limitation of range of motion; AND interocclusal space edge to incisal edge measuring 60 mm. CONCLUSIONS OF LAW 1. The August 2008 rating decision is final. New and material evidence has been received to reopen the claim of entitlement to service connection for a left ear hearing loss disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. There is no legal entitlement to an effective date, prior to September 27, 2011, for the grant of service connection for a fractured jaw. 38 U.S.C. § 5101, 5110; 38 C.F.R. § 3.400. 3. Resolving doubt in the Veteran’s favor, the criteria for a 10 percent rating, but no higher, for fractured jaw have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.40, 4.45, 4.59, 4.7, 4.150, Diagnostic Code (DC) 9904. 4. The criteria for a compensable rating for residuals of fracture of left zygomatic arch with a patch of hypesthesia on the left cheek have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.40, 4.45, 4.59, 4.7, 4.150, Diagnostic Codes (DC) 9999-9905. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1975 to August 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2012, October 2016 and October 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). In August 2015 and July 2017, the Veteran testified before the undersigned Veterans Law Judge at travel and videoconference Board hearings. Copies of the transcripts have been associated with the Veteran’s electronic claims folder. On his March 2018 VA Form 9 (appealing the claims for an increased rating and earlier effective date for fractured jaw), the Veteran requested a hearing before a member of the Board. In May 2019, the Veteran was notified that his Board hearing was scheduled in June 2019. However, the Veteran failed to appear for the hearing and did not show good cause for his failure to appear. Therefore, the Board finds that there is no pending hearing request. On his July 2018 VA Form 9 (appealing the claim for entitlement to service connection for glaucoma), the Veteran requested a hearing before a member of the Board. However, in a September 2018 correspondence, the Veteran, through his representative, withdrew his July 2018 Board hearing request. Claim to Reopen 1. The petition to reopen the previously denied claim for entitlement to service connection for a left ear hearing loss disability The Board finds that the Veteran has submitted new and material evidence to warrant reopening his previously denied claim for service connection. Generally, a claim which has been denied in an unappealed RO decision or an unappealed Board 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 existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156 (a). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The credibility of this evidence must be presumed, albeit just for the limited purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In a May 1978 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for a hearing loss disability on the basis that the April 1978 VA examiner found that the Veteran had normal hearing. The Veteran was notified of his appeal rights, but did not submit a Notice of Disagreement. Therefore, the May 1978 rating decision is final. In an August 2008 rating decision, the RO denied the Veteran’s claim due to lack of submission of new and material evidence. The Veteran was notified of his appeal rights, but did not submit a Notice of Disagreement. Therefore, the August 2008 rating decision is final. Since the previous denials, a February 2012 VA treatment note indicated that the Veteran suffered from a hearing loss disability. Also, in a September 2017 correspondence from Dr. F.G., he opined that the Veteran’s left ear hearing loss disability was related to service. As this evidence had not been previously reviewed by agency makers, the Board finds that it is new evidence under 38 C.F.R. § 3.156 (a). Moreover, the Board finds that the evidence is not only new but also material. It relates to unestablished facts necessary to substantiate the claim and also raises a reasonable possibility of substantiating the claim. In that regard, the new evidence shows that the Veteran has a hearing loss disability which may be related to service – the absence of the fact which was the basis for the previous denial. Accordingly, the Veteran’s claim for service connection for a left ear hearing loss disability is reopened. Effective Date 2. Entitlement to an earlier effective date for the grant of service connection for fractured jaw The Veteran contends, without specificity, that he is entitled to an earlier effective date for the grant of service connection for a fractured jaw. For the reasons explained below, the Board finds that an earlier effective date is not warranted. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. See 38 C.F.R. § 3.400. A “claim” is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1 (p); see also Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). An informal claim is “[a]ny communication or action indicating an intent to apply for one or more benefits.” It must “identify the benefit sought.” 