Citation Nr: 20046582 Decision Date: 07/13/20 Archive Date: 07/13/20 DOCKET NO. 13-24 809A DATE: July 13, 2020 ORDER Entitlement to service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus, type II, or posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran has a sleep disorder of sleep apnea; the Veteran’s sleep apnea was not causally or etiologically related to service and was not otherwise caused or aggravated by his service-connected diabetes mellitus, type II, or posttraumatic stress disorder (PTSD). 2. The Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation; he was able to maintain lucrative employment despite this because he worked in a protected environment, his family business. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus, type II, or posttraumatic stress disorder (PTSD) have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303; 3.310 (2019). 2. The criteria for entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.340, 3.341, 4.3, 4.16(a) (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1968 to February 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. A notice of disagreement was received in August 2012, a statement of the case was issued in August 2013, and a substantive appeal was received in September 2013. In April 2016, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. In September 2016 and November 2017, the Board remanded the appeal to the RO for additional development. The appeal was thereafter returned to the Board for further consideration. In April 2020, the Veteran testified at a second personal hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) (2018). 38 U.S.C. § 7107(a)(2). Service Connection Service connection may be granted for a disability resulting from injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In addition, service connection may be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d). In order to prevail on the issue of entitlement to service connection, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. Hickson v. West, 12 Vet. App. 247, 253 (1999). A veteran seeking service connection must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351 (Fed. Cir. 2000). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of, or aggravated by, a service-connected disability. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show that a current disability exists and that the current disability was either proximately caused by or proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439 (1995). Whether lay evidence is competent and sufficient in a particular case is an issue of fact. Lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has the authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). Consequently, VA may favor one medical opinion over another, provided an adequate basis is provided. See Owens v. Brown, 7 Vet. App. 429 (1995). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Wilson v. Derwinski, 2 Vet. App. 614, 618(1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991). Equal weight is not necessarily accorded to each piece of evidence contained in the record; not every item of evidence necessarily has the same probative value. The Board has reviewed all of the evidence in the Veteran’s claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss every item of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). The Board will summarize the relevant evidence and focus specifically on what the evidence shows or fails to show as to the claims. When there is an approximate balance of evidence regarding an issue material to the determination of a matter, the benefit of the doubt in resolving the issue shall be given to the claimant. 38 U.S.C.§ 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for sleep apnea, to include as secondary to service-connected diabetes mellitus, type II, or posttraumatic stress disorder (PTSD) The Veteran contends that service connection is warranted for sleep apnea, to include as secondary to his service-connected diabetes mellitus or PTSD. After careful consideration of the evidence, the Board finds that the preponderance of the evidence is against the claim. Turning to whether the Veteran has a current sleep disability, the Board notes that the Veteran has been diagnosed with sleep apnea. Accordingly, this element has been met, and the Board will next ascertain whether service connection for sleep apnea is warranted on either a direct or secondary basis. Turning first to the elements needed to establish service connection for sleep apnea on a direct basis, the Board concludes that there is no credible evidence of an in-service incurrence of sleep problems or of a nexus to service. The Veteran’s service treatment records are silent for any complaints of, treatment for, or diagnosis of a sleep disorder. The Veteran’s separation examination is silent for any symptoms or diagnosis of a sleep disorder, and the Veteran denied any breathing problems or frequent trouble sleeping in his medical history report at discharge. The separation examination and medical history report are accepted as the credible and accurate account of the condition of his sleeping during service and upon discharge. Moreover, to the extent that the Veteran made general and conclusory statements asserting that his sleep apnea is due to