Citation Nr: 20046906 Decision Date: 07/14/20 Archive Date: 07/14/20 DOCKET NO. 17-13 787 DATE: July 14, 2020 ORDER Entitlement to service connection for a lumbar spine disability is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran’s currently diagnosed lumbar spine disability had its onset during his military service. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran’s favor, the criteria to establish entitlement to service connection for a lumbar spine disability have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran, who is the appellant in this case, served on active duty from January 1968 to March 1968, from March 1968 to October 1971, and from July 1982 to August 1987, including service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. The Board notes that the Veteran’s claim for service connection for diabetes mellitus type II was granted in a rating decision dated September 2017. Therefore, that claim is no longer before the Board and will not be addressed herein. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c) and 38 U.S.C. § 7107(a)(2). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). 1. Entitlement to service connection for a lumbar spine disability Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be granted for any injury or disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). As pertinent here, arthritis is a “chronic disease” listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. Where there is a chronic disease shown as such in service or within the presumptive period under 38 C.F.R. § 3.307 to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). This rule does not mean that any manifestation in service will permit service connection. For the showing of “chronic” disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If a condition noted during service is not shown to be chronic, then generally, a showing of “continuity of symptoms” after service is required for service connection. 38 C.F.R. § 3.303(b). Where a Veteran served ninety days or more of active service, and certain chronic diseases, such as arthritis, become manifest to a degree of 10 percent or more within one year after the date of separation from such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). While the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. Id. A Veteran is presumed to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Only such conditions as are recorded on a Veteran’s examination report are to be considered as “noted.” 38 C.F.R. § 3.304(b). When a preexisting condition is not noted on a Veteran’s entrance examination, the burden is on the government to rebut the presumption of soundness by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). If the government rebuts the presumption of soundness, the Veteran is not entitled to service-connected benefits. However, if the government fails to rebut the presumption of soundness by showing any of the above, the Veteran’s claim is one of direct service connection. Horn v. Shinseki, 25 Vet. App. 231, 236-37; Wagner, 370 F.3d at 1096. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A Veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. 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. Here, the Veteran asserts that he currently has a lumbar spine disability that is related to, or caused by, his active service. As an initial matter, the Board finds that the Veteran has a current diagnosis of chronic lumbar strain. See April 2015 VA examination report. Additionally, while there is some ambiguity in the record as to whether the Veteran has arthritis of the lumbar spine, in a June 2014 private radiology report of the pelvis and right hip, the interpreting radiologist noted “degenerative changes of the visualized lumbar spine, incompletely imaged,” and in a February 2017 VA medical opinion, the VA examiner wrote, “The veteran has clear objective evidence of current degenerative arthritis of the lumbar spine on xray.” Therefore, a current disability, to include arthritis, is established. Turning to the relevant evidence, in a May 1967 Report of Medical History, the Veteran endorsed excellent health and denied any recurrent back pain. There is no Report of Medical Examination of record. A chronological listing of service in the Veteran’s military personnel records shows that he served as “Chief of Engineering and Constructions” at Phu Cat Air Base in the Republic of Vietnam in November 1970. In a July 1982 Report of Medical History, the Veteran endorsed recurrent back pain, and in the physician’s summary and elaboration of all pertinent data, the examiner wrote, “Back pain, consultation at McClellan AFB, CA, no treatment, not chronic, not incapacitating.” In a July 1982 Report of Medical Examination, the examiner noted that the Veteran’s spine was normal upon clinical evaluation, and in a section entitled “Notes and significant or interval history,” the examiner wrote, “Back pain, consultation at McClellan AFB, CA, no treatment, not chronic, not incapacitating.” In a February 1985 private treatment record from a physical therapy