Citation Nr: 20052736 Decision Date: 08/07/20 Archive Date: 08/07/20 DOCKET NO. 16-15 013 DATE: August 7, 2020 ORDER Entitlement to a total disability rating based on individual unemployability, (TDIU), on an extraschedular basis is granted. REFERRED A claim of entitlement to service connection for a spine disability and a neck disability was submitted by the Veteran in August 2020 and is referred to the Agency of Original Jurisdiction for adjudication. FINDINGS OF FACT 1. Service connection is in effect at 40 percent for status post right acromioclavicular joint separation and at 20 percent for status post left ankle avulsion fracture with degenerative joint disease. The Veteran’s combined evaluation is currently 50 percent. 2. The Veteran does not meet the schedular criteria for consideration for a TDIU under 38 C.F.R. § 4.16(a). 3. The evidence of record is at least in equipoise as to whether the Veteran’s service-connected disabilities, alone or in combination, preclude him from securing or maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU, on an extraschedular basis, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps June 1991 to July 1995 during the Gulf War. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded the matter for TDIU consideration on an extraschedular basis to the Agency of Original Jurisdiction (AOJ) in December 2019. The AOJ referred this claim to the Director, Compensation Service, who provided an opinion on this matter in December 2019. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326. As part of its duty to assist, VA is required to make reasonable efforts to assist a Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C. § 5103A(b), 38 C.F.R. § 3.159(c). That assistance may include providing the Veteran with a medical examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). The Board’s obligation to read filings in a liberal manner does not require that the Board search the record and address procedural arguments when the claimant fails to raise them. Id. The Board has reviewed all of the evidence of record. The Board finds that the duties to notify and assist have been fulfilled. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the 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). A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran’s claim was remanded in December 2019 to refer the claim to the Director, Compensation Service, for consideration of TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). The advisory opinion was obtained in December 2019. The Director’s opinion discussed the Veteran’s service-connected disabilities and reviewed the factors indicated in 38 C.F.R § 4.16(b). The opinion is thorough, supported by the record, and answered the questions posed. Accordingly, the Board finds that there has been substantial compliance with the Board’s remand directives. Id. Entitlement to a TDIU on an extraschedular basis is granted. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or with less disability, if certain criteria are met. 38 C.F.R. § 3.340. Where the schedular rating is less than total, a total disability rating may be assigned when the disabled person is 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 or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). To prevail on an extraschedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether one can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Substantially gainful employment is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce un-employability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, the Veteran’s service-connected disabilities are rated at 40 percent for his right shoulder and at 20 percent for his left ankle. The Veteran’s combined evaluation is currently 50 percent and is insufficient to consider TDIU on a schedular basis because although the Veteran has a disability rating of 40 percent for his right shoulder, in the case of multiple service-connected disabilities, the combined rating is not 70 percent. 38 C.F.R. § 4.16(a). Thus, the question before the Board is whether TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16(b). The Board notes initially that it is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation Service. See Bowling v. Principi, 15 Vet. App. 1 (2001). As noted above, the Board directed that the AOJ refer the Veteran’s extraschedular TDIU claim to the Director, Compensation Service, in its December 2019 remand. The AOJ referred this claim to the Director, Compensation Service, in December 2019, who provided an opinion against the claim that same month. After a review of the evidence of record, the Board finds that there is conflicting evidence regarding whether the Veteran is unable to secure substantially gainful employment solely due to his service-connected disabilities. While there is an indication of significant substantially gainful employment impairment due to the symptoms associated with the Veteran’s service-connected disorders, lay and medical evidence suggests otherwise. As such, the Board finds that the evidence is in equipoise for the Veteran’s claim of entitlement to a TDIU, on an extraschedular basis. 