38 C.F.R. § 3.155 (a). VA must look to all communications from a claimant that may be interpreted as applications or claims, formal and informal, for benefits and is required to identify and act on informal claims for benefits. Servello, supra. A claim is a written communication requesting a determination of, or evidencing a belief in, entitlement to benefits. 38 C.F.R. § 3.1 (p). A formal claim is the use of the appropriate designated VA form to seek specific benefits. 38 C.F.R. § 3.151 (a). An informal claim is a communication conveying an intent to seek specific benefits. 38 C.F.R. § 3.155 (a). Upon receipt, a formal claim form is forwarded to the claimant. Id. Receipt of it within one year from the date it was forwarded preserves the date of the informal claim as the date of receipt of the claim. Id.; Jernigan v. Shinseki, 25 Vet. App. 220 (2012). Here, on September 27, 2011, the Veteran filed a VA Form 21-4138 (Statement in Support of Claim) and claimed entitlement to service connection for a fractured jaw. The Board finds that there were no informal or formal claims for the claim of entitlement to service connection for a fractured jaw until September 27, 2011. In light of the facts above, there is no basis on which an earlier effective date may be assigned. Based on the Veteran’s claim in September 2011, the Board finds that the proper effective date is September 27, 2011. See 38 C.F.R. § 3.155 (a). Increased Rating 3. Entitlement to a compensable rating for fractured jaw AND residuals of fracture of left zygomatic arch with a patch of hypesthesia on the left cheek The Veteran contends that he is entitled to a compensable rating for a fractured jaw and left zygomatic arch because he has limitation of his jaw function. For the reasons explained below, the Board finds that a 10 percent rating, but no higher, is warranted for a fractured jaw disability. The Board further finds that a compensable rating is not warranted for left zygomatic arch with a patch of hypesthesia on the left cheek. The Veteran’s left zygomatic arch with a patch of hypesthesia on the left cheek has historically been rated as noncompensable under DC 9999-9905. See 38 C.F.R. § 4.27 (hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned). An unlisted disease, injury, or residual condition is rated by analogy with the first two digits selected from that part of the schedule most closely identifying the part, or system, of the body involved; the last 2 digits will be “99” for all unlisted conditions. Id. The Veteran’s fractured jaw disability is rated under DC 9904. Effective September 10, 2017, regulations regarding DCs 9904 and 9905 were revised. See 82 Fed. Reg. 36080, 36,083 (August 3, 2017). Where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary did so. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). However, when an increase is warranted based solely on the revised criteria, the effective date for the increase cannot be earlier than the effective date of the revised criteria. See 38 U.S.C. § 5110 (g); VAOGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Under DC 9904 prior to September 10, 2017, a noncompensable rating is warranted for slight displacement of the mandible; a rating of 10 percent for moderate displacement; and a rating of 20 percent for severe displacement. A Note to Diagnostic Code 9904 stated that the rating is dependent upon degree of motion and relative loss of masticatory function. Under DC 9904 beginning September 10, 2017, a noncompensable rating is warranted for displacement, not causing anterior or posterior open bite. A 10 percent rating is warranted for displacement, causing moderate anterior or posterior open bite. A 20 percent rating is warranted for displacement, causing severe anterior or posterior open bite. Under DC 9905 beginning September 10, 2017, for temporomandibular disorder (TMD), interincisal range of 0 to 10 mm of maximum unassisted vertical opening; with dietary restrictions to all mechanically altered foods warrants a 50 percent rating; without dietary restrictions to mechanically altered foods warrants 40 percent. Interincisal range of 11 to 20 mm of maximum unassisted vertical opening: with dietary restrictions to all mechanically altered foods warrants 40 percent; without dietary restrictions to mechanically altered foods warrants 30 percent Interincisal range of 21 to 29 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants 40 percent; with dietary restrictions to soft and semi-solid foods warrants 30 percent; without dietary restrictions to mechanically altered foods warrants 20 percent. Interincisal range of 30 to 34 mm of maximum unassisted vertical opening: with dietary restrictions to full liquid and pureed foods warrants 30 percent; with dietary restrictions to soft and semi-solid foods warrants 20 percent; without dietary restrictions to mechanically altered foods warrants 10 percent. Lateral excursion range of motion of 0 to 4 mm warrants 10 percent. 