Citation Nr: 20028818 Decision Date: 04/24/20 Archive Date: 04/24/20 DOCKET NO. 16-40 851 DATE: April 24, 2020 ORDER Entitlement to a rating greater than 30 percent for intervertebral disc syndrome (IVDS) is denied. Entitlement to a rating greater than 20 percent for sciatic radiculopathy, left lower extremity (LLE), prior to October 30, 2014, is denied. Entitlement to a rating greater than 40 percent for sciatic radiculopathy, LLE, beginning October 30, 2014, is denied. Entitlement to a rating greater than 20 percent for the period prior to March 4, 2011, for sciatic radiculopathy, RLE, is denied. Entitlement to a 40 percent rating, for the period from March 4, 2011 to October 30, 2014, for sciatic radiculopathy, RLE, is granted. Entitlement to a rating greater than 40 percent for sciatic radiculopathy, RLE, for the period beginning on October 30, 2014, is denied. Entitlement to a rating greater than 10 percent for femoral radiculopathy, LLE, is denied. Entitlement to a rating greater than 10 percent for femoral radiculopathy, RLE, is denied. Entitlement to a rating greater than 30 percent for right total knee replacement, status post arthroscopic partial meniscectomy, is denied. Entitlement to a total disability rating based upon individual unemployability (TDIU) for the period prior to July 1, 2013, is denied. Entitlement to TDIU for the period from July 1, 2013 to October 30, 2014, is granted. Entitlement to TDIU for the period beginning on October 30, 2014, is dismissed. FINDINGS OF FACT 1. The Veteran’s IVDS manifested with pain on movement and forward flexion limited to 30 degrees; but no additional functional loss, incapacitating episodes, or ankylosis of the spine. 2. Prior to October 30, 2014, the Veteran’s sciatic radiculopathy, LLE, was productive of moderate incomplete paralysis or impairment; but not moderately severe, or severe incomplete paralysis, or complete paralysis of the sciatic nerve. 3. Beginning October 30, 2014, the Veteran’s sciatic radiculopathy, LLE, was productive of moderately severe incomplete paralysis or impairment; but not severe incomplete paralysis or complete paralysis of the sciatic nerve. 4. Prior to March 4, 2011, the Veteran’s sciatic radiculopathy of the RLE was productive of moderate incomplete paralysis or impairment; but not moderately severe or severe incomplete paralysis or complete paralysis of the sciatic nerve. 5. Beginning March 4, 2011, the Veteran’s sciatic radiculopathy, RLE, was productive of moderately severe incomplete paralysis or impairment; but not severe incomplete paralysis or complete paralysis of the sciatic nerve. 6. The Veteran’s femoral radiculopathy, LLE, was productive of a disability that more nearly approximated mild incomplete paralysis of the quadriceps extensor muscles, without evidence of complete paralysis of the quadriceps extensor muscles. 7. The Veteran’s femoral radiculopathy, RLE, was productive of a disability that more nearly approximated mild incomplete paralysis of the quadriceps extensor muscles, without evidence of complete paralysis of the quadriceps extensor muscles. 8. Any instability in the Veteran’s right knee has been considered and compensated under his rating for residuals of total right knee replacement. 9. Beginning June 1, 2013, the Veteran’s right knee prosthesis manifested with slight instability, small effusion, pain, and limitation of extension no worse than twenty degrees of extension; but no ankylosis or chronic residuals consisting of severe painful motion or weakness in the affected extremity. 10. The Veteran was gainfully employed until July 1, 2013. 11. The Veteran has been in receipt of a total schedular rating from October 30, 2014, to present, and is not unemployable due to any one service-connected disability during this time. 12. The Veteran’s service-connected disabilities, in combination, preclude the Veteran from securing and following gainful employment for the period from July 1, 2013, to October 30, 2014. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 30 percent, for IVDS, have not been met. 38 U.S.C. §§ 1155, 5107, 5107 (b); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5237, 5243 (2018). 2. Prior to October 30, 2014, the criteria for a rating greater than 20 percent for LLE sciatic radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2018). 3. From October 30, 2014, the criteria for a rating greater than 40 percent for LLE sciatic radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2018). 4. For the period prior to March 4, 2011, the criteria for a rating greater than 20 percent for RLE sciatic radiculopathy, have not been met. 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2018). 5. From March 4, 2011, to October 30, 2014, the criteria for a 40 percent rating, but no higher, for RLE sciatic radiculopathy, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2018). 6. The criteria for a rating greater than 40 percent for RLE sciatic radiculopathy have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.71a, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2018). 7. The criteria for a rating greater than 10 percent for RLE femoral radiculopathy have not been met. 38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.59, 4.124a, Diagnostic Code 8526 (2018). 8. The criteria for a rating greater than 10 percent for LLE femoral radiculopathy have not been met. 38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.7, 4.14, 4.59, 4.124a, Diagnostic Code 8526 (2018). 9. The criteria for a separate rating for right knee instability are not met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2018). 10. From June 1, 2013, the criteria for the assignment of a disability rating in excess of 30 percent for total right knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5055 (2018). 11. The criteria for TDIU for the period prior to July 1, 2013, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2018). 12. The criteria for TDIU for the period from July 1, 2013 to October 30, 2014, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2018). 13. The claim for TDIU for the period from October 30, 2014, is moot. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1975 to April 1979. These matters come before the Board of Veterans’ Appeals (Board) on appeal from August 2009 and February 2015 rating decisions issued by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). The Veteran testified before a Veteran’s Law Judge in October 2014 and a transcript of the hearing has been associated with the claims folder. In August 2019, the Veteran was offered the opportunity to have another hearing since the judge who conducted his October 2014 hearing was no longer employed by the Board. However, the Veteran waived his right to a new hearing in a September 2019 written correspondence. In the December 2015 decision, the Board remanded the Veteran’s claims for further development. The Board finds that remand directives have been substantially complied with and adjudication of the claims may proceed. With regard to the Veteran’s claim concerning an increased rating for his service-connected right knee disability, this matter was adjudicated in the Board’s November 2018 decision. Specifically, the Board granted a temporary total rating to 100 percent from August 1, 2010 to May 16, 2011; a 30 percent rating beginning May 17, 2011; and the Board denied entitlement to a rating in excess of 30 percent beginning June 1, 2013. However, the Veteran appealed the Board’s decision with regard to the denial of a rating in excess of 30 percent beginning June 1, 2013 contending that the Board failed to consider whether a separate rating was warranted for right knee instability under Diagnostic Code 5257. As such, the parties entered into a Joint Motion for Partial Remand in July 2019 and the appeal has been returned to the Board for readjudication. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his disabilities on appeal have been more severe than at others, and rate them accordingly. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). VA must address the evidence concerning the state of the disability from the time period of one year before the claim for an increase was filed until VA makes a final decision on the claim. In the instant case, the Veteran filed his claim for an increased rating for IVDS on August 21, 2008. In this regard, the Board notes that in an October 2018 VA Memo, it was determined that the Veteran’s August 21, 2008 claim form and September 22, 2009 Notice of Disagreement (NOD) could not be located; however, other evidence of record verifies the validity of these dates. Therefore, the period under consideration for the Veteran’s claim for an increased rating for his IVDS begins on August 21, 2007. 1. Entitlement to a rating greater than 30 percent for IVDS. The Veteran’s IVDS has been rated as 30 percent disabling for the entire appeal period pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5237 and 5243. Diagnostic Codes 5237 and 5243 provide that intervertebral disc syndrome (preoperatively or postoperatively) is evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A rating of 40 percent is awarded for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is from 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are from 0 to 30 degrees. 38 C.F.R. § 4.71a, Note 2 and Plate V. With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months, a 20 percent rating is warranted. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent rating is warranted. With incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. Note (1): An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. When rating musculoskeletal disabilities based on limitation of motion, a higher rating must be considered where the evidence demonstrates additional functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). The rule against pyramiding does not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including use during flare-ups. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. 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. Therefore, painful motion should be considered to determine whether a higher rating is warranted on that basis, whether or not arthritis is present. Burton v. Shinseki, 25 Vet. App. 1 (2011). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by a Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Factual background A review of the evidence shows that the Veteran received a VA examination for his IVDS in January 2009 where he reported injuring his back in the military and that it has progressed over the years. The Veteran reported stiffness, numbness, and constant pain in the lumbar area. He reported having pain that travels down his buttocks and legs, and that he has no loss of bladder or bowel control. The Veteran reported that he can function with medication, but that he has painful back spasms where he is not functional for a period of time. He indicated he has treatment of three epidural cortisone injections at two weeks apart. Range of motion (ROM) findings showed flexion limited to 45 degrees, with no further limitation of motion due to pain. Extension, right and left lateral flexion, and right and left lateral rotation were each limited to 15 degrees, with no further limitation due to pain. The Veteran had a combined range of motion of 120 degrees. The examiner noted that the joint function of the spine is additionally limited by pain after repetitive use, but is not limited by fatigue, weakness, lack of endurance, or incoordination; nor is there an additional limitation in degree. The examiner found no evidence of ankylosis, muscle spasm, tenderness, or bowel, bladder, or erectile dysfunction; however, the examiner found positive straight leg testing bilaterally, and sensory deficits of the bilateral back of thighs affecting the sciatic nerve. The examiner diagnosed the Veteran with degenerative disc disease (DDD) with degenerative joint disease (DJD), and lumbar spine with IVDS of the lumbar spine with sciatic nerve affected. The examiner noted that this was a progression of the previous diagnosis of IVDS of the lumbar spine. In his January 2015 VA back examination, the Veteran reported having daily and chronic back pain