38 C.F.R. § 4.16(b). The Veteran’s employment history shows he performed physical labor jobs. The Veteran’s DD Form 214 shows that he is a high school graduate and his military occupational specialty was rifleman in the Marine Corps and that he received no specific military education. The Veteran has no advanced degree beyond high school. In the Veteran's application for increased rating he filed in August 2014, he indicated that he had commercial driving school training in 1996. Further review of the record reflects that the Veteran worked as driver with a construction company and other businesses from 1995 to 1998, was a manager of a restaurant from 1998 to 2002, and by July 2002, he was retied and on social security administration (“SSA”) disability. Records associated with an October 2002 Social Security Administration examination includes the Veteran’s report that he worked as a stocker cashier from 1990 to 1991. The Board finds a September 2014 VA form 21-4192 Request for employment information stating that the Veteran was terminated for filing a false back claim not substantially probative because it is unsigned and the Veteran is competent to report his symptoms and experiences. Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007). The evidence weighing against the claim includes the Veteran’s lay statements and other records regarding non-service-connected disabilities. In May 2004, the Veteran's back and mental disorder disability were considered to be severe under the Social Security Act. SSA found that the Veteran’s back presented as residuals functional capacity to lift/carry ten pounds occasionally and less than ten pounds frequently, stand/walk less than two hours in an eight hour workday, and sit less than six hours in an right hour workday with an occasional limitation climbing, balancing, stooping, kneeling, crouching, and crawling. The Veteran’s mental disability limitations presented moderate restriction of the activities of daily living, moderate difficulties in maintaining social functioning, moderate difficulties in maintaining concentration, persistence or pace. A January 2003 rating decision reflects that permanent and total disability for entitlement to non-service-connected disability pension was not established under the provisions of 38 C.F.R. § 3.321(b)(2). The Board notes that the Veteran was assigned a 10 percent evaluation for his lumbar spine condition and an evaluation of 10 percent for slightly limited motion of the cervical spine, with a combined total evaluation of 20 percent. The Board further notes the record reflects statements from the Veteran as well as medical examiner’s indicating that the Veteran is service connected for his back condition because of this rating. As the Board explains, these are two separate types of ratings. Entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(2) and a TDIU rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. Pension benefits are available for Veterans who have been determined to be permanently and totally disabled as a result of nonservice-connected disabilities. See 38 U.S.C. § 1521; 38 C.F.R. § 3.321(b)(2). A permanent and total disability rating for pension purposes on an extraschedular basis is available where the evidence establishes that a Veteran who is basically eligible fails to meet the disability requirements based on the percentage standards of the rating schedule, but is found to be unemployable by reason of his or her disabilities, age, occupational background and other related factors. For the purpose of pension, the permanence of the percentage requirements of § 4.16 is a requisite. 38 C.F.R. § 3.321(b)(2), 4.17. On the other hand, 38 C.F.R. § 4.16(b) requires a determination that a particular Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. Thus, here, the question is whether the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation. Rather, the ultimate question here is whether the Veteran is capable of performing the physical and mental acts required by employment, given his right shoulder and left ankle conditions. See Van Hoose, 4 Vet. App. at 363. In continuing the review of the evidence weighing against the claim, the Board notes that multiple VA examiners have indicated that the Veteran is not precluded from sedentary work. Also, an October 2017 treatment record reflects the examiner’s statement that in 2016, during the course of that examination, the doctor mentioned that he had a resolved right shoulder adhesive capsulitis and the right shoulder examination was normal on that date. The examiner noted that the Veteran complained of constant, burning discomfort over the lateral aspect of the right shoulder and upper shoulder. It radiates distally to about the middle of the upper arm only. Finally, in an October 2018 statement, the Veteran indicated that he is unable to work besides a few hours a week. The other evidence of record, however, indicates that the Veteran’s service-connected right shoulder and left ankle conditions present an exceptional or unusual disability picture such that the symptomatology associated with these disabilities, alone or in combination likely limit the Veteran from securing or following a substantially gainful occupation. Status post right acromioclavicular joint separation (Right Shoulder) Multiple records show the Veteran’s complaints of right shoulder pain. A May 2013 treatment record reflects that the Veteran presented with the chief