Citation Nr: 20056727 Decision Date: 08/27/20 Archive Date: 08/27/20 DOCKET NO. 16-01 902 DATE: August 27, 2020 ORDER Entitlement to service connection for an acquired psychiatric disorder, diagnosed as a mood disorder, secondary to service-connected cold weather injuries for the upper and lower extremities on a causation basis, is granted. Entitlement to an initial rating in excess of 10 percent prior to October 20, 2014 for residuals of cold weather injuries, right lower extremity is denied. Entitlement to an initial rating in excess of 10 percent prior to October 20, 2014 for residuals of cold weather injuries, left lower extremity is denied. Entitlement to a 20 percent rating, but no higher, from October 20, 2014 for residuals of cold weather injuries, right lower extremity is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a 20 percent rating, but no higher, from October 20, 2014 for residuals of cold weather injuries, left lower extremity is granted, subject to controlling regulations governing the payment of monetary awards. Entitlement to a rating in excess of 30 percent from May 6, 2016, for residuals of cold weather injuries, right lower extremity is denied. Entitlement to a rating in excess of 30 percent from May 6, 2016 for residuals of cold weather injuries, left lower extremities is denied. FINDINGS OF FACT 1. The evidence is at least evenly balanced as to whether the current mood disorder is caused by the service-connected connected residuals of cold weather injuries for the upper and lower extremities. 2. Prior to October 20, 2014, the symptoms of the Veteran's right and left lower extremity residuals of cold weather injuries are productive of pain, numbness, or cold sensitivity, but do not more nearly approximate tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or X-ray abnormalities. 3. From October 20, 2014 until May 6, 2016, the symptoms of the Veteran's right and left lower extremity residuals of cold weather injuries are productive of pain, numbness, cold sensitivity, and locally impaired sensation, but do not more nearly approximate tissue loss, nail abnormalities, color changes, hyperhidrosis, or X-ray abnormalities. 4. From May 6, 2016, the symptoms of the Veteran's right and left lower extremity residuals of cold weather injuries are productive of pain, numbness, cold sensitivity, locally impaired sensation, nail abnormalities and color changes. CONCLUSIONS OF LAW 1. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for an acquired psychiatric disorder, diagnosed as a mood disorder, secondary to service-connected cold injury residuals for the upper and lower extremities on a causation basis, have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310(a). 2. Prior to October 20, 2014, the criteria for an initial rating in excess of 10 percent for residuals of cold weather injuries, right lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.104, Diagnostic Code (DC) 7122. 3. Prior to October 20, 2014, the criteria for an initial rating in excess of 10 percent for residuals of cold weather injuries, left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.104, DC 7122. 4. From October 20, 2014 until May 6, 2016, the criteria for a 20 percent rating, but no higher, for residuals of cold weather injuries, right lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.104, DC 7122. 5. From October 20, 2014 until May 6, 2016, the criteria for a 20 percent rating, but no higher, for residuals of cold weather injuries, left lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.104, DC 7122. 6. From May 6, 2016, the criteria for a rating in excess of 30 percent rating for residuals of cold weather injuries, right lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.104, DC 7122. 7. From May 6, 2016, the criteria for a rating in excess of 30 percent for residuals of cold weather injuries, left lower extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.10, 4.104, DC 7122. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1977 to August 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from May 2014 and January 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2018, the Veteran testified during a Board hearing before the undersigned Veterans Law Judge at the local RO. A hearing transcript is of record. In March 2019, the Board granted service connection cold weather injuries, bilateral hands, and remanded service connection for an acquired psychiatric disorder and higher initial ratings for residuals of cold weather injuries, left and right lower extremities for additional development. The remanded issues have returned to the Board following completion of the requested development. During the November 2018 hearing, the Veteran stated that he experienced bruxism and headaches as part of his service-connected residuals of cold weather injuries, right and left lower extremities. The issues of entitlement to service connection for bruxism and headaches have therefore been raised by the evidence of record. These matters are referred to the agency of original jurisdiction for appropriate action, to include informing the Veteran and his representative that a claim for benefits must be submitted on the application form prescribed by the Secretary of VA and providing such forms. See 38 C.F.R. § 3.150(a) (providing for furnishing of appropriate application form upon request for VA benefits); 38 C.F.R. § 20.904(b) (continuing to provide for Board referral of unadjudicated claims). Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The claim was remanded by the Board in March 2019 to provide the Veteran an opportunity to submit private medical records and receive updated VA cold injury and psychiatric examinations. The agency of original jurisdiction (AOJ) sent a November 2019 letter to the Veteran requesting that he provide authorization for the release of private medical records or alternatively submit any private medical records in his possession directly to VA. It enclosed appropriate authorization forms. The Veteran did not respond. The AOJ obtained updated VA treatment records and furnished November 2019 VA examinations for the instant claims. The additional development substantially complied with the above remand instructions from the Board. There is no contention to the contrary and these claims are therefore ready for appellate review. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disease or injury. 38 C.F.R. § 3.310. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b). In a November 2015 VA medical opinion, a VA physician attributed the Veteran’s lower extremity neurological disturbances to a B12 deficiency. In April 2016, VA obtained an addendum medical opinion from a different physician concerning the lower extremity cold injury residuals. The physician opined that it was not possible to distinguish the lower extremity neurological disturbances attributable to cold injury residuals, B12 deficiency and diabetes induced peripheral neuropathy. In September 2016, the Veteran had a VA mental disorder examination with a psychologist. The Veteran objected to this examination. However, there is favorable information from this report that merits discussion. See Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012). As relevant, the psychologist diagnosed mood disorder, unspecified in accordance with the 5th edition of the Diagnostic and Statistical Manual of Medical Disorders (5th Ed. 2013) (DSM-5). The occupational and social impairment was consistent with mild or transient symptoms. The Veteran described his symptoms as irritability due to constant pain and social isolation. The psychologist listed depressed mood, chronic sleep impairment, and disturbances of motivation and mood as symptoms. He furnished a negative medical opinion for the mood disorder being secondary to cold injury residuals. He cited the alternative explanation for pain cited by the 2015 physician. Although not entirely clear, it appears the VA psychologist is referencing the November 2015 VA physician who attributed the Veteran’s lower extremity neurological disturbances to a B12 deficiency instead of service-connected residuals of cold weather injuries affecting all extremities. At the November 2018 Board hearing, the Veteran reported having significant depression symptoms associated with pain from his service-connected cold injury residuals. May 2019 VA treatment records noted depressive symptoms related to chronic pain and work. In a July 2019 VA treatment note, the Veteran’s depression was related to the recent death of his son. In November 2019, the Veteran had a mental disorders examination. The psychologist determined that no diagnosis was warranted in accordance with the DSM-5. She recited four separate negative depression screens and the July 2019 report noting depression associated with the death of a son. The only positive depression screen occurred in May 2019. She recited the social and occupational history. The Veteran reported current symptoms of irritable mood and unrestful sleep that had recently improved with a continuous positive airway pressure (CPAP) machine. He also reported low energy and severe pain in his fingers and toes that was related to his bad moods. For symptoms, the psychologist noted depressed mood and disturbances of motivation and mood. Behavioral observations included findings that the Veteran appeared fully credible and had good insight into his symptoms. The psychologist concluded that the Veteran did not appear to meet the diagnostic criteria for a psychological diagnosis at this time. She cited the mental disorder definition as syndrome characterized by clinically significant disturbance in an individual’s cognition, emotion regulation or behavior that reflects a dysfunction in the psychological, biological or developmental processes underlying mental functioning. They are usually associated with significant distress or disability in important activities. She stated that an expectable or culturally approved response for a common stressor is not a mental disorder. Meanwhile, a clinician may encounter an individual who symptoms do not meet all the criteria for a mental disorder but who nevertheless demonstrate a clear need for treatment. She assessed that while the Veteran had a depressed mood, he did not meet the diagnostic criteria. In November 2019, a VA physician assistant (P.A.) stated that while it was likely the Veteran’s uncontrolled diabetes and Vitamin B12 deficiency played a large role in the worsening of peripheral neuropathy symptoms, it was not possible to separate the degree to which each of those factors contributed to the current disability picture. For the following reasons, the Board finds that service connection for a mood disorder on a secondary, causation, basis is warranted. As to the current disability element, there is conflicting evidence about whether the Veteran has a current psychiatric diagnosis. A