clinic, the provider diagnosed the Veteran with “low back syndrome,” writing, “Upon evaluation he complained of acute onset of low back pain that has been recurrent since the age of 16 when he was injured diving off backward from a diving board. His pain is recurrent about every one to two years and he is usually able to work the pain out. However this time it has not gone away as usual. He complains that the pain is triggered by a poor posture position where he stands bent reaching over an object with pain occurring after 15 - 20 minutes of holding this position. He reports that x-ray findings are normal. Occasionally he complains of right buttock pain with right posterior lateral leg and lateral foot pain and 'flicking' of the muscle in this pathway.” On physical examination, the provider noted the following pertinent findings: “Structural alignment and posture shows a slight flattening of the lumbar curve with a slight forward head, rounded shoulder posturing,” “Range of motion: Forward bending, able to touch the fingers on the floor. Right side bending, normal. Left side bending appears to be decreased mobility in the lumbar curve from about L1 through L5. Extension decreased about 50%,” and “Myofascial tightness. There is marked tightness of the right thoracic and lumbar erector spiny muscle groups...” In another private treatment record from the same physical therapy clinic dated later in February 1985, the provider assessed the Veteran with “Recurrent low back pain secondary to myofascial tightness of the hip flexors, hamstrings and the right erector spiny muscle groups.” In a March 1986 Report of Medical Examination, the examiner found that the Veteran’s spine was normal upon clinical evaluation. In a March 1986 Report of Medical History, the Veteran endorsed recurrent back pain. When asked, “Have you consulted or been treated by clinics, physicians, healers, or other practitioners within the past 5 years for other than minor illnesses?” the Veteran indicated he had, and wrote, “back muscle exercises.” In a February 1987 service treatment record (STR), the Veteran endorsed mild back pain with work. In an April 1990 Report of Medical Examination, the examiner found that the Veteran’s spine was normal upon clinical evaluation. In an April 1990 Report of Medical History, the Veteran endorsed recurrent back pain, and in the physician’s summary and elaboration of all pertinent data, the examiner wrote, “Recurrent low back pain secondary to myofascial tightness of hip flexors, hamstrings and right erector spiny muscle groups, 1985, treated with physical therapy (see report in chart), home exercise program, swimming.” In a March 1995 Report of Medical Examination, the examiner found that the Veteran’s spine was normal upon clinical evaluation. In a March 1995 Report of Medical History, the Veteran endorsed recurrent back pain, and in the physician’s summary and elaboration of all pertinent data, the examiner wrote, “Recurrent low back pain, since 1985, secondary to myofascial tightness of hip flexors, hamstrings, and right erector spinea muscles, treated with physical therapy home exercise program.” In a February 2006 private treatment record, on physical examination of the back, the provider noted no cervical, thoracic, or lumbar spine tenderness. In private treatment records dated December 2012, January 2014, and June 2014, on physical examination of the back, the provider noted “Symmetric, no curvature, ROM normal, no CVA tenderness.” In April 2015, the Veteran was provided a VA examination to determine the nature and likely etiology of his lumbar spine disability. The VA examiner, a medical doctor, indicated that the Veteran’s diagnosis was chronic lumbar strain and noted the date of diagnosis as 1985. In describing the medical history of the Veteran’s lumbar spine disability, the examiner wrote, “[The Veteran] injured his back doing a reverse dive when a teenager. He began again having back pains after entering the Air Force in 1968, related to bending over drafting tables or lifting. He noted an aggravation when he lifted a heavy post coated in concrete. There were multiple episodes of back pain while in the service, treated with aspirin. No x-rays were performed. In 1985, while in Air National Guard, he was evaluated for the recurring and persistent back issues, and found to have tight posterior ligaments and muscles, and was treated with physical therapy and muscle relaxants, with moderate benefit. The pain continues on a daily basis, aggravated by lifting or forward bending, or lying flat on his back. Condition has stabilized, with his careful attention to how he performs physical activities, and avoidance of provocative actions. He has daily pain in his lumbar back area, sometimes radiating into left leg. He treats with muscle relaxants and NSAIDs. No diagnostics are available for review.” The VA examiner opined that the Veteran’s thoracolumbar spine condition impacted his ability to work. In an April 2015 VA medical opinion, the VA examiner was asked to “state whether the Veteran’s military service medical records support that the