Citation Nr: 20042065 Decision Date: 06/20/20 Archive Date: 06/20/20 DOCKET NO. 16-35 755 DATE: June 20, 2020 ORDER The application to reopen a claim for entitlement to service connection for a right ankle condition is denied. Entitlement to service connection for a left ankle condition is denied. Entitlement to an increased disability evaluation for mechanical thoracolumbar strain in excess of 10 percent disabling is denied. Entitlement to an increased disability evaluation for left wrist tendinitis in excess of 10 percent disabling is denied. REMANDED Entitlement to service connection for mixed bony lesion, right humerus (claimed as right shoulder condition) is remanded. FINDINGS OF FACT 1. A February 2017 rating decision denied entitlement to service connection for a right ankle condition; the Veteran did not appeal the denial in a timely manner, and no new and material evidence was submitted within the appeal period. 2. No new and material evidence has been received pertaining to the Veteran’s claimed for right ankle condition since the issuance of the February 2017 rating decision. 3. The preponderance of the evidence of record is against finding that the Veteran has had a left ankle disability at any time during or approximate to the pendency of the claim. 4. The Veteran’s mechanical thoracolumbar strain is manifest by painful motion with forward flexion and left lateral flexion, with increasing tightness relative to use/overuse. 5. The preponderance of the evidence of record is against finding that the Veteran’s left wrist is ankylosed. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for a right ankle condition. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. The criteria for service connection for a left ankle condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for a rating in excess of 10 percent for service-connected mechanical thoracolumbar strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5237. 4. The criteria for a rating in excess of 10 percent for service-connected chronic sprain of the right wrist have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5215. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from August 2007 to November 2012, with additional service in the Army National Guard. These matters come before the Board of Veterans’ Appeals (Board) from May 2016 and February 2019 rating decisions (RD) issued by a Department of Veterans Affairs (VA) Regional Office (RO). New and Material 1. Whether new and material evidence has been received to reopen the claim for entitlement to service connection for a right ankle condition At the outset, the Board notes that the issue on appeal has been recharacterized to reflect the procedural aspects of the Veteran’s claim. Following the issuance of February 2017 RD, that which denied service connection for a right ankle condition, rather than filing a Notice of Disagreement (NOD), the Veteran filed a September 2017 supplemental claim requesting a reopening of his previously denied claim. Upon review, the Board does not find that the Veteran timely appealed the February 2017 RD, nor did he submit new and material evidence within one year of the February 2017 RD, and therefore the February 2017 RD became final. As to the RO’s February 2019 determination that new and material evidence has not been received since the February 2017 RD to warrant a reopening of the Veteran’s claim, the Board must review that question for itself on appeal. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). A previously denied claim may be reopened by the submission of new and material evidence. 38 U.S.C. § 5108; 38 U.S.C. § 3.156 (a). Evidence is “new” if it has not been previously submitted to agency decision makers. Id. Evidence is “material” if it, either by itself or considered in conjunction with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence cannot be cumulative with or redundant of evidence already of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Moreover, in Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010), the U.S. Court of Appeals for Veterans Claims (Court) clarified that the phrase "raises a reasonable possibility of substantiating the claim" is meant to create a low threshold that enables, rather than precludes, reopening. Specifically, the Court stated that reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. Upon review, the Board does not find that any new and material evidence has been submitted in support of the Veteran’s claim for entitlement to service connection for a right ankle condition subsequent to the RO’s February 2017 RD. To point, the evidence of record still fails to show: (i) that the Veteran has a currently diagnosed right ankle condition; and (ii) that a medical nexus exists between the claimed for right ankle condition and service. While the Veteran’s STRs do reveal a medical complaint of right ankle swelling and pain, that evidence was already of record when the claim was initially denied by the RO in February 2017. See id.; July 25, 2008 STR. Therefore, as there is no basis to reopen the claim for service connection for a right ankle condition, the appeal must be denied. 