mental disorder diagnosis conforming to the DSM-5 criteria must be shown to establish a current disability. Martinez-Bodon v. Wilkie, No. 18-3721 slip op. 8-10 (August 11, 2020); 38 C.F.R. §§ 4.125(a), 4.130. Here, the September 2016 VA psychologist’s mood disorder diagnosis conforms to the DSM-5 and establishes a current disability. See id. Although the September 2016 VA psychologist referred to the inadequate November 2015 VA medical opinion, this error does not impact the validity of the DSM-5 mood disorder diagnosis. See Monzingo, 26 Vet. App. at 107. Meanwhile, the November 2019 VA psychologist does not consider the prior mood disorder diagnosis and implies that any symptoms are attributable the recent death stressor. Her opinion is not persuasive to show absence of DSM-5 mental disorder diagnosis for the entire appeals period. McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In conclusion, the Board finds that the mood disorder diagnosis from the September 2016 VA examination satisfies the current disability element for this claim. As to a secondary causation relationship to service-connected residuals of cold weather injuries affecting all extremities, the Board finds the evidence to be at least evenly balanced. The Board finds it appropriate to attribute all physical pain symptoms to service-connected residuals of cold weather injuries affecting all extremities. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when it is not possible to separate the effects of the service-connected and non-service-connected disabilities, the benefit of the doubt doctrine described in 38 C.F.R. § 3.102 dictates that such signs and symptoms be attributed to the service-connected disability or disabilities). Although non-service-connected medical disorders are also contributing to the Veteran’s physical pain, two medical professionals reported that these non-service-connected disabilities cannot be distinguished from service-connected residuals of cold weather injuries. (April 2016 VA medical opinion; November 2019 VA Cold Injury Residuals examination report). The September 2016 VA psychologist found that the mood disorder was related to physical pain from non-service-connected medical disorders but did not consider the above assessments that it was not possible to distinguish the amount of pain attributable to service and non-service disabilities. Thus, the Board interprets the September 2016 VA medical opinion relating the current mood disorder to physical pain as providing medical support to the claim as the cause of physical pain is related to service-connected disabilities. Id. In sum, the evidence is at least evenly balanced as to whether the Veteran’s current mood disorder is caused by the service-connected residuals of cold weather injuries affecting all extremities. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for acquired psychiatric disorder, diagnosed as a mood disorder, on a secondary, causation, basis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Ratings for residuals of cold weather injuries, right and left lower extremities The Veteran's residuals of cold weather injury of right and left lower extremities is rated under DC 7122. 38 C.F.R. § 4.104. DC 7122 provides a 10 percent rating for arthralgia or other pain, numbness or cold sensitivity. A 20 percent rating is warranted for arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities such as osteoporosis, subarticular punched out lesions, or osteoarthritis in the affected parts. A maximum 30 percent rating is warranted for arthralgia or other pain, numbness, or cold sensitivity plus two or more of the following manifestations in the affected parts: tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities such as osteoporosis, subarticular punched out lesions, or osteoarthritis. Id. Note (1) to DC 7122 states that amputations of fingers or toes and complications such as squamous cell carcinoma at the site of a cold injury scar or peripheral neuropathy are to be separately evaluated under other codes. Other disabilities that have been diagnosed as the residual effects of a cold injury, such as Raynaud's phenomenon, muscle atrophy, etc., also are to be separately evaluated unless they are used to support an evaluation under DC 7122. Note (2) provides that each affected part is to be evaluated separately. Id. September 2013 VA treatment records showed that the Veteran had an orthotic consultation due to diabetes. His toenails were assessed as in good condition. In May 2014, the Veteran had a VA cold injury residuals examination. The physician assessed cold sensitivity of both feet but did not note tissue loss, nail abnormality, color changes, locally impaired sensation or hyperhidrosis. The Veteran reported cold sensitivity of both feet when the temperatures were below 40 degrees. The physician listed cold sensitivity of the bilateral feet as the presenting symptom. X-rays were not obtained. On October 20, 2014, the Veteran described having constant pins, needle and burning type pain. He could not work when the temperatures were under 40 degrees. He had to wear heated socks. He considered leaving his job due to cold injury residual pain. In June 2015, the Veteran stated that he had constant extremity pain due to cold injury residuals. He had cold intolerance and used heated socks. It interfered with work since he had snow removal duties. In November 2015, the Veteran had a VA cold injury residuals examination. The