with reduced ROM and function. He reported having painful flare-ups in June and December and noted that he could hardly move. He further reported functional impairment in that he has an issue reaching for things overhead, bending over, and that repetitive motion is very painful. Range of motion showed forward flexion limited to 40 degrees; extension was limited to 5 degrees; right and left lateral flexion were each limited to 8 degrees, and right and left lateral rotation were each limited to 15 degrees. The Veteran had a combined range of motion of 91 degrees. The examiner noted pain with weightbearing, pain with all ranges of motion, and that pain caused functional loss, but there was no pain or tenderness to palpation. The Veteran was able to perform repetitive use testing with no loss of function or range of motion. The examiner noted that pain, fatigue, and incoordination limited functional ability with repeated use over time. Straight leg testing was positive, and the Veteran had radicular symptoms of the bilateral lower extremities involving the femoral nerve and sciatic nerves. The examiner noted moderate radicular symptoms of intermittent pain; mild symptoms of paresthesias and/or dysesthesias, and mild numbness; however, the examiner described the severity of the Veteran’s radiculopathy as mild. There was no evidence of muscle atrophy, ankylosis, or other neurologic abnormalities. The examiner found that the Veteran had IVDS but no prescribed bed rest in the past 12 months. The Veteran was diagnosed with degenerative arthritis of the spine, IVDS, spinal stenosis, and lumbar radiculopathy. In a December 2018 Disability Benefits Questionnaire (DBQ) for his back, the Veteran was diagnosed with degenerative arthritis of the spine and IVDS. The Veteran reported that his pain has worsened and that he has pain in the low back that radiates into the buttocks and down the left leg. He reported epidurals in 2007 that did not help and physical therapy with no improvement. His current treatment consists of ibuprofen and cyclobenzaprine for muscle spasms. Range of motion findings showed flexion limited to 30 degrees. Extension and right and left lateral flexion were each limited to 5 degrees. Right and left lateral rotation were each limited to 10 degrees. There was objective evidence of pain or tenderness on palpation, pain with weightbearing, and pain caused functional loss. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion and no additional factors that may cause functional loss. The Veteran had guarding and muscle spasm resulting in abnormal gait or abnormal spinal contour, but no muscle atrophy, and muscle strength testing was normal. Straight leg raising test was positive on the right and negative on the left. The Veteran had radicular symptoms of mild constant pain; severe intermittent pain; moderate paresthesias and/or dysesthesias; and numbness on the right lower extremity, to include the femoral and sciatic nerve. The examiner described the severity of his right lower extremity radiculopathy as moderate while his left lower extremity had no radicular symptoms. The examiner found no evidence of ankylosis, prescribed bedrest due to IVDS, or other neurologic abnormalities. Analysis Based on the above and remaining evidence, the Board finds that a rating greater than 30 percent is not warranted for IVDS. At the outset, the Board notes that in his April 2011 VA Form 9, the Veteran contended that a higher rating was warranted since his 30 percent rating was the result of the RO mistakenly finding that he had a back disability that pre-existed service. However, his contentions are incorrect. Historically, the evidence shows that in the Board’s February 2006 decision, the Veteran was granted service connection for a lumbar spine disability. It was determined that the Veteran’s lumbar spine disability was aggravated by his service-connected left knee disability. Notably, however, when service connection for a disability is granted on the basis that the disability was aggravated by a service-connected disability, a baseline level of severity (prior to aggravation) and the level of severity after aggravation occurred must be determined. Aggravation is established by determining the baseline level of severity of the non-service-connected condition and deducting that baseline level, as well as any increase due to the natural progress of the disease, from the current level. See 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439, 448 (1995). In the Veteran’s case, the RO found that the Veteran’s lumbar spine had a baseline level of severity of 10 percent, and a 40 percent level of severity after aggravation. Thus, his rating was 30 percent, 40 percent less the 10 percent baseline level of severity. In a November 2007 administrative review by the Director of Compensation and Pension Service, it was explained that the Veteran’s 10 percent baseline level of severity was predicated on a May 1995 VA examination which showed normal flexion and extension of the lumbar spine with pain on motion. The Director noted that normal flexion, albeit with pain, reflects a 10 percent rating, although the Veteran was assigned a 20 percent rating. The Veteran’s 40 percent level of severity was based upon subsequent treatment records which showed severe limitation of motion. Notably, the Director explained that the rating schedule for disorders of the spine was revised in 2003. Prior to 2003, a 40 percent disability rating was the maximum schedular rating warranted under former Diagnostic Codes 5292 and 5295 for limitation of motion of the lumbar spine, and for lumbosacral strain with characteristic pain on motion. The amended version of the rating criteria allowed for a 40 percent rating with limitation of motion to 30 degrees or less. A higher rating would be warranted for a showing of ankylosis. The Director concluded that under both rating schedules, the Veteran would be entitled to a 40 percent rating after aggravation for his lumbar spine. Therefore, after deducting the baseline level of severity of 10 percent, the Veteran was assigned a 30 percent rating pursuant