complaint of neck to right upper trap to right shoulder region pain. The Veteran reported pain results in impaired functional mobility. He reported constant moderate-severe (8/10) pain at rest progressing to severe (9/10) pain with increased pain with spontaneous movement with activities of daily living, bending, lifting, twisting, and sit/stand/walk long periods. A June 2013 treatment record reflects a note that the Veteran was seen for right shoulder pain. A history notation includes a note that he had no significant symptoms related to the right shoulder until the last five to six months when he started complaining of pain when he raised his right arm above the shoulder level or put his hand behind his back. The orthopedic surgeon recommended continuance to avoid heavy lifting or prolonged work above the shoulder level for a long time. A November 2013 treatment record reflects the examiner noted that the Veteran avoids driving with right hand. A December 2013 VA examination reveals that the Veteran reported flareups. The examiner indicated that the Veteran's shoulder condition impacted his ability to work and described the impact of the shoulder condition as that the Veteran should be prophylactically precluded from heavy overhead lifts or repetitive overhead work. The record reveals that the Veteran's dominant has is his right hand. The examiner indicated that the Veteran had functional loss and/ or function impairment of his shoulder and arm, the contributing factors of which were pain on movement. His initial range of motion measurements for right shoulder flexion was 180 degrees, objective evidence of painful motion began at 160 degrees, right shoulder abduction was 180 degrees, painful motion began at 110 degrees. In a March 2016 VA right shoulder examination, the Veteran reported increased pain with raising his arm overhead, carrying a backpack and lifting weights. The examiner diagnosed the Veteran with acromioclavicular joint separation. The examiner opined that the Veteran's condition impacts his ability to work and explained that his shoulder condition would prevent physical work, but it would not impact sedentary employment. The Veteran reported functional loss and the description of that functional loss was that the Veteran avoids heavy lifting and raising his arm overhead. The Veteran's initial range of motion testing results revealed a flexion of 0 to 130 degrees, an abduction of 0 to 120 degrees, an external rotation of 0 to 85 degrees and an internal rotation of 0 to 90 degrees. The range of motion contributed to the functional loss from pain and the examiner indicated that the Veteran cannot work overhead. An April 2019 in person VA shoulder examination reveals that the examiner confirmed the diagnosis of acromioclavicular joint separation. The examiner opined that the Veteran's right shoulder disability impacts his ability to perform any type of occupational task. The examiner indicated that the range of motion itself contributes to functional loss and explained that it "precludes right arm from doing useful work due to pain which limits his willingness to move the right shoulder." The examiner explained that "Manual labor is precluded. Sedentary work OK as long as he can rest the right arm as needed because of the right hand going numb with use. The hand numbness has not been associated with the shoulder pathology." The Veteran reported that he experienced flareups and loses 50 percent further limitation of motion with a flareup of pain. He described the functional loss as “no real use of the right arm away from his body.” A May 2019 letter a doctor having performed an April 2015 examination of the Veteran. The record reflects that Veteran can occasionally lift less than 10 pounds, frequently lift less than ten pounds, stand and/ or walk, less than two hours in an eight hour workday, must periodically alternate sitting and standing to relive pain or discomfort, push and pull limited in upper extremities (shoulder and neck pain), limited in lower extremities (back pain). The doctor explained that neck pain, arm and hand pain and weakness in the hand pain require opiates for pain control. The doctor indicated that the Veteran is limited in reaching all directions (including overhead), handling (gross manipulation), fingering (fine manipulation), and feeling (skin receptors). The Board notes that in regard to the October 2017 treatment record indicating that the right shoulder condition resolved, the Board finds the preponderance of the evidence is against that finding. The March 2016 and April 2019 VA examiners both confirmed a diagnosis of acromioclavicular joint separation. Next, the Board notes that the May 2019 letter does not include credentials of the doctor. Additionally, the record is not a complete conclusion to summarize and explain the Veteran’s conditions. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 301 (2008). Therefore, the April 2015 private examination is inadequate and not probative. Id. Status post left ankle avulsion fracture with degenerative joint disease. Various records show the Veteran’s left ankle complaints. A March 2014 VA ankle examination shows that the examiner opined that the Veteran's ankle condition impacts his ability to work and described that the Veteran was in restaurant work and had to be on his feet much of the time which caused pain before the end of the day. Before that he drove eighteen wheelers and his left ankle gave out and he gave it up after three years. He then went into the restaurant business, but ankle gave out with pain before the day was over. The Veteran reported experiencing flare-ups, when walking long distances, or sudden exercise, increased pain, weakness, fatigability, and incoordination. The examiner indicated the Veteran has functional loss and/or functional impairment of the ankle of which the contributing factors are weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, disturbance of locomotion, interference with sitting, standing and weight-bearing. In a March 2016 in-person VA examination of the left ankle the Veteran reported he continued to have pain, worse on walking. The examiner opined that the Veteran's left ankle impacts his ability to perform any type of occupational task. The examiner described the functional impact as Veteran was in restaurant work and had to be on his feet much of the time which caused pain before the end of the day. His ankle condition would prevent physical work, but it would not impact sedentary employment. He reported chronic pain with ambulation and prolonged standing. He has orthotics which were somewhat helpful. The examiner indicated that the Veteran has flareups. The record shows the Veteran has functional loss described as being generally sedentary due to his ankle, avoids walking more than one fourth of a mile at a time. An April 2019 VA examination reveals the examiner conformed a diagnosis of degenerative arthritis of the left ankle. The examiner opined that the Veteran's left ankle condition impacts his ability to perform any type of occupational task (such as standing, walking, lifting, sitting, etc.). The examiner described the functional impact by stating “Labor jobs are precluded. Sedentary work OK in regard to the ankles." The examiner indicated the Veteran has flareups about once a week. The examiner indicated that the Veteran reported having functional loss of the left ankle which the Veteran described as no running or jumping. He only walks one to two blocks before he has to sit down and get the weight off the left ankle. Results of the range of motion testing revealed abnormal results of dorsiflexion 0 to 10 degrees and plantar flexion 0 to 35 degrees. The examiner indicated that the range of motion itself contributes to a functional loss. The Board notes that the Veteran was afforded a July 2020 examination for his left ankle, after the issuance of the supplemental statement of the case. While the issue of entitlement to a TDIU was not readjudicated in a new supplemental statement of the case, and the July 2020 rating decision erroneously stated that new and relevant evidence was required to reopen the claim for a TDIU, this procedural error is harmless, as the claim is being granted in full. July 2020 VA left ankle examination indicates that the examiner opined that the Veteran's left ankle disability impact his ability to perform any type of occupational task. The examiner ultimately concluded that there is a worsening of the Veteran's symptoms and no change to his diagnosis. The examiner indicated that the Veteran is limited in running, jumping, prolonged ambulation, and high impact activities. The examiner further indicated that the Veteran has limited range of motion in his left ankle with pain and weakness noted. The results of the examination revealed that the Veteran reported having functional loss or functional impairment and stated he has increased pain, is unable to walk long distances, and his left ankle gives out and causes falls. The Veteran reported having flareups. The examiner indicated that the Veteran is limited in running, jumping, prolonged ambulation and high impact activities. A close look at the SSA decision shows the Veteran’s detailed requirements of his past work experience. As a restaurant manager at he used different equipment with cooking in a which required all knowledge and skills to manage for health codes, inventory, order, write ups, nightly reports and weekly reports. It required eight hours of walking, six hours of standing, two hours of crouching and four hours of handling, grabbing or grasping big objects. He stated that he was the prep cook and day cook and headline cool. The Veteran stated that he "prepared food for up to 1000 people in a 10-hour period, heavy pots of food unloading 1000-pound trucks 3 times a week." The heaviest weight he lifted was one hundred pounds or more and the weight he frequently lifted was twenty-five pounds. As a truck driver the Veteran stated he drove big trucks, logbooks, and completed all department of transportation paperwork. The Veteran indicated that this job required him to walk one hour a day, stand two hours a day, sit five hours a day, crouch two to three hours a day when unloading the trucks and handle, grab or grasp big objects two to three hours a day. The Veteran stated that while working with the construction company he was a concrete laborer which required him to batch the concrete than pour foundations, parking lots, walls, etc. When setting aside the Veteran’s back and mental disorder conditions, the Veteran’s right shoulder and left ankle disabilities preclude him