claimed back condition, if found, was at least as likely as not (50 percent or greater probability) incurred in or caused by the treated back condition that occurred while on active duty.” The examiner opined that the claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness, providing the following rationale, “He had a significant back injury before entering the service. This was prior to service related injury. The symptoms of that injury had cleared. His claimed back condition is not a direct result of the service related injury. The claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness.” In an April 2015 VA examination report regarding his claimed posttraumatic stress disorder, the Veteran reported that he was able to do household chores but that he might have some knee, hip, or back pain in doing so, and that when he is driving, he has to stop and move around a little bit. He also reported that it hurts him to walk or stand for long due to the knee, hip, and back pain. In a September 2015 Notice of Disagreement (NOD), the Veteran reported that he strained his back in service and has had chronic back pain since that time. After reviewing the Veteran’s claims file, in a February 2017 VA medical opinion, a VA examiner, a medical doctor, was asked to provide an opinion as to the following: (a) “Did the Veteran’s current low back problems clearly and unmistakably exist prior to service?” and (b) “If so, please provide an opinion as to whether it can [be] concluded with clear and unmistakable certainty that the preexisting low back did not undergo a permanent worsening during service beyond that which would be due to the natural progression of the condition.” As to question (a), the examiner responded, “No. The veteran has clear objective evidence of current degenerative arthritis of the lumbar spine on xray. It is reported in medical note in 1985 that xrays were normal. He suffered back strain at age 16 and again in 1985. The strain at age 16 was resolved at the time of entrance physical exam in 1967. Back strain again in 1985 is successfully treated with physical therapy. Copious private medical records between 2003 and 2016 contain no complaints, treatment or diagnosis of [a] back condition, no evidence of chronicity. The degenerative changes of the lumbar spine are incidentally seen on a hip xray and are consistent with aging, this being the most likely source of the veteran’s current low back condition.” The examiner indicated that a response to question (b) was not applicable given the response to question (a). In a March 2017 VA Form 9, the Veteran reported that he strained his back in service and has had chronic back pain since that time. In a December 2017 private treatment record, on physical examination of the back, the provider noted, “No bony tenderness over the cervical, thoracic, or lumbar spine. Movement of the major joints normal.” In a March 2018 private treatment record, the Veteran did not endorse back pain on review of the musculoskeletal system. In April 2019, the Veteran testified before the undersigned Veterans Law Judge at a videoconference hearing. He reported, “Prior to service, I was out --I’m estimating I was 15 years old…I went out to visit with my cousin in California. In my cousin’s swimming pool in the backyard, I dove backwards off the diving board. I did it incorrectly. I didn’t bend my knees. And I really wrenched something in my back. So I hit the water, and I just really felt paralyzed. I managed to regain the feeling and swim up and get out of the pool. Being 15, it --I was pretty resilient as far as injuries at that point, and fearless as well. I came back home. The back bothered me. My mom and dad sent me to an osteopath, I believe, doctor. He realigned my back. And it improved. It got better to the point where I was able to go through the rest of high school, competing in sports, basketball, track, high-jump hurdles. It didn’t slow me down, and it didn’t injure me and impair me in any way. And I went into service, years later, and I enlisted in ’68, and passed through the physical. Went through basic training, with, you know, six to eight weeks of the physical training and conditioning there. No problems. No back aches.” He later emphasized that he “managed to get all through high school and college without any back troubles” and that “[n]othing reoccurred.” The Veteran further testified, “Prior to going to Vietnam, and that was --that would have been during --after October ’70 before October ’71. Prior to going to Vietnam, I did have some back strain. And my wife, [name], works in X-ray, and she said, you should probably get that looked at. Okay. So I went to a local doctor. And he said, I think there’s something there. I think there’s tissue. No X-ray --the X-rays don’t show anything. And he was about ready to start me in some treatment program. But then I told him, well, can I get the treatment done before I go to Vietnam? I got my orders. And he said, what? He said, you’re in service? I’m sorry. I can’t help you. And he was afraid I was going to use the back injury to not go to Vietnam.” See