38 C.F.R. § 4.150. The Board notes that the Veteran has not been notified as to the changed regulations, and the RO has not adjudicated the Veteran’s claim under these new regulations. As any changes to DC 9904 and DC 9905 represent only a clarification of the rating language with no substantive changes that impact the Veteran’s ratings, the Board does not find that the Veteran is prejudiced by the Board proceeding with a decision in this case. The Veteran was afforded a VA bones examination in December 2011 where he reported that he chews hard food on the right side of his mouth and experiences pain of about a 5 on a 10-point scale with slight numbness over area of the cheek when attempting to chew hard food on the left side of his mouth. The examiner noted that there was no evidence of tenderness over area of the old fracture. The interocclusal space edge to incisal edge measured 60 mm. “This is normal without limitation of motion of jaw.” The examiner noted that the Veteran’s pain on the left jaw when chewing hard foot indicated a dental and not zygomatic arch problem. The Veteran was afforded a VA oral and dental conditions examination in November 2017 where he reported that he injured his zygoma and mandible during service after being punched in the face. The examiner noted that the Veteran’s mandibular range of motion appeared to be within normal limits. The examiner also noted that the Veteran had anatomical loss of the mandible or bony injury of the mandible, but no loss of any part of the mandible or mandibular ramus. In September 2019, an Exam Scheduling request indicates that the Veteran reported that there was no way he could make it to San Antonio for his oral VA examination. A follow up C&P exam scheduling indicates that the particular facility did not have the capacity for dental exams and recommended that the request be sent somewhere else. An October 2019 Exam scheduling request indicated that the VA examination was cancelled at the Veteran’s request. Based on the foregoing, the Board finds that the Veteran is not entitled to a compensable rating under DC 9904, 9905 or any other rating for dental and oral conditions. In that regard, the Board finds the December 2011 and November 2017 VA examinations probative regarding the current severity of the Veteran’s mandible disability. The examiners considered the Veteran’s lay statements and conducted a physical examination of the Veteran’s jaw. There was no evidence of malunion of the mandible under DC 9904. There was no evidence of limited motion of the temporomandibular articulation (measured more than 50mm of inter-incisal range) to qualify for a rating under DC 9905. There was no evidence of nonunion of the mandible under DC 9903. However, the Board has considered whether factors such as functional impairment and pain addressed under 38 C.F.R. §§ 4. 10, 4.40, and 4.45 would warrant a higher rating for the Veteran’s jaw disability during the rating period under consideration. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Here, the Board credits the Veteran’s statements he experiences pain in his jaw when chewing hard food and when pressure is put on that side of his face. The Board has afforded the Veteran the benefit of the doubt that he experiences a painful joint which would entitle him to the minimal compensable rating for that joint. A 10 percent rating under DC 9904 is the minimum compensable rating. Therefore, the Board finds that the Veteran is entitled to a 10 percent rating, but no higher, for his residuals of bilateral fracture of the mandible due to subjective evidence of painful joints under 38 C.F.R. §§ 4.40, 4.45, 4.59. That being said, a rating higher than 10 percent is not warranted at any time during the period on appeal. The evidence reflects that while the Veteran has competently and credibly reported painful locking of his jaw, he does not contend, and the evidence of record does not suggest, that it has resulted in additional limitation of motion that more nearly approximates severe displacement or displacement, causing severe anterior or posterior open bite (required for a 20 percent rating). Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. The Board notes that the Veteran is rated for fracture of the left zygomatic arch and a fractured jaw. He has referred to his symptoms of pain while chewing hard food and pain when pressure is applied to both disabilities. However, the Board may not award ratings for both disabilities if the Veteran’s symptoms have been attributed to both. The Board has awarded a compensable rating for the Veteran’s fractured jaw rather than the fracture of left zygomatic arch because the medical evidence suggests that the pain is associated with the jaw (lower down on the face) more than the zygomatic arch (cheek bone, above the actual jaw line). The evidence is thus at least evenly balanced as to whether the Veteran’s residuals of fractured jaw symptomatology more nearly approximates that contemplated by a 10 percent rating under DC 9904. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, a 10 percent rating, but not higher, for the Veteran’s fractured jaw is granted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to service connection for a right wrist fracture disability and back disability The Veteran contends that he is entitled to a right wrist fracture disability and a back disability because he injured them both when he slipped on a sheet of ice on stairs while stationed in Japan. See September 2011 VA Form 21-4138. In November 2017, the Board remanded the matters to obtain VA examinations regarding the etiology of the Veteran’s claimed wrist and back disabilities. The Veteran was afforded VA wrist and back examinations in September 2019. However, the RO has not issued a Supplemental Statement of the Case (SSOC) following the development, as directed by the Board’s remand. The AOJ failed to comply with the Board’s remand in this regard. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a Board remand “confers on the veteran or other claimant, as a matter of law, the right to compliance with the remand orders”). Therefore, the Board finds that a remand is required to permit the issuance of a SSOC. 2. Entitlement to service connection for a growth behind the left ear with residual scar The Veteran contends that he is entitled to service connection for a growth behind his left ear because he noticed a growth behind his left ear before leaving service. See August 2015 Board Hearing Transcript, p. 14. The Veteran was afforded a VA examination in October 2011 where he reported having a cyst drained while in prison in Bartlett, Texas in 2009. The examiner opined that the Veteran’s residual scar behind the left ear was less likely than not related to service. The examiner noted that the Veteran mentioned a lump on the left ear at separation. However, there was more than 30 years post discharge without evidence or treatment. “He does have a scar from cyst removal in 2011. There is no evidence that the cyst which was removed here at Temple VA is related to the lump on the left ear reported in service.” The Board finds that a remand is necessary to obtain missing private treatment records and to obtain an addendum medical opinion. In that regard, there are no records from the Veteran’s cyst draining that occurred while he was imprisoned. There are also no records of any attempts to obtain those records. Further, the VA examiner does not adequately explain why there is no nexus between the Veteran’s complaints of a lump in service and the subsequent removal of a cyst post-service. 3. Entitlement to service connection for a left ear hearing loss disability The Veteran contends that he is entitled to a left ear hearing loss disability due to his history of in-service noise exposure and in-service injury to the left side of his head. In a September 2017 correspondence, Dr. F.G., an orthopedic surgeon, opined that the Veteran’s left ear hearing loss disability was related to service. No rationale was provided. The Board does not assign any probative value to this statement. First, Dr. F.G. does not indicate that he performed appropriate audiological testing on the Veteran before forming his opinion. Second, it is unclear how an orthopedic surgeon is competent to provide a competent opinion regarding the etiology of a sensorineural hearing loss disability. Third, Dr. F.G. did not provide any rationale or explanation for his conclusion. The Veteran has not been afforded a VA examination regarding the etiology of his left ear hearing loss disability. However, there is evidence that he has a current disability; an in-service injury to the left side of the head and insufficient medical evidence as to whether the two are related. Therefore, the Board finds that a remand is necessary to obtain a VA medical opinion regarding the etiology of the Veteran’s left ear hearing loss disability. See McLendon v. Nicholson, 20 Vet. App. 79 (2006)(VA’s duty to assist includes obtaining a medical opinion where there is evidence of a possible connection between the Veteran’s claimed disability and service). 4. Entitlement to service connection for glaucoma The Veteran contends, without specificity, that he is entitled to service connection for glaucoma. Private treatment records from Austin Retina Associates indicate that in 2010 the Veteran was noted to be glaucoma suspect and have cataracts. The Veteran was afforded a VA eye conditions examination in June 2018 where the examiner noted that the Veteran had diagnoses of bilateral dermatochalasis, cataracts and glaucoma suspect. The Veteran reported that he did not recall ever being diagnosed with glaucoma. The examiner found that the Veteran did not have a diagnosis of glaucoma. “Additional testing is required to determine if [the Veteran] has glaucoma which is damaging his optic nerves and could potentially be affecting his peripheral vision.” The examiner opined that it was less likely than not that the Veteran’s claimed glaucoma was related to