service, these lay statements are not deemed competent evidence of a nexus to service. The Veteran has not demonstrated that he possesses the knowledge and expertise to provide an opinion as to the question of medical causation in order to competently address whether his sleep apnea was related to service. See Davidson v. Nicholson, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In this regard, the record reflects that the Veteran reported to the February 2017 VA examiner that his sleep apnea began in 1970 with light snoring, that he had extreme fatigue, and that he was seen or treated for “gasping for air.” However, the Veteran went on to admit that he was first diagnosed with sleep apnea in 2007. The clinical evidence is silent for complaints of or treatment for breathing problems or other symptoms related to sleep apnea prior to 2006. There are no medical opinions supporting a direct link between the Veteran’s military service and his currently diagnosed sleep apnea. Therefore, having determined that there is no credible probative evidence to establish either an in-service incurrence or probative evidence to establish a nexus to service, the claim for service connection must fail on a direct basis. Turning to secondary service connection, the Veteran asserts that medication prescribed for treatment of service-connected diabetes mellitus affected his metabolism and caused weight gain, which in turn caused sleep apnea. See April 2020 Hearing Transcript. In the alternative, the Veteran speculates that medication taken for his service-connected disabilities or sleep difficulties caused by PTSD have caused sleep apnea. Id. In support of his claim, the Veteran has submitted a November 2011 private medical opinion from Dr. C.D and a November 2016 private medical opinion from Dr. C.B. Dr. C.D. noted that the Veteran’s sleep apnea, diagnosed in 2011, resulted from medication prescribed to treat the Veteran’s diabetes mellitus in 2006. Dr. C.D. noted that the medication caused metabolic syndrome, which resulted in a 15 pound weight gain. Dr. C.D. therefore opined that the Veteran’s sleep apnea is therefore more than likely secondary to the dysmetabolic syndrome caused by diabetes mellitus. In the November 2016 private medical opinion, Dr. C.B. diagnosed the Veteran with syncope, diabetes mellitus, obstructive sleep apnea, and coronary artery disease. Dr. C.B. opined that the Veteran’s sleep apnea is the result of “either” his service-connected diabetes mellitus or PTSD, as the Veteran “has no other known risk factors of which I am aware that may have precipitated his current condition.” Dr. C.B. went on to state that in his “personal experience and in the medical literature it is known that this kind of diagnosis would not be uncommon for someone who had the in-service experiences and physical demands that [the Veteran] had.” The Board has previously found these medical opinions to be inadequate. Specifically, the Board found that Dr. C.D.’s opinion does not constitute probative medical evidence as it appears to be based upon a 2011 diagnosis of sleep apnea, when the Veteran’s sleep apnea was actually diagnosed in 2006. See September 2016 Board Remand; June 2006 Sleep Study. The Board found that the November 2016 opinion contained an inadequate rationale. See November 2017 Board Remand. Specifically, the Board noted that the opinion does not explain how the Veteran’s diabetes, which was noted in the November 2007 VA diabetes mellitus examination report to have had an onset in 2006, could cause obstructive sleep apnea, which is noted in the July 2012 VA sleep apnea examination report to also have had an onset in 2006. (The Board notes that the private opinion only addresses causation, not aggravation.) Furthermore, the reference to the Veteran having “no other known major risk factors” and the citation to his “in-service experiences and physical demands” are too vague to constitute an adequate rationale. The Veteran was afforded a Board hearing in April 2020 to present additional evidence in support of his claim. At the hearing, the Veteran testified that his cardiologist told him that he was diabetic and recommended that he undergo a sleep test. The Veteran testified that he was resistant to diagnoses of diabetes and sleep apnea, and that his diabetes improved after beginning to take medication. The Veteran testified that he was not diagnosed with sleep apnea until undergoing a sleep test in 2007, after a motor vehicle accident and recommendation by his psychiatrist due to his PTSD diagnosis. Regarding the dates of diagnosis of the Veteran’s diabetes mellitus and sleep apnea, in August 2007 the Veteran’s private cardiologist noted that the Veteran may have had diabetes with glucose intolerance, which would have made diagnosis difficult, if not impossible prior to the Veteran’s presentation with coronary artery disease. A January 2007 private treatment note shows that the Veteran was diagnosed with diabetes mellitus in August 2006 and was prescribed treatment in the form of medication, indicating that he also had a history of sleep apnea and had not used his CPAP since starting medication. In September 2005, the private cardiologist noted probable obstructive sleep apnea and recommended a sleep study. A June 2006 sleep study confirmed a diagnosis of obstructive