Board notes that the Veteran objected to the examining physician as being biased. Due to the Veteran’s objection, the Board will not consider the November 2015 VA cold injury residuals examination report. November 2015 VA primary care records included complaints about neuropathic pain associated with frostbite residuals. A pain clinic referral was requested. Clinical testing revealed a Vitamin B12 deficiency and the clinician commented that this condition explained the neuropathic pain. January 2016 VA pain clinic records listed the Veteran’s diagnosis as neuropathy. His medical history was notable for diabetes mellitus (DM), hypertension, and Vitamin B12 deficiency. He presented with severe escalating neuropathic pain in his bilateral toes and fingertips. It originated from a 1978 severe frostbite episode. The symptoms had worsened within the past 5 years. The pain was intense. It was not responsive to gabapentin or B12 supplement. It was less intense in the summer. He also reported severe leg cramps at night. Lower extremity sensation was intact to light touch but there was impaired vibration sensation for bilateral great toes and ankles. Both feet had impaired pinprick sensation. Bilateral ankle reflexes were diminished. The clinician recommended increased gabapentin and applying lidocaine ointment to the feet. April 2016 VA pain clinic records showed that the Veteran had some improvement with increased gabapentin, but associated fatigue inhibited his activities. He continued to report severe pain and associated severe sleep disturbance. No pertinent clinical findings were reported for the lower extremities. The clinician determined that the increased gabapentin doses were intolerable due to fatigue. She prescribed Cymbalta. In an April 2016 VA medical opinion, a VA physician found that it was not possible to separate the effects of cold injury, B12 deficiency and peripheral neuropathy on the Veteran’s current level of disability. At the July 2016 RO hearing, the Veteran reported that his cold injury residuals interfered with work since he could not work in cold environments and received disability accomodation. He had constant pain, described as prickling and numbness, in his feet. He regularly lost toenails and had his toenails surgically removed. In April 2017, the Veteran had VA cold injury residuals examination with the same physician conducting the November 2015 VA examination. Again, the Veteran objected to the examining physician as being biased. Due to the Veteran’s objection, the Board will not consider the April 2017 VA cold injury residuals examination report. July 2018 VA Pain Clinic records showed that the Veteran had private treatment for pain. He took Lyrica with some success but continued to experience severe pain. He wanted to try VA pain management therapy again. At the November 2018 Board hearing, the Veteran described his lower extremity cold residual disability as toe swelling causing a cripple-like gait, peeling skin on his feet, missing toenails, joint pain and heat/ cold intolerance. The pain also interfered with his sleep. He also had “all my teeth removed” from grinding his teeth due to pain. Then, he described headaches associated with teeth grinding. In November 2019, the Veteran had a VA examination with a PA who had not previously examined him. The Veteran reported that his cold sensitivity had worsened. His toenails regularly turned black and fell off. He had no feeling in his toes. For the right and left feet, the PA reported arthralgia, cold sensitivity, color changes, numbness, locally impaired sensation and nail abnormalities. She cited subjective reports of cold sensitivity, painful pinprick sensations and numbness in all toes bilaterally. Monofilament examination revealed diminished light touch. Lower extremity pulses were normal but all toes were pale and cool to touch with delayed capillary refill. Right hallux nail had sub-ungual discoloration consistent with hematoma but no visible sign of trauma. All toenails were slightly thickened and yellowed at distal edges of nail plates. Surrounding skin was dry with normal hair distribution on toes and no evidence of chronic fungal infections of skin or web spaces. X-rays of both feet did not show osteoarthritis, osteoporosis, or subarticular punched out lesions. The remaining function of the lower extremities was not such that amputation with prosthesis would equally serve the Veteran. Functional impact was described as inability to tolerate extremely cold work environments, irritability due to chronic neuropathic pain, difficulty with prolonged standing or prolonged walking, particularly on very hard or uneven surfaces. The PA noted the additional medical conditions of DM and Vitamin B12 deficiency but was unable to separate their effects. Analysis For the below stated reasons, the Board finds that 20 percent ratings, but no higher, from October 20, 2014 for residuals of cold weather injuries, right and left lower extremity are warranted. The Board will discuss the evidence from each period with the applicable rating criteria below. (a) Prior to October 20, 2014 During this period, the Veteran has 10 percent initial ratings for residuals of cold weather injuries for each lower extremity under DC 7122. 