38 U.S.C. §§ 5107, 5108; 38 C.F.R. § 3.156. In reaching the above conclusion, the Board has considered the June 2020 argument of the Veteran’s attorney representative that under the Federal Circuit’s holding in Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) that pain alone can serve as a functional impairment sufficient to qualify for a disability for VA compensation purposes. The attorney argues, “The Secretary fails to explain how pain alone is incapable of causing an impairment in earning capacity, and we seen no reason to reach such a conclusion.” The Board does not dispute the possibility that right ankle pain could result in some degree of functional impairment. In this case, however, neither the Veteran nor his representative have put forth any argument as to how right ankle pain results in functional impairment specifically in the case of the Veteran. It is unclear from the records the Veteran’s current occupation, but in October 2013 he was working in security and also was a college student. Multiple subsequent VA examinations of the right ankle showed entirely normal functioning, including range of motion, reflexes, sensation, and strength. The Veteran during his February 2017 VA contract examination reported that he experienced pain and stiffness with exercise and running. During his July 2019 VA audio examination, however, the Veteran indicated that he was working in cyber security in an office setting. To the extent that the February 2017 report of pain and stiffness with exercise and running is the Veteran’s claimed functional impairment, the Board again notes that physical examination at that time showed normal ranges of motion without evidence of pain (including following repetitive motion testing), normal reflexes, normal sensation, and normal muscle strength. While the Board acknowledges the Veteran’s competent to report pain and stiffness with exercise and running, in the absence of specific evidence as to how that affects occupational functioning and given the entirely normal physical examination, the Board finds insufficient evidence to find that the Veteran’s pain and stiffness result in functional impairment sufficient to constitute a disability for VA purposes. As such, there remains no evidence of a right ankle disability since the time of the February 2017 prior final denial. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). 2. Entitlement to service connection for a left ankle condition The Veteran contends that he has a left ankle condition that is related to service, namely due to parachuting. See June 2020 Supplemental Remarks to Veteran’s Substantive Appeal. The Board concludes that the Veteran does not have a current diagnosis of a left ankle condition and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The February 2017 VA examiner evaluated the Veteran and determined that, he did not experience pain during the examination, to include with weight bearing, and there was no objective evidence of localized tenderness or pain on palpitation of the joint or associated soft tissue, nor did the Veteran have a currently diagnosed left ankle condition. The VA examiner also noted that the Veteran did not report experiencing flare-ups of the ankles, nor is there evidence of record, medical or lay, to contradict the examiner’s findings. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017); see also June 2020 Supplemental Remarks to Veteran’s Substantive Appeal. The Board notes the holding in Saunders v. Wilkie, which states that where pain causes functional impairment, a disability for VA compensation purposes exists, even if there is no underlying diagnosis. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). For same reasons as discussed above, the Board finds the July 2020 arguments of the Veteran’s attorney representative that the Veteran has left ankle pain sufficient to satisfy the requirements for a disability for VA purposes based on functional impairment. Indeed, there is even less evidence with respect to the left ankle than the right ankle, as the February 2017 VA contract examination discussed only the symptoms regarding the right ankle without reference to the left ankle. There is no other discussion as to the left ankle symptomatology that would permit the Board to find functional impairment sufficient to meet the requirements set for in Saunders. While the Veteran believes he has a currently diagnosed left ankle condition that is related to service, neither he, or his representative, are competent to provide a diagnosis in this case, to include determining that a medical nexus exists between the claimed for condition and service. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). The issue is medically complex and requires specialized medical education. Consequently, the Board gives more probative weight to the competent medical evidence, namely the February 2017 VA examination report. The Board does not discount the fact that the Veteran’s Service Treatment Records evidence an in-service medical complaint of swelling and pain of the left ankle. See September 17, 2010 STR; June 2020 Supplemental Remarks to Veteran’s Substantive Appeal. However, in the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Increased Rating 3. Entitlement to an increased disability evaluation for mechanical thoracolumbar strain in excess of 10 percent disabling The Veteran contends that he is entitled to a higher rating due to chronic low back pain that is worse with use/overuse with increasing tightness and decreased range of motion. See January 2019 VA examination (medical history, as relayed by the Veteran, noted therein). The Veteran’s mechanical thoracolumbar strain is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Here, the Board notes that the Veteran is already in receipt of a 10 percent disability rating pursuant to 38 C.F.R. § 4.59 for painful motion of the thoracolumbar spine. See February 2019 RD. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” Relative to the instant claim, the Board notes that the spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for mechanical thoracolumbar strain. Per the January 2019 VA examination, the Veteran had normal range of motion with forward flexion from 0 to 90 degrees, extension from 0 to 30 degrees, right lateral flexion 0 to 30 degrees, left lateral flexion to 0 to 30 degrees, right lateral rotation 0 to 30 degrees, left lateral rotation 0 to 30 degrees. While pain was exhibited during the range of motion testing, specifically with forward flexion and left lateral flexion, the VA examiner did not find that it resulted in/caused additional functional loss. There was no evidence of pain with weight bearing. There was objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine with mild tenderness on palpation along mid back/thoracic region and right side paraspinal muscles, no muscle spasms or guarding. Id. Repetitive use testing was performed, and there was no additional loss of function or range of motion after three repetitions. Id. The VA examiner found the examination to be medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Id. The VA examiner did not find that pain, weakness, fatigability, or incoordination significantly limit his functional ability with repeated use over time. The VA examiner also noted that the Veteran did not report experiencing flare-ups of the thoracolumbar spine, nor is there evidence of record, medical or lay, to contradict the examiner’s findings. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017); see also June 2020 Supplemental Remarks to Veteran’s Substantive Appeal. The Board recognizes that the Veteran reported taking medication for back pain, and that per Jones v. Shinseki, 26 Vet. App. 56 (2012) in assigning a disability rating the VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See January 2019 VA examination. Although the use of medication is not explicitly considered in the rating criteria under the General Rating Formula for Diseases and Injuries of the Spine, there is nothing in the record, to include the Veteran's own contentions, that suggests he would have developed forward flexion to 60 degrees or less, or ankylosis, but for the use of medication. The Board also acknowledges the Veteran’s lay reports that there is additional functional loss due to chronic low back pain. However, even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the Veteran’s statements would not result in limitation of motion more nearly approximating 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. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has neurological abnormality associated with his spine disability. See January 2019 VA examination. Finally, the Board acknowledges the July 2020 argument of the Veteran’s attorney representative that, “The examination does not adequately address flare-ups…” As discussed above, the Veteran specifically denied flare-ups of the back during the January 2019 VA examination. As such, the Board finds no basis for the attorney’s contention. As to the argument that the evaluation fails to take into account the Veteran’s report of mild tenderness to palpation, the tenderness did not result in muscle spasms or guarding and otherwise is taken into account in the overall disability picture that results in pain causing functional loss that most closely approximates the criteria for a 10 percent disability rating. The attorney does not specify how the mild tenderness to palpation results in additional functional loss not contemplated in the current rating. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for mechanical thoracolumbar strain. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to an increased disability evaluation for left wrist tendinitis in excess of 10 percent disabling The Veteran contends that he is entitled to a higher rating because his service-connected left wrist tendinitis has undergone a worsening since it was last examined in September 2013, as he now experiences increased pain with use/overuse in lifting/bending/carrying. See January 2019 VA medical examination (medical history, as relayed by the Veteran, noted therein); see also September 2013 VA examination. The Veteran's left wrist tendinitis is rated under DC 5215. VA regulation provides a 10 percent rating for limitation of wrist motion to the major or minor extremity with dorsiflexion less than 15 degrees or palmar flexion limited in line with the forearm. See 38 C.F.R. § 4.71a, Diagnostic Code 5215. There is no higher rating under this diagnostic code, but the regulation provides for higher disability evaluations for ankylosis of the wrist. See 38 C.F.R. § 4.71a, Diagnostic Code 5214. The severity of the Veteran’s service-connected left wrist was evaluated by the January 2019 VA examiner. Per the examination report, the Veteran's left wrist tendinitis is manifested by abnormal range of motion with palmar flexion from 0 to 80 degrees, dorsiflexion from 0 to 55 degrees, ulnar deviation from 0 to 45 degrees, and radial deviation from 0 to 20 degrees. The Veteran exhibited pain during the range of motion testing for palmar flexion and radial deviation. There was no evidence of (i) pain with weight bearing; (ii) localized tenderness or pain on palpation of the joint or associated soft tissue; or (ii) crepitus. The VA examiner also noted that the Veteran did not report experiencing flare-ups of the wrist, nor is there evidence of record, medical