sleep apnea, noting that the Veteran had undergone a previous sleep study to establish the original diagnosis. Based on this clinical evidence, the Board reiterates its finding that the November 2011 private medical opinion is of no probative value. The evidentiary record clearly demonstrates that the Veteran was diagnosed with sleep apnea prior to June 2006 and before he was diagnosed with and prescribed medication to treat diabetes mellitus. To the extent that the Veteran was able to discontinue use of a CPAP machine after starting diabetes medication, there is no medical opinion of record establishing that the causation or aggravation factor is satisfied by this evidence. On the contrary, any improvement in symptoms linked to the use of diabetes medication undermines the Veteran’s assertion that his sleep apnea was caused or worsened by his diabetes mellitus. The Board also finds the November 2016 private medical opinion to be inadequate. Dr. C.B. provided a speculative and unclear rationale by concluding that “it is known that this kind of diagnosis would not be uncommon for someone who had the in-service experience and physical demands” that the Veteran had. This rationale, while making a general assertion of a relationship between sleep apnea, diabetes mellitus, and PTSD, does not adequately explain what that relationship is or how it is related to the “in-service experiences and physical demands” of the Veteran’s service. There are also multiple VA medical opinions of record, which have opined that the Veteran’s sleep apnea is not related to his service-connected diabetes mellitus or PTSD. Regarding the theory that the Veteran’s sleep apnea is caused by his diabetes mellitus or PTSD, the February 2017 VA examiner opined that the Veteran’s sleep apnea is not proximately due to his diabetes mellitus or PTSD, stating: OSA involves the velopharyngeal and/or oropharyngeal airway collapsing (recurrently) during sleep, resulting in reduction/loss of airflow. It is more of an anatomical dysfunction rather than secondary to DM or PTSD. PTSD can affect one's circadian rhythm or sleep pattern but will have little to no effect on the anatomical effect of oropharynx on OSA. In a February 2018 addendum opinion, the VA examiner found that it was not at least as likely as not that the Veteran’s sleep apnea was aggravated beyond its natural progression by his PTSD. The VA examiner clarified that sleep apnea is an anatomical disorder. The VA examiner explained that the Veteran’s PTSD or mental disorder has no impact on the Veteran’s oropharyngeal airway anatomy, and as such his PTSD has no impact on his sleep apnea. In a March 2018 addendum opinion, the VA examiner explained that diabetes has no effect on the oropharynx and thereby cannot aggravate the Veteran’s sleep apnea. The Board finds the February 2017 VA medical opinion, taken together with the subsequent addendum opinions, to be of high probative value in this matter, as it considered the Veteran's medical history, was based on the evidence of record, and provided a supporting rationale based on sound medical principles for the opinion reached. The Board finds the VA examiner’s opinion dispositive of the nexus questions presented. The only other opinion in this matter comes from the Veteran. The Board recognizes that there are instances in which a layperson may be competent to offer testimony on medical matters, such as describing symptoms observable to the naked eye or even diagnosing simple conditions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board finds, however, that the questions posed by this claim are of such complexity as to require that individuals who provide competent medical evidence on these matters possess a level of expertise that a layperson simply does not possess. As there is no other persuasive nexus evidence of record that established a link between the Veteran’s diagnosed sleep apnea and his service-connected diabetes mellitus or PTSD, either on a causational or aggravation-based foundation, the claim for service-connection on a secondary basis must fail, as well. For all the reasons set forth above, service connection for sleep apnea on a direct or secondary basis is not warranted. TDIU Total disability ratings for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there are sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16. Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. § 3.341 (a); see 38 C.F.R. § 4.19 (stating that age may not be a factor in evaluating service-connected disability or unemployability). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to TDIU is “based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, a TDIU analysis must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991); see Friscia v. Brown, 7 Vet. App. 294, 295-97 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) The Veteran seeks entitlement to a total disability rating due to individual unemployability (TDIU). He asserts he cannot work due to his service-connected disabilities. The Veteran is service-connected for coronary artery disease, post infarction rated as 60 percent disabling from July 23, 2007; PTSD, rated as 30 percent disabling from August 23, 2010 and 50 percent disabling from January 20, 2012; diabetes mellitus, type II rated as 20 percent disabling from July 2007; and tinnitus, rated as 10 percent disabling from November 2010. His combined rating is 70 percent from July 23, 2007, 80 percent August 23, 2010, and 90 percent from January 20, 2012. Thus, the Veteran meets the percentage threshold requirements provided in 38 C.F.R. § 4.16(a) for consideration of entitlement to a TDIU for the entire period on appeal. He is eligible for an individual unemployability rating if it is demonstrated that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Specifically, the Veteran asserts that he was involved in a motor vehicle accident in May 2007 which was the result of syncope caused by his service-connected heart condition, and that he has been unable to work since that time. The Veteran submitted an application for a TDIU in December 2010, at which time he indicated that he had been unemployed since 2007. He reported prior employment as an estimator, installer, and field engineer at a custom blinds business since 1983. He contended that service-connected ischemic heart disease prevented him from securing or maintaining substantially gainful employment. The Board has reviewed the Veteran’s medical records, to include those from the Veteran’s long-time cardiologist. A January 2002 echocardiogram report noted a history of syncope. Emergency department records show that the Veteran was involved in a motor vehicle accident in May 2007. The emergency department records show that the Veteran was transported by ambulance, suffered lacerations, and was diagnosed with lumbar strain. The Veteran again presented to the emergency department in October 2007 with complaints of experiencing chest pain, shortness of breath, dizziness, lightheadedness, and nausea while driving. The Veteran reported taking three nitroglycerin before feeling improvement and driving to the emergency department. The Veteran was discharged with instructions not to drive for three days, or lift any object greater than five pounds. After October 2007 the records from the Veteran’s cardiologist indicate stabilization of the Veteran’s heart condition, with no syncope or chest pains. The Veteran indicated that he was working in some capacity, having sold his business but continuing to engage in some “side window dressing business”. The Veteran was noted to be exercising regularly and was planning family vacations. However, in August 2009 the Veteran complained of waking up with extreme fatigue and weakness once a month, and sleeping “a lot” for two days. The Veteran also complained of transient shortness of breath. The cardiologist noted that upon examination the Veteran was “quite healthy” and noted that the symptoms were “strange” and likely not ischemic in nature. In a February 2011 Disability Benefits Questionnaire (DBQ), the Veteran’s cardiologist noted that the Veteran had extensive stenting of his coronary arteries from 2002 to 2006, and recommended that the Veteran only perform administrative duties or light field duties, and that he “not enter unpredictable in process construction sites that require ladder work and excessive overhead strain.” The doctor further recommended that the Veteran not travel to areas distant from modern emergency room care until his heart condition stabilized. In a December 2011 DBQ, the cardiologist noted that the Veteran had comorbidities to include ischemic heart disease, diabetes mellitus, and central apnea and that it is difficult to assign specific causes for syncope. However, he noted that the Veteran was admitted to the emergency room in 2007 after a motor vehicle accident and in May 2011 for a head injury. He further noted that syncope tends to recur and that he therefore recommended “restriction from employment to minimize risk of physical injury to himself or others”. In a March 2016 treatment record, the cardiologist noted that the Veteran was fully retired. He noted that the Veteran had a past episode of syncope and bradycardia and that his beta blockers were cut back as a result. He noted that the Veteran reported recurrent episodes of dizziness and syncope, and history of bradycardia, and ordered additional testing and adjustment to the Veteran’s medication. Statements from the Veteran and his spouse were also considered. The evidence of record establishes that the Veteran worked in a family business as an installer, scheduler, and field estimator from 1983 to 2007. See August 2007 Letter from Spouse; December 2010 TDIU claim. His spouse’s statements indicate that the Veteran’s work was critical to the success of the business and that the business began to fail after the Veteran suffered a myocardial infarction in 2002. According to the Veteran’s spouse, the Veteran remained employed by the business although he could no longer perform his duties due to physical and mental health conditions, and that three staff members were tasked with mitigating the Veteran’s behaviors as he failed to keep appointments, lost paperwork, and was taken advantage of by potential business partners, eventually leading to the loss of the business. She recounted that the Veteran underwent five heart procedures from 2002 to 2007. The Veteran’s spouse acknowledged that she realized that the company needed to replace the Veteran, but his employment at the company was not officially terminated until the May 2007 car accident in a company