April 2019 Board hearing transcript. The Veteran also testified, “It wasn’t until afterwards, where I reinjured my back. And the one time I remember well --because I’m searching my memory as to the date and what I did at the time…I was in Vietnam, and I told this to the doctor that gave me the exam. I said --and I was dealing with four Vietnamese contractors that didn’t want to pick up concrete posts that were --had pipes in it. So they were removing these misplaced concrete pipes and posts. And they were on a strike. Basically, they just went on a strike. I kept them kidding them, in my rote English-Vietnamese language. And I said, it’s nothing. You can pick those up and put them in this truck, which had backed up. And so I grabbed one of these posts, and I picked it up. As I twisted my back to throw it in the truck, and I pulled something in my back. But of course, here I am in the center of the show for the Vietnamese. I managed to get them all working together. Took four of them to pick up the rest of them, and they got the job done. But it was a stupid thing for me to do, to just pick it up and to show my bravado and get them working again...That’s the one incident that I remember clearly. I was in Vietnam. I stretched my back muscles. And I didn’t go to any doctor there. I have --I don’t have any records I can remember or any treatment.” See April 2019 Board hearing transcript. The Veteran reported that his current back pain is the same type of pain and in the same location as the pain he had in Vietnam and after jumping backward off the diving board prior to service. He testified, “It’s just something wrong with the muscles back in the low back. And if I bend over at all --like, I was weeding the garden--when I straighten up, my muscles are all tight and tense, and it’s painful…It’s misalignment, and it’s tight muscles that are pulling it into misalignment. The right person can straighten it out, and it goes away. And I’m good to start again and not make a mistake with the back. It’s a weakness. I work around it, you know. But when I’m in pain, it’s just --hinders me a lot.” The Veteran indicated that his back pain impacts range of motion, stating, “walking, standing a long time is very --all of a sudden my back is just a knot, sort of like a charley horse. You put your foot or your leg in that position, and that charley horse will come back. And I would describe it that way.” He reported that the onset of his back problems was in service and that they have continued ever since. See April 2019 Board hearing transcript. On review, the Board finds that service connection for a lumbar spine disability is warranted. At the outset, the Board finds that the presumption of soundness has not been rebutted. As indicated, the Veteran has a currently diagnosed lumbar spine disability. While a May 1967 Report of Medical History is available from the Veteran’s initial period of active duty, there is no concurrent Report of Medical Examination, and in an April 2015 letter, VA determined that any additional STRs from the Veteran’s active service between 1968 and 1971 were unavailable. Therefore, VA has a heightened duty to consider the application benefit-of-the-doubt rule. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Notably, the Veteran denied recurrent back pain in the May 1967 Report of Medical Examination. The record also contains a July 1982 Report of Medical Examination related to the Veteran’s later period of active duty. Although the Veteran endorsed recurrent back pain in a July 1982 Report of Medical History, and the examiner wrote, “Back pain, consultation at McClellan AFB, CA, no treatment, not chronic, not incapacitating” in the July 1982 Report of Medical Examination, a lay report of recurrent back pain and a history of preservice existence of conditions recorded at the time of examination does not establish that a lumbar spine disability was “noted” at service entrance, particularly since the July 1982 examiner indicated that the Veteran’s spine was normal upon clinical evaluation. Thus, the presumption of soundness attaches, which shifts the burden to the government to rebut the presumption by clear and unmistakable evidence that the Veteran’s disability was both preexisting and not aggravated by service. In this case, the Board finds there is no clear and unmistakable evidence that the Veteran’s disability preexisted service. Even though the Veteran testified during the April 2019 Board hearing that the pain he currently experienced was in the same location as the pain he experienced after his injury jumping backward off the diving board prior to service, he competently and credibly reported that his pre-service back injury completely resolved after an osteopath realigned his back, allowing him “to get all through high school and college without any back troubles,” and that he did not have any reoccurrences until about 1970. This is further supported by the fact that the Veteran did not endorse recurrent back pain in the May 1967 Report of Medical History on service entrance. The Veteran’s lay reports are also corroborated