to Diagnostic Codes 5237 and 5243. The Veteran was notified of the RO’s decision to assign a 30 percent rating in January 2008 and the Veteran did not appeal the decision; nor was new and material evidence submitted within one year of the notification. Thus, the decision became final. The Board notes that the current appeal is based on an August 2008 increased rating claim for his service-connected IVDS and that the actual claim is not of record. To the extent that the Veteran contends his August 2008 claim was a Notice of Disagreement to the January 2008 decision, the Board still finds the 10 percent baseline level of impairment and 40 percent rating after aggravation were appropriately assigned. Prior to filing his claim of service connection for lumbar spine in January 1997, medical evidence from 1995 indeed shows painful motion of the lumbar spine as outlined in the Director of Compensation and Pension Service narrative. Moreover, the Veteran was in receipt of a 10 percent rating for residuals of the lower thoracic spine which further evidences the pre-existence of a spinal disability. Notably, the 2003 revision to the rating schedule for disorders of the spine rated the thoracic and lumbar spine as a single disability. Therefore, given the medical evidence showing painful motion of the lumbar spine and the already assigned 10 percent rating for residuals of the thoracic spine, the Board finds a baseline rating of 10 percent was warranted. The Board also finds the Veteran was properly evaluated at having a 40 percent rating after aggravation as the evidence showed severe limitation of motion to 30 degrees or less, which warranted a 40 percent rating under the old and revised regulations, but there was no evidence of ankylosis that would have warranted a higher rating. Thus, the Veteran was appropriately assigned a 30 percent rating for service-connected IVDS. With regard to his current claim for an increased rating, the Board finds that a rating greater than 30 percent is not warranted. As explained above, the Veteran is currently evaluated at 40 percent disabling under Diagnostic Codes 5237 and 5243 before reducing his rating by the 10 percent baseline level of severity. The Board notes that under Diagnostic Code 5237, a 40 percent rating requires forward flexion of the lumbar spine 30 degrees or less, while Diagnostic Code 5243 requires incapacitating episodes of at least four weeks in duration but less than six weeks during the past 12 months. A higher rating would require a showing of ankylosis or incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Here, the evidence is absent of any findings of favorable or unfavorable ankylosis or incapacitating episodes. In fact, the Veteran’s January 2009 and January 2015 VA examinations show forward flexion limited to 45 and 40 degrees, respectively, both indicative of a 20 percent rating. Although he met the requirement of 30 degrees for forward flexion in his December 2018 DBQ to warrant a 40 percent rating, the Veteran’s IVDS did not exhibit ankylosis as necessary for a higher rating, nor did the Veteran have any incapacitating episodes. Moreover, although it was noted that pain caused functional loss, the Veteran was able to perform repetitive use testing with no additional loss in function or range of motion and there were no additional factors that caused functional loss. The Board also notes that in his November 2014 hearing, the Veteran testified to having three to four incapacitating episodes; however, his described episodes do not meet the requirements outlined in Diagnostic Code 5243 as necessary for a higher rating. For example, the Veteran testified that his episodes usually last a week or a week and a half. Further, he did not indicate that he was prescribed bedrest; rather, he testified that his doctor advised him to take his medications and to try to rest. He further testified that once he takes his pain pills, he is able to get up and move around. Clearly, the Veteran’s described episodes do not equate to incapacitating episodes that would warrant a higher rating. Aside from these self-reports, there is no other evidence of record that shows the Veteran was prescribed bedrest for his lumbar spine. As noted above, all of the Veteran’s VA examinations showed no evidence of prescribed bedrest and private treatment records show the same. Particularly, in a March 2011 private treatment record it was noted that the Veteran had severe pain with significant findings on examination. The Veteran was diagnosed with herniated disc syndrome and spinal stenosis and was treated with steroids and pain medications. The examiner also noted that previous therapy included steroid injections to the Veteran’s back in 2007 and there was no mention of prescribed bedrest. Although the examiner noted that the Veteran would be referred for possible repeat injections and/or surgical options, he did not indicate the need for bedrest. In an April 2011 follow-up visit, the examiner recommended surgical intervention; however, the examiner did not prescribe bedrest or note any findings of ankylosis. Considering the above and remaining evidence, the Board finds the preponderance of evidence is against the claim and a rating greater than 30 percent is not warranted. Although the evidence shows limitation of motion to 30 degrees, the record is completely absent of favorable or unfavorable ankylosis of the spine or incapacitating episodes of at least six weeks in the past 12 months. Moreover, any functional loss incurred has already been contemplated in the Veteran’s assigned 40 percent rating, reduced by 10 percent for his baseline prior to aggravation, and resulting in the current 30 percent evaluation. Therefore, as the evidence preponderates against the claim, the benefit-of-doubt rule is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, the claim is denied. 2. Entitlement to a rating in excess of 20 percent, prior to October 30, 2014, and in excess of 40 percent thereafter, for RLE sciatic radiculopathy. 3. Entitlement to a rating in excess of 20 percent, prior to October 30, 2014, and in excess of 40 percent thereafter, for LLE sciatic radiculopathy. 