owned vehicle. The Veteran states that he has had ongoing complications of his service-connected heart condition, to include episodes of syncope leading to the May 2007 car accident and multiple falls resulting in injury, and a recent heart attack in 2019. See April 2020 Hearing Transcript. The Veteran states that he has been to the hospital at least seven times for his heart condition since he stopped working in 2007. The Veteran describes his work in the family business as requiring visits to construction sites to meet with customers and create estimates, and that he could no longer safely work at these sites after the May 2007 car accident. The Veteran has also stated that he was unable to transition within the business to an administrative or desk job due to his PTSD. As a result, the Veteran states that he could no longer generate income for the business. The Veteran underwent a PTSD VA examination in October 2010. The examiner reported that the Veteran had not worked in three years due to his physical condition and difficulty getting along with others. The examiner noted symptoms of, anxiety, irritability, isolation, and diminished interests. The examiner characterized the severity of the Veteran’s symptoms as resulting in some impairment of social functioning. In January 2012 the Veteran was afforded VA examinations to determine the functional impact of his service-connected disabilities. The examiner opined that the Veteran’s service-connected diabetes mellitus and ischemic heart disease do not impact the Veteran’s ability to perform sedentary employment, noting that the Veteran’s cardiac function had improved and that his diabetes was well controlled with medication. The examiner noted private medical providers’ opinions that the Veteran could not work due to syncope, but questioned the true severity of the Veteran’s condition because none of his private doctors had taken away the Veteran’s driving privileges. Regarding the Veteran’s PTSD, the examining psychologist noted symptoms of mood disturbance, irritability, and problems with concentration which would be associated with reduced reliability and productivity in an occupational setting, regardless of whether the work involves physical or sedentary tasks. The examiner noted that it was exceptionally difficult for the Veteran to follow the structure of the interview, that his thought process was difficult to follow, and that attempts to redirect him to relevant topics were generally unsuccessful. The examiner noted the possibility that the Veteran is experiencing cognitive decline and that neuropsychological testing would be required to determine the nature and extent of any such decline. After thorough consideration of the medical and lay evidence, the Board finds that there is evidence both for and against the claim for a TDIU. Thus, all doubt is resolved in favor of the Veteran to find that, cumulatively, his service-connected disabilities are such that for all practical purposes he is precluded from securing and maintaining substantially gainful employment. He has a college education and worked in a family business for over 20 years. The Veteran stated that he earned $40,000 in 2001, the year prior to his myocardial infarction, and that in the years between 2004 and 2007 he continued to be employed by the family business full time earning a similar salary. The Veteran continued to earn this salary even though the evidentiary record establishes that he had physical and mental challenges related to his service-connected disabilities that affected his productivity and caused financial hardship for the business. The Board notes that the term "protected (work) environment" has not been defined. Despite this, the Board finds that the Veteran's employment in his family business was a protected work environment. The Veteran’s spouse has stated that while she was aware that the Veteran was unable to successfully perform the duties of the job, he continued to work and she used retirement savings to offset the losses caused by the Veteran’s actions. She has also stated that the Veteran was absent from work, missed appointments, lost paperwork, caused an auto accident that destroyed a company vehicle and injured the Veteran and others, and entered into business agreements that eventually resulted in the loss of the business. The Veteran’s behavior is typically not acceptable in a work environment. Ultimately, the descriptions of both the Veteran's work responsibilities and interactions with coworkers and customers is inconsistent with what would be expected in a competitive work environment. The Board notes that the question of employability is ultimately one for the fact finder to decide, and not a medical provider. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). In this case, when considering the Veteran’s education, prior work experience, and limitations due to his service-connected disabilities, the Board finds that the evidence is at least in equipoise as to whether he is precluded from substantial gainful employment. The Board therefore resolves all doubt in the Veteran’s favor and determines that a TDIU rating is warranted. 38 C.F.R. § 3.102. Accordingly, the appeal is granted. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Bynum, 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.