or lay, to contradict the examiner’s findings. Sharp v. Shulkin, 29 Vet. App. 26, 3436 (2017); see also June 2020 Supplemental Remarks to Veteran’s Substantive Appeal. Importantly, for purposes of adjudicating the Veteran’s increased rating claim, the VA examiner did not find that the Veteran’s left wrist was ankylosed. Id. The Board recognizes that the Veteran reported taking medication for wrist pain, and that per Jones v. Shinseki, 26 Vet. App. 56 (2012) in assigning a disability rating the VA may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See January 2019 VA examination. Although the use of medication is not explicitly considered in the rating criteria under DC 5214 and 5215, there is nothing in the record, to include the Veteran's own contentions, that suggests he would have developed ankylosis of the left wrist, but for the use of medication. As there is no evidence of left wrist ankylosis, that which would entitle the Veteran to a higher disability evaluation, the presently assigned 10 percent rating is the highest schedular rating available under DC 5215, and the claim for an increased rating must be denied. See Sabonis v. West, 6 Vet. App. 426, 430 (1994). As the 10 percent disability rating assigned is the maximum rating and ankylosis is not shown by the evidence of record, it is unnecessary for the Board to consider functional loss, including flare-ups. See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997) ("...the appellant is already receiving the maximum disability rating available under DC 5215 and, thus, remand is not appropriate. "). Finally, and as discussed in the spine section above, the Board acknowledges the July 2020 argument of the Veteran’s attorney representative that, “The examination does not adequately address flare-ups…” Again, as discussed above, the Veteran specifically denied flare-ups of the wrist during the January 2019 VA examination. As such, the Board finds no basis for the attorney’s contention. As to the argument that the evaluation fails to take into account the Veteran’s report of tenderness to palpation, there was no localized tenderness or pain on palpation of the joint or associated soft tissue. As such, the Board finds no basis for the attorney’s contention. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 10 percent for left wrist tendinitis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 5. Entitlement to service connection for mixed bony lesion, right humerus (claimed as right shoulder condition) is remanded. The Board finds that as the Veteran relocated during the appeal, and as said relocation seemingly hindered his ability to attend the VA examination scheduled in October 2019, the Board is willing to afford him the benefit of the doubt and find good cause to reschedule and obtain the additional VA examination for his claimed for right shoulder condition as directed in the Board’s October 2018 remand. See November 2019 Third Party Correspondence (Change of Address); June 2020 Supplemental Remarks to Veteran’s Substantive Appeal. The Veteran is reminded that the consequences of failure to report for a VA examination without good cause may include denial of the claim 38 C.F.R. §§ 3.158, 3.655. Therefore, the Veteran must do his best to report for examination, or to reschedule the examination in advance if he is unable to attend. The Veteran is also informed that the duty to assist is not a one-way street; he has a responsibility to cooperate in the development of all facts pertinent to his claim, to appear for his scheduled examination, and to properly notify the VA when his address changes. See Wood v. Derwinski, 1 Vet. App. 190 (1991). The matters are REMANDED for the following action: 1. Associate with the Veteran’s claims file any outstanding VA treatment records since July 2019. 2. Schedule the Veteran for a new VA examination for his claimed for mixed bony lesion of the right humerus (claimed as right shoulder condition). The VA examiner should be provided with the complete dates of the Veteran’s ACDUTRA and INACDUTRA service. The Veteran’s claims file (to include this remand) must be reviewed by the VA examiner in conjunction with the examination. Based on the examination results and a review of the pertinent medical history, the examiner should provide opine as to all of the following: a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s mixed bony lesion of the right humerus disability (claimed as right shoulder condition) incurred in service, or is otherwise etiologically related to his active duty service or any period of ACDUTRA or INACDUTRA? b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s claimed for mixed bony lesion of the right humerus disability (claimed as right shoulder condition) was aggravated (worsened beyond its natural progression) by his active duty service or any period of ACDUTRA or INACDUTRA? c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s mixed bony lesion of the right humerus disability (claimed as right shoulder condition) was aggravated (worsened beyond its natural progression) by his service-connected mechanical thoracolumbar strain? d.) Is it at least as likely as not (50 percent or greater probability) that the Veteran’s mixed bony lesion of the right humerus disability (claimed as right shoulder condition) was aggravated (worsened beyond its natural progression) by his service-connected right shoulder bursitis? CHRISTOPHER HOUBECK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R Fey, 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.