4. Entitlement to a rating greater than 10 percent for LLE femoral radiculopathy. 5. Entitlement to a rating greater than 10 percent for RLE femoral radiculopathy. The Veteran contends a higher rating is warranted for his bilateral lower extremity sciatic and femoral nerve radiculopathy. Currently, the Veteran is in receipt of staged ratings for his right and left sciatic radiculopathy rated 20 percent disabling prior to October 30, 2014, and 40 percent thereafter, pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. His bilateral femoral radiculopathy has been assigned a 10 percent rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8526. Diagnostic Code 8526 governs paralysis of the femoral nerve and provides a 10 percent rating for mild incomplete paralysis; a 20 percent rating for moderate incomplete paralysis; and a 30 percent rating for severe incomplete paralysis. See Id. A 40 percent rating is provided for complete paralysis of the quadriceps extensor muscles. Id. Under Diagnostic Code 8520 for sciatic nerve, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. With regard to the merits of the Veteran’s claims, the Board has reviewed the evidence of record and finds that staged ratings are appropriate for the Veteran’s right and left sciatic radiculopathy. With regard to the Veteran’s left sciatic radiculopathy, the Board finds a rating greater than 20 percent is not warranted for the period prior to October 30, 2014, and a rating greater than 40 percent is not warranted thereafter. However, the Veteran is entitled to a 40 percent rating, but no higher, for right sciatic radiculopathy as of March 4, 2011. Additionally, a rating greater than 10 percent is not warranted for right or left femoral nerve radiculopathy at any time during the appeal period. In support of the Board’s conclusion, the Board initially notes that for the period prior to October 30, 2014, the Veteran’s right and left sciatic radiculopathy has been rated as 20 percent disabling, indicative of moderate impairment. As outlined above, in the Veteran’s January 2009 VA examination, the examiner did not specifically indicate whether the Veteran’s radiculopathy was mild, moderate, or otherwise; but merely noted that the Veteran had positive straight leg testing and sensory deficits of the back of thighs affecting the sciatic nerve, bilaterally. Nevertheless, the examiner noted that the Veteran had no bowel, bladder, or erectile dysfunction, and his right and left lower extremities revealed knee and ankle jerks of 2+, which is normal. The Board finds that this evidence suggests no more than moderate degree of radiculopathy. In a March 2011 private treatment record, the examiner noted a positive straight leg raising test bilaterally; however, in an April 2011 follow-up visit, the examiner found a positive straight leg test on the right side only, but negative on the left. A May 2013 VA treatment record also noted that the Veteran had some radicular symptoms; however, there was no indication that his symptoms were any more than moderate in nature. Given the above and remaining evidence, the Board finds that an increased rating is not warranted for left sciatic radiculopathy prior to October 30, 2014 or thereafter as there is no evidence of record that shows the Veteran’s left sciatic radicular symptoms were any greater than moderate in severity. As noted above, his earlier VA examination in January 2009 show sciatic nerve involvement on the left side, but none of the evidence show that his symptoms were greater than moderate in severity. In fact, 2011 private treatment records show negative radicular symptoms on the left, as well as, his December 2018 VA examination. Although his January 2015 VA examination recognized left sciatic radicular symptoms, these were described as mild. Based on these findings, the Board finds an increased rating is not warranted at any time during the appeal period for left sciatic radiculopathy. However, for the Veteran’s right sciatic radiculopathy, there is factually ascertainable evidence that the condition may have worsened earlier than October 30, 2014 when the Veteran was assigned a 40 percent rating. Particularly, the Board notes that in a March 4, 2011 private treatment record, the Veteran was diagnosed with herniated disc syndrome and spinal stenosis after complaining of pain radiating to his right hip, right groin, and down his right leg. The examiner noted that the Veteran had severe pain and significant findings per his exam. In an April 2011 follow-up visit, it was noted that the Veteran’s MRI showed disc herniation at posterior right lateral L4-L5, compressing the exiting the L4 nerve root and descending L5 nerve root. As a result, the examiner recommended a right-sided laminectomy and discectomy at recommended at L3-L4, L4-L5. Given these findings, the Board concludes that this evidence suggests the Veteran’s right sciatic radiculopathy showed evidence of worsening prior to October 30, 2014. As such, the Board finds a 40 percent rating is warranted for right sciatic radiculopathy, effective March 4, 2011. A rating greater than 40 percent is not warranted for the Veteran’s right or left sciatic radiculopathy as there is no evidence of severe incomplete paralysis with marked muscular atrophy or complete paralysis at any time during the appeal period. With regard to the Veteran’s right and left femoral nerves, the Board finds a rating greater than 10 percent is not warranted. The Board notes that radicular symptoms affecting the Veteran’s femoral nerves were first noted in his January 2015 VA examination. As mentioned above, the January 2015 examiner noted mild symptoms of paresthesias and/or dysesthesias and mild numbness bilaterally. Although he also found moderate symptoms of intermittent pain, the examiner described the severity of the Veteran’s bilateral radiculopathy as mild. Furthermore, in his December 2018 peripheral nerves examination, the examiner noted that the Veteran’s femoral nerves were normal bilaterally and that his left leg was currently asymptomatic altogether. The Board notes that there is no other evidence of record showing otherwise or that the Veteran’s femoral radiculopathy was greater than mild in severity. As such, a rating greater than 10 percent is not warranted for the Veteran’s right and left femoral radiculopathy as his symptoms were no more than mild in severity. 