from performing the physical tasks required of these jobs. Comparing the medical evidence placing restraints on the Veteran’s ankle alone to the such jobs as a restaurant manager or driver, the Veteran is unable to stand on his ankle eight hours of the day or lift twenty-five pounds frequently. When accounting for sedentary or office positions, a look at the Veteran’s education and employment history reveals that the Veteran does not have an advanced degree and has not acquired a previous position that did not involve physical labor. In December 2019, the Director of VA Compensation and Pension Service reviewed the evidence of record and opined that the evidence fails to support that the Veteran’s service-connected disabilities, or a combination of the effects of his disabilities, prevented him from gainful employment. The Board has considered the directors decision; however, it does not seem like he/she considered the totality of the Veteran's work history and the breadth of his work experience. The Board notes opinion is not supported by sufficient rationale. While the Director determined that the evidence did not show that the Veteran is unable to obtain sedentary work, this conclusion does not adequately addresses the medical evidence from indicating that the Veteran experiences pain at rest in his shoulder as indicated in the May 2013 treatment record to the April 2019 VA examination showing a range of motion of functional loss that precludes right arm from doing useful work. Further, the opinion does not address the lack of evidence indicating that the Veteran has the work experience or training to perform sedentary work. The overall medical evidence establishes that the Veteran’s right shoulder disability and left ankle disability preclude him from performing occupational tasks of physical labor. On the other hand, the overall evidence seemingly suggests that the Veteran is and is unable to perform sedentary work. As the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, the more narrowly tailored question is whether, the Veteran can perform sedentary jobs comparable to his work experience. The Board finds that the evidence is in equipoise as to whether he can. The April 2019 VA examiner indicated that the Veteran can perform sedentary work as long as he can rest the right arm as needed because of the right hand going numb with use and the hand numbness has not been associated with the shoulder pathology. The Veteran’s right hand is ultimately not service connected. However, the May 2013 treatment record revealed the Veteran experiences shoulder pain at rest while the April 2019 examiner indicated that the Veteran’s right shoulder disability precludes him from lifting his right arm overhead, regardless of the impact on his right hand. Although the breadth of the Veteran’s work experience includes duties that he may be able to be perform in a sedentary setting, the preponderance of the evidence does not reflect that the Veteran has any experience in performing sedentary tasks without also performing physical labor. In other words, there is an indication that the breadth of the Veteran’s work skill set requires him to perform physical labor in order to complete the sedentary tasks. The Veteran does not have a degree beyond high school. Although in an October 2018 statement the Veteran indicated that he was able to work a few hours a week, the record does not reflect how long, what type of work he performed, nor the functional impairment that work had. As such, resolving all doubt in favor of the Veteran, the Board finds that an extraschedular TDIU is warranted. While the evidence does not definitely show that the Veteran is unable to work due to his service-connected disabilities, the medical evidence is at least in equipoise as to this question. The Board finds the VA examinations and medical records probative regarding the functional impact the Veteran’s service-connected disabilities have on his ability to perform daily activities, to include impairment with running, jumping, prolonged ambulation, and high impact activities of his left ankle and his right shoulder precluding his right arm from doing useful work due to pain which limits his willingness to move the right shoulder. From this, the Board notes that the Veteran is not service connected for a mental disability but infers that even if able to perform mentally, he is precluded in performing physical requirements. Although multiple VA examiners as well as the Director indicated that the Veteran can perform sedentary work, there is no indication that he can perform such sedentary acts to such a degree as would be required to maintain substantially gainful employment. There is no indication that the Veteran has the work experience or training to perform sedentary work alone, and even if so, the medical evidence reflects that he would still face limitations due to difficulty with his right shoulder precluding his right arm from doing useful work. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107. Thus, the Board finds that the evidence is at least in equipoise as to meeting the criteria for entitlement to a TDIU on an extraschedular basis, and the claim is granted. Mary E. Rude Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, 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.