by the April 2015 and February 2017 VA medical opinions. In pertinent part, the April 2015 VA examiner opined, “He had a significant back injury before entering the service. This was prior to service related injury. The symptoms of that injury had cleared.” (emphasis added). Most significantly, the February 2017 VA examiner opined that the Veteran’s current low back problems did not clearly and unmistakably exist prior to service, reasoning, in pertinent part, “He suffered back strain at age 16 and again in 1985. The strain at age 16 was resolved at the time of entrance physical exam in 1967.” (emphasis added). The Board finds the April 2015 and February 2017 VA medical opinions highly probative on the question of whether the Veteran’s disability preexisted service, as the opinions were rendered by medical doctors who reviewed the Veteran’s claims file and gave due consideration to the Veteran’s competent lay reports of his back pain symptoms. Thus, as the government has failed to rebut the presumption of soundness, the Board will proceed with analysis of the Veteran’s claim as one for direct service connection. The Board finds that the evidence is at least in equipoise as to whether the Veteran’s current lumbar spine disability had its onset during active service. First, the Board finds highly probative the Veteran’s reports of recurrent back pain symptoms both during and since separation from active service. The Veteran is competent to report observable back pain symptoms, and he consistently reported that he had multiple episodes of back strain during service and that the same symptoms, in the same location, have continued ever since. See April 2015 VA examination report; September 2015 NOD; March 2017 VA Form 9; April 2019 Board hearing transcript. Furthermore, STRs show that the Veteran complained of and received treatment for recurrent back pain during active service, and the Board finds it significant that the April 2015 VA examiner characterized the Veteran’s diagnosis as chronic lumbar strain and listed the date of diagnosis as 1985, which was during the Veteran’s active service. See July 1982 Reports of Medical History and Medical Examination; February 1985 private treatment records; March 1986 Report of Medical History; February 1987 STR; April 1990 Report of Medical History; March 1995 Report of Medical History; April 2015 VA examination report. The Board acknowledges that in some post-service treatment records, the Veteran did not endorse back pain, and that providers did not note issues with range of motion or tenderness of the spine. See private treatment records dated February 2006 to March 2018. However, these occasional denials of back symptoms do not negate the Veteran’s claim. Indeed, the Veteran has competently reported that his back pain is recurrent (as opposed to constant), manifested in this way during service, and continued to be triggered by the same types of activities after service; namely, bending forward and lifting. See February 1985 private treatment record; April 2015 VA examination report; April 2019 Board hearing transcript. Second, the Board finds the April 2015 and February 2017 VA medical opinions inadequate as to the question of direct service connection. The April 2015 VA medical opinion was conclusory and provided no explanation as to why the Veteran’s back condition “is not a direct result of the service related injury.” Additionally, the February 2017 VA medical opinion, to the extent it offered an opinion as to direct service connection, improperly disregarded the Veteran’s competent lay reports of back pain since service, finding “no evidence of chronicity” because “[c]opious private medical records between 2003 and 2016 contain no complaints, treatment or diagnosis of [a] back condition,” and noting that the degenerative changes shown on the June 2014 private radiology report “are consistent with aging, this being the most likely source of the veteran’s current low back condition.” The Board finds this rationale to be incomplete in light of Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006), which holds that a Veteran’s lay statements of symptomatology need not be corroborated by contemporaneous medical records to constitute competent evidence. Third, the Board notes that, given the above, there is no adequate medical opinion of record regarding the etiology of the Veteran’s lumbar spine disability. While a lay person is not always competent to relate past symptoms to a current diagnosis, in this case it is within the competence of the lay Veteran, and the lay adjudicator, to reach that conclusion based upon the overall factual picture including the length of time and the observable nature of back pain symptoms. See Kahana, 24 Vet. App. at 438. (Continued on the next page)   Accordingly, after resolution of all reasonable doubt in the Veteran’s favor, the Board finds that his lumbar spine disability had its onset during active service. The appeal is therefore granted. S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. M. Gill, 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.