6. Entitlement to a rating greater than 30 percent for right total knee replacement s/p arthroscopic partial meniscectomy (right knee disability). As explained previously, the Veteran appealed the Board’s November 2018 decision that denied entitlement to a rating greater than 30 percent for total right knee replacement for the period beginning June 1, 2013. The Veteran also contends a separate rating is warranted for right knee instability under Diagnostic Code 5257. By way of history, the Veteran underwent a total left knee replacement on April 2, 2012. His right knee disability is presently rated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Codes 5099-5055. Generally, hyphenated diagnostic codes are used when an unlisted disability is at issue. See 38 C.F.R. § 4.27. Use of the second diagnostic code helps provide further detail regarding the origins of the unlisted disability, the bodily functions affected, the symptomatology, and anatomical location. Id.; see Tropf v. Nicholson, 20 Vet. App. 317, 321 (2006). Additionally, the diagnostic code following the hyphen is the diagnostic code by which the disability is evaluated. Id. Diagnostic Code 5055 addresses knee replacement (prosthesis). A 60 percent rating requires chronic residuals consisting of severe painful motion or weakness in the affected extremity. Intermediate degrees of residual weakness, pain or limitation of motion are rated by analogy under diagnostic codes 5256, 5261, or 5262. The minimum rating following replacement of a knee joint is 30 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Initially, the Board notes that prior to his total right knee replacement in April 2012, the Veteran was assigned a separate rating for right knee instability; however, in an October 2013 rating decision, the RO recharacterized the Veteran’s disability as right total knee replacement and assigned a 100 percent rating under Diagnostic Code 5055, effective from April 2, 2012 through June 1, 2013, and a 30 percent rating thereafter. In doing so, the RO discontinued the assignment of a separate rating under Diagnostic Code 5257 for instability. Accordingly, a new rating was assigned for total knee replacement, right knee, under Diagnostic Code 5055 effective June 1, 2013. Initially, the Board finds that a rating under Diagnostic Code 5055 encompasses all identifiable residuals of post total knee replacement, including limitation of motion, painful motion, instability, weakness, and functional impairment. As the Court noted in Tedesco v. Wilkie, the Secretary chose to use the term painful motion in the crafting of the rating for Diagnostic Code 5055, thus, encompassing symptomatology considered in the evaluation assigned for this Diagnostic Code other than simply limitation of motion at the 30 percent and 60 percent levels. Tedesco v. Wilkie, 31 Vet. App. 360 (2019). Thus, the Board finds that the rule against pyramiding prohibits compensating twice for the same manifestations, in this case, instability. As the Veteran was service connected for the residuals of a total right knee replacement under Diagnostic Code 5055 during this period on appeal, an increase for a separate rating based on instability under Diagnostic Code 5257 is not available, as any instability present will be considered as part of the evaluation assigned under DC 5055. See Esteban, supra. The Board also finds that an increased rating is not warranted under Diagnostic Code 5055 as the evidence of record does not establish chronic residuals consisting of severe painful motion or weakness in the right knee. In his September 2013 VA knee examination, the Veteran reported having total knee replacement but noted the condition has stayed the same. Range of motion showed right knee flexion limited to 95 degrees, with painful motion beginning at 85 degrees. Extension was limited to 5 degrees, with painful motion beginning at 10 degrees. The Veteran was able to perform repetitive use testing with no change in ROM. The examiner noted functional loss due to less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, instability of station, and disturbance of locomotion which caused additional limitation in ROM of 10 to 15 degrees. Muscle strength testing was a 4 out of 5, and x-rays showed a small supra-patella effusion of the right knee. There was tenderness or pain on palpation; and anterior, posterior, and medial-lateral instability of right knee, but no subluxation. In his November 2018 knee examination, the Veteran reported the pain is worse. He reported no flareups but indicated functional loss of being unable to do any recreational activities and limited yard work. Range of motion showed forward flexion limited to 90 degrees and extension limited to 0 degrees. There was pain on flexion, pain with weightbearing, pain or tenderness on palpation, and pain caused functional loss. The Veteran could perform repetitive use testing with no loss in function or range of motion, and there was no functional loss due to pain, fatigue, weakness, incoordination, or lack of endurance; however, the examiner noted other factors of swelling, disturbance of locomotion, and interference with standing. There was no muscle atrophy, no ankylosis, no subluxation, instability, or effusion. Based on the above and remaining evidence, the Board finds a rating greater than 30 percent is not warranted. Here, the Veteran showed no ankylosis, and limitation of motion to 95 degrees flexion and 5 degrees extension in his September 2013 VA examination. While the examiner found further limitation of ROM of 10 to 15 degrees due to functional loss, this decrease correlated to a noncompensable rating for flexion and a 20 to 30 percent rating for extension under corresponding Diagnostic Codes 5261 and 5262, which is no more than his current 30 percent rating, thus, he