38 C.F.R. § 4.104, DC 7122. The next higher, 20 percent rating, under DC 7122 requires arthralgia or other pain, numbness, or cold sensitivity plus tissue loss, nail abnormalities, color changes, locally impaired sensation, hyperhidrosis, or x-ray abnormalities such as osteoporosis, subarticular punched out lesions, or osteoarthritis in the affected parts. Id. Prior to October 20, 2014, the record shows that the Veteran had cold sensitivity in both feet. (See September 2013 VA treatment record, May 2014 VA examination report). The May 2014 VA physician reported that additional symptoms of tissue loss, nail abnormalities, color changes, locally impaired sensation, or hyperhidrosis were not found. Although X-rays were not taken, the November 2019 X-ray report for each leg revealed findings within normal limits and there is no evidence suggesting a related bone abnormality for either lower extremity to suggest osteoporosis, subarticular punched out lesions, or osteoarthritis during this period. Then, the Veteran’s reports were limited to cold sensitivity. From this period, there are no medical or lay reports suggesting additional cold injury residual symptoms beyond cold sensitivity for either lower extremity. (b) From October 20, 2014 until May 6, 2016 On October 20, 2014, the Veteran reported that he had “pins - needle - burning” sensations in his feet. The Board interprets this report as asserting locally impaired sensation for each lower extremity. 38 C.F.R. § 4.104, DC 7122. This symptom, in addition to the previously established cold sensitivity, results in lower extremity cold injury residuals more nearly approximating the 20 percent criteria under DC 7122 for each lower extremity. Id. It cannot be stated with certainty as to precisely when this additional manifestation occurred. 38 C.F.R. § 3.400. However, October 20, 2014 is the earliest factually ascertainable evidence of locally impaired sensation of both lower extremities. See 38 U.S.C. § 5110(b)(3) ("The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability occurred[.]"); 38 C.F.R. § 3.400(o)(2) (awarding an increased evaluation for disability compensation as of the "[e]arliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred"). Thus, the Board finds that on October 20, 2014, the Veteran’s residuals of cold weather injuries, right and left lower extremities more nearly approximated the 20 percent rating criteria under DC 7122. See also Swain v. McDonald, 27 Vet. App. 219, 224 (2015) ("effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested"); 38 C.F.R. § 4.104, DC 7122. The evidence prior to May 6, 2016 does not reference tissue loss, nail abnormalities, color changes, hyperhidrosis or X-ray abnormalities to more nearly approximate the criteria for a 30 percent rating for cold weather injury in either lower extremity. Id. (c) From May 6, 2016 During this period, the Veteran has maximum 30 percent schedular ratings for residuals of cold weather injuries for each lower extremity under DC 7122. 38 C.F.R. § 4.104, DC 7122. The November 2019 VA cold injury examination report confirmed the presence of multiple symptoms affecting the feet to include arthralgia, cold sensitivity, color changes, numbness, locally impaired sensation and nail abnormalities. Nonetheless, a 30 percent rating is the maximum schedular rating and higher ratings are not available under DC 7122. Id. For the foregoing reasons, the Board finds that the residuals of cold weather injuries, right and left lower extremities more nearly approximated the 20 percent rating criteria, but no higher, from October 20, 2014. As the preponderance of the evidence is against ratings in excess of those instantly assigned for either lower extremity, the benefit of the doubt doctrine is not for application and such portions of these claims must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Additional rating considerations Although the residuals of cold weather injuries, right and left lower extremity pose some occupational impairment, the Veteran continued to be gainfully employed throughout the appeals period. (October 2014 Veteran statement; July 2016 RO hearing; November 2018 Board hearing; November 2019 VA Mental Disorders examination report). Entitlement to a total disability rating based upon individual unemployability (TDIU) is not for further consideration. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board notes that the Veteran has reported insomnia, teeth grinding and headaches as symptoms associated with service-connected cold weather injury, right and left lower extremity. See November 2018 Board hearing transcript. These symptoms are not contemplated under DC 7122. 38 C.F.R. § 4.104, DC 7122. For insomnia, the newly service-connected acquired psychiatric disorder reasonably encompasses the insomnia symptoms. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. For the headaches and teeth grinding referenced at the November 2018 Board hearing, the Board has referred these issues for further development. These symptoms are contemplated by the rating schedule and if these symptoms are confirmed to be part of the cold weather injury disability picture, appropriate schedular rating(s) will be assigned by analogy and fully reflect the symptomatology of the Veteran’s service-connected cold weather injury disability picture. 38 C.F.R. § 4.20.  For these reasons, the Board finds that the Veteran’s disability picture is fully contemplated by the rating schedule and further consideration of an extraschedular rating is not warranted at this time. Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. D. Simpson, 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.