service. The examiner reasoned, “[w]hile there is no diagnosis for ‘glaucoma, simple, primary, noncongestive,’ [the Veteran] is a glaucoma suspect bilaterally. The signs are greater on the left than the right and blunt trauma (like the Veteran received in service) increases likelihood of glaucoma suspect.” Based on the foregoing, the Board finds that a remand is necessary to obtain an addendum medical opinion regarding the etiology of the Veteran’s claimed glaucoma. In that regard, the June 2018 examiner stated that additional testing was required to determine whether the Veteran currently has glaucoma. It is unclear as to why further testing was not conducted to make that determination. Therefore, the Board finds that a remand is necessary to obtain further clarification of whether further testing is warranted, and if so, schedule the Veteran for another VA examination. There is evidence that the Veteran receives regular treatment at a VA facility. Therefore, on remand, up to date VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he provide a medical records release form in order for VA to attempt to obtain his complete prison medical treatment records from his time of incarceration. See October 2011 VA examination report where the Veteran reported having a cyst drained while in prison in Bartlett, Texas. A copy of any request(s) sent to the Veteran, and any reply, to include a completed medical records release form, should be associated with the claims file. 2. Obtain and associate with the electronic claims folder, up to date VA treatment records. 3. Then, obtain an addendum opinion from the October 2011 VA examiner (or an appropriate medical professional) regarding the etiology of the Veteran’s residual scar from cyst removal. The Veteran’s electronic claims folder, including a copy of this remand must be available to the examiner. The examiner is requested to provide an opinion as to the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s residual scar from cyst removal was incurred in or is otherwise related to service. The examiner’s attention is directed to the Veteran’s report of a cyst removal while imprisoned in 2009. The Board notes that the rationale for an examiner’s opinion must not be based solely on the absence of treatment records during and after service. See Dalton v. Nicholson, 21 Vet. App. 23 (2007)(an examination must consider lay evidence of in-service incurrence or continuity of symptomatology since service). A complete rationale for all opinions reached must be provided. 4. Schedule the Veteran for a VA examination to determine the etiology of left ear hearing loss disability. The Veteran’s electronic claims file, including a copy of this remand, must be made available to the examiner for review in connection with the opinion. The examiner is asked to offer an opinion as to the following: Whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s left ear hearing loss was incurred in or is otherwise related to service. The examiner’s attention is directed to a February 2012 VA audiological consultation note which found that the Veteran had normal to moderate sensorineural hearing loss of the left ear. In rendering the above opinion, the examiner is advised that the absence of in-service evidence of a hearing disability during service is not always fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). A complete rationale for all opinions reached must be provided. 5. Obtain an addendum medical opinion from the July 2018 VA examiner (or appropriate medical professional). The Veteran’s electronic claims folder, including a copy of this remand, must be made available to the examiner. If, and only if, determined necessary by the reviewing clinician, the Veteran should be scheduled for another VA examination. Whether it is at least as likely as not (50 percent probability or greater) that the Veteran has a diagnosis of glaucoma. The July 2018 examination report indicated that, “Additional testing is required to determine if [the Veteran] has glaucoma which is damaging his optic nerves and could potentially be affecting his peripheral vision.” However, no additional testing appears to have been conducted. A February 2010 treatment record from Austin Retina Associates indicates that the Veteran had a diagnoses of glaucoma suspect. If so, opine whether it is at least as likely as not (50 percent probability or greater) that the Veteran’s glaucoma is related to service, to include due to any trauma to the eye. A complete rationale for all opinions reached must be provided. 6. Issue a Supplemental Statement of the Case (SSOC) pertaining to the issues remanded in the November 2017 Board remand which addresses all evidence associated with the claims file pursuant to the remand (including the September 2019 VA examinations for the wrist and back disabilities). The Veteran should be afforded the applicable time period to respond. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Baskerville 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.