does not meet the intermediate levels for compensation under DC 5055 based on these findings, and during his November 2018 examination, his range of motion was even higher, so an increase on this basis is not available, and separately compensating him for this limitation of motion due to pain and functional loss would constitute impermissible pyramiding as it would compensate him for the same symptoms twice. A 60 percent rating requires chronic residuals consisting of severe painful motion or weakness in the affected extremity. As the Court has stated, painful motion is not the same as limited motion, but rather requires consideration of more than just whether there is compensable limitation of motion. See Tedesco, supra. In the present case, considering the Veteran’s overall painful symptoms, the Board does not find that they rise to the level of “severe” painful symptoms or weakness. Although the September 2013 examiner found evidence of instability, the instability measured 0-5 millimeters which is indicative of slight or mild instability, with no subluxation, and at the November 2018 examination, no instability of the right knee was found and none reported by the Veteran. Additionally, at neither examination was there atrophy or muscle strength testing less then 4 out of 5. As for other indicators of painful motion, the Board acknowledges the 2013 examiners report of functional loss caused by less movement than normal, weakened movement, excess fatigability, incoordination, pain, interference with sitting, standing and weight bearing, as well as disturbance of locomotion, but notes that overall for the appeal period, his symptoms were not severe, and even these symptoms did not cause severe impairment when considered with the rest of the examination which showed only mild instability, strength testing of 4 out of 5, no atrophy, no flare-ups, loss of only 10-15 degrees of motion as a result of functional loss, and no use of an assistive device. The Board also notes that while the Veteran reported in his November 2018 VA examination that his pain was worse, and he was noted to have disturbance of locomotion, interference with sitting and standing, and some swelling, the Veteran could perform repetitive use testing with no loss in function or range of motion, and there was no functional loss due to pain, fatigue, weakness, incoordination, or lack of endurance and he denied flare ups. Further, treatment records for the appeal period show only occasional complaints of pain after his surgery. For example, a May 2013 medical visit shows that the Veteran reported that his knees flare with bad weather and if he “over-does it;” however, the examiner noted that there were no acute issues on that day. An October 2014 primary care visit showed the Veteran complained of “popping in his knee;” however, the Veteran did not specify whether it was his right or left knee nor was further treatment indicated. Additionally, a subsequent June 2015 primary care note indicated that the Veteran has “some radicular pain down legs at times; but otherwise doing well,” and the Board notes that the Veteran is separately compensated for his radicular pain. The examiner also noted that the Veteran had no other significant changes. Taken as a whole, the Board finds that the evidence of the Veteran’s disability picture does not demonstrate severe painful motion or weakness during the appeal period. Rather, his symptoms are compensate for in the assigned 30 percent evaluation. For these reasons, the Board finds the preponderance of evidence is against the claim; thus, the benefit-of-doubt doctrine is inapplicable. Accordingly, the claim for a rating greater than 30 percent for right knee disability is denied. 7. Entitlement to TDIU. A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58 (2019) the Court clarified that substantially gainful employment contains economic and noneconomic components. The Court provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment, noting that attention must be given to: the veteran’s occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. Ray v. Wilkie, 31 Vet. App. at 73. In a February 2015 rating decision, the RO found that the issue of TDIU was moot since the Veteran was found to be permanently and totally disabled as a result of his service-connected disabilities as of October 30, 2014. However, a combined 100 percent disability rating on a schedular basis does not always render the issue of TDIU moot. See Bradley v. Peake, 22 Vet. App. 280, 292-93 (2008). Instead, a TDIU claim can be granted, despite the existence of a schedular total rating, for the purpose of an award of special monthly compensation (SMC) at the housebound rate under 38 U.S.C. § 1114 (s). Under 38 U.S.C. § 1114 (s), SMC is payable at the housebound rate where the veteran has a single service-connected disability rated as 100-percent disabling and, in addition, (1) has a service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. See 38 C.F.R. § 3.350. For purposes of this appeal, the Veteran met the percentage requirements for a TDIU as of August 1, 2008, the date of his increased rating claim. The Board notes that the Veteran was assigned a temporary 100 percent rating for his right knee disability for the period from April 16, 2010 to May 17, 2011; and from April 2, 2012 to June 1, 2013. He was also in receipt of special monthly compensation on account of the 100 percent rating for his right knee and separate service-connected disabilities independently ratable at 60 percent or more for these periods. Thus, as the maximum benefits were granted, TDIU is moot for those periods. In addition, the Veteran was assigned a combined schedular evaluation of 100 percent beginning October 30, 2014 to present, and none of his service-connected disabilities on their own, as will be addressed below, render him unemployable, as required by Bradley in order for TDIU not to be moot. Therefore, the decision in Bradley does not apply and the claim for a TDIU from October 30, 2014 onward is moot. Thus, the Board will only consider whether the Veteran is entitled to TDIU for the periods from August 1, 2008 to April 16, 2010; from May 17, 2011 to April 2, 2012; and from June 1, 2013 to October 30, 2014. Turning to the evidence, the Veteran is service connected for IVDS, femoral and sciatic radiculopathy of the bilateral lower extremities, right knee disability, left knee disability, right ankle sprain, erectile dysfunction, and scars, associated with total knee replacement, right knee. In his October 2014 hearing, the Veteran testified that his back disability prevents him from working. He reported that he has difficulty walking long distances and pain with sitting and standing. Additionally, in his October 2014 Application for TDIU, the Veteran reported that he last worked in October 2010 as a letter carrier for the United States Postal Service (USPS). He wrote that he left the job because he could no longer do the job anymore. At the outset, the Board initially notes that the evidence suggests the Veteran may have been gainfully employed for the period prior to July 1, 2013. In his Application for TDIU, the Veteran reported that he last worked in October 2010 and that he earned monthly wages of $4,201.44. However, in a November 2016 VA Form 21-4192 (Request for Employment information) from the USPS Human Resources Department, it was noted that the Veteran’s last date of employment was July 1, 2013 and that his termination of employment was due to retirement. Conversely, in a January 2015 VA Form 21-4192 completed and submitted by the Veteran, he continued to report that his last date of employment was in October 2010. Notably, however, he also noted that he began receiving retirement benefits in August 2013, which coincides with the USPS submission indicating that the Veteran retired in July 2013. In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). In determining the weight to be assigned to evidence, credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor. See Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff’d per curiam, 78 F.3d. 604 (Fed. Cir. 1996). Here, the Board has weighed the evidence above and finds the written correspondence from USPS is the most probative evidence in determining whether the Veteran was gainfully employed prior to July 1, 2013. The Board finds the Veteran’s statements are inconsistent concerning his dates of employment; and, unlike the Veteran, his former employer has no vested interest in the outcome of the Veteran’s case. Therefore, for the periods from August 1, 2008 to April 16, 2010 and from May 17, 2011 to April 2, 2012, the Board finds a TDIU is not warranted since the probative evidence of record shows the Veteran was gainfully employed until July 1, 2013 while earning wages above the poverty threshold. For the remaining period on appeal from June 1, 2013 to October 30, 2014, the Board has considered the evidence and finds that a TDIU is warranted. The evidence shows that the Veteran had two years of college education, and worked essentially as a letter carrier for the post office. He asserts that he became unable to work due to his back disability, however, the Board finds that his inability to maintain substantially gainful employment is due to the combination of his service-connected low back, radiculopathy of the lower extremities, and his right knee. There are several VA examinations with findings as to functional impairment caused by the Veteran’s right knee, IVDS, and radiculopathy. For example, in his September 2013 VA knee examination, the examiner found that the Veteran’s right knee limits his ability to work in that he is unable to sit, stand, or walk for extended periods. In his November 2018 VA knee examination, the examiner found that the Veteran’s knee would limit his ability to stand and squat frequently, and he was limited to lifting and carrying less than 25 pounds. Concerning his IVDS and radiculopathy, the January 2009 examiner noted that the Veteran’s DDD/DJD with IVDS and sciatic nerve conditions would moderately limit his daily activity. He further noted the Veteran would experience pain and discomfort with prolonged walking, standing, bending at the waist, and lifting more than 20 pounds. In his January 2015 VA back examination, the examiner found that the Veteran’s lumbar spine disabilities impacted sedentary work in that he would need to stand and move approximately every thirty minutes to two hours. Physical work would be impacted in that he could only stand for approximately 30 minutes, and he may have to sit down earlier. The examiner also noted that walking would be limited to 200 to 300 yards; he could lift and carrying from waist to shoulder height; and climb stairs as tolerated. In a November 2018 medical opinion for the Veteran’s back, the examiner found that the Veteran was capable of performing a job that required exerting up to 10 pounds of force occasionally, and involves sitting most of the time, but may involve walking or standing for brief periods of time. The examiner also found that light work was appropriate for the Veteran’s radiculopathy which would entail exerting up to 20 pounds of force occasionally, and/or up to 10 pounds of force frequently, and/or a negligible amount of force constantly to move objects. After considering the findings outlined above and the remaining evidence of record, the Board finds that the Veteran’s service-connected disabilities preclude the Veteran from securing or following gainful employment. While the evidence clearly shows that the Veteran is severely limited from employment that required prolonged standing, walking, or bending; lifting or carrying heavy objects, or exerting greater than 20 pounds of force, and has difficulty sitting due to his knee. The Veteran’s work history is primarily in physical labor jobs, and he would have difficulty with sedentary employment due to his education level, work experience, and difficulty with prolonged sitting due to his knee and back. For these reasons, the Board finds the preponderance of evidence supports a finding that TDIU is warranted from June 1, 2013 to October 30, 2014. (CONTINUED ON NEXT PAGE) GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.