Citation Nr: 20024177 Decision Date: 04/08/20 Archive Date: 04/08/20 DOCKET NO. 19-10 019 DATE: April 8, 2020 ORDER Entitlement to service connection for hepatitis C is denied. Entitlement to an increased rating greater than 20 percent prior to October 29, 2018, for degenerative disc disease at L2-L3, L3-L4, L4-L5, and L5-S1, is denied. Entitlement to an increased rating greater than 40 percent from October 29, 2018, for degenerative disc disease at L2-L3, L3-L4, L4-L5, and L5-S1, is denied. Entitlement to an initial rating of 20 percent, but not higher, prior to October 29, 2018, for radiculopathy, left lower extremity sciatic nerve, is granted. Entitlement to an initial rating greater than 20 percent from October 29, 2018, for radiculopathy, left lower extremity sciatic nerve, is denied. Entitlement to an initial rating of 20 percent, but not higher, for radiculopathy, right lower extremity sciatic nerve, is granted. Entitlement to an initial rating greater than 10 percent for right knee, degenerative joint disease with limited flexion and painful motion, is denied. Entitlement to an initial rating greater than 10 percent for left knee, degenerative joint disease with limited flexion and painful motion, is denied. Entitlement to an increased rating greater than 10 percent for right knee instability, status post arthrotomy, is denied. Entitlement to an increased rating greater than 10 percent for left knee instability, status post arthrotomy, is denied. Entitlement to a 30 percent rating prior to October 29, 2018, for surgical (painful) scars, both knees, is granted, subject to the laws and regulations controlling the payment of monetary benefits. Entitlement to an initial rating greater than 30 percent for surgical (painful) scars, both knees, is denied. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his hepatitis C was incurred in service. 2. Prior to October 29, 2018, the Veteran’s degenerative disc disease at L2-3, L3-4, L4-5, and L5-S1 was manifested by pain, limited forward flexion greater than 30 degrees, and no ankylosis of the spine. 3. From October 29, 2018, the Veteran’s degenerative disc disease at L2-3, L3-4, L4-5, and L5-S1 is not manifested by ankylosis of the spine. 4. Prior to October 29, 2018, the Veteran’s left lower extremity radiculopathy was manifested by symptoms more consistent with moderate, incomplete paralysis of the sciatic nerve. 5. From October 29, 2018, the Veteran’s left lower extremity radiculopathy is manifested by moderate, incomplete paralysis of the sciatic nerve. 6. The Veteran’s right lower extremity radiculopathy is manifested by symptoms more consistent with moderate, incomplete paralysis of the sciatic nerve. 7. The Veteran’s right knee disabilities are manifested by pain, stiffness, “locking,” swelling, and noncompensable limited motion. 8. The Veteran’s right knee disabilities are manifested by pain, stiffness, “locking,” swelling, and noncompensable limited motion. 9. Affording the Veteran the benefit of the doubt, throughout the appellate time period the Veteran’s surgical (painful) scars, both knees, are manifested by 6 painful scars that are not unstable or 144 square inches (929 square centimeters) or greater. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hepatitis C have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for entitlement to an increase rating greater than 20 percent prior to October 29, 2018, for degenerative disc disease at L2-L3, L3-L4, L4-L5, and L5-S1 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. 3. The criteria for entitlement to an increase rating greater than 40 percent from October 29, 2018, for degenerative disc disease at L2-L3, L3-L4, L4-L5, and L5-S1 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.71a, DC 5242. 4. Prior to October 29, 2018, the criteria for entitlement to an increased rating of 20 percent, but not higher for radiculopathy, left lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.124a, DC 8620. 5. From October 29, 2018, the criteria for entitlement to an increased rating greater than 20 percent for radiculopathy, left lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.124a, DC 8520. 6. The criteria for entitlement to an increased rating of 20 percent, but not higher, for radiculopathy, right lower extremity, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.124a, DC 8620. 7. The criteria for an initial rating greater than 10 percent for right knee, degenerative joint disease with limited flexion and painful motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5010-5260. 8. The criteria for an initial rating greater than 10 percent for left knee, degenerative joint disease with limited flexion and painful motion have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5010-5260. 9. The criteria for an increased rating greater than 10 percent for right knee instability, status post arthrotomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 10. The criteria for an increased rating greater than 10 percent for left knee instability, status post arthrotomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5257. 11. For the period prior to October 29, 2018, the criteria for a 30 percent rating for surgical (painful) scars, both knees, has been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7804. 12. For the entire appellate time period, the criteria for a rating greater than 30 percent for surgical (painful) scars, both knees, has not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from April 1966 to August 1970 and from October 1970 to June 1996. As to the increased rating claims for the low back, left lower extremity radiculopathy, and surgical scars of the bilateral knees, a February 2019 rating decision granted entitlement to increased ratings for these disabilities, each effective October 29, 2018. As the foregoing increased ratings did not represent complete grants of benefits for the claimed disabilities, the issues remain on appeal (both prior and subsequent to October 29, 2018) and the issues have been adjusted accordingly above and addressed below. The February 2019 rating decision also granted separate noncompensable ratings for scars to the right and left knee. The Veteran has not expressed disagreement with the assignment of service connection or rating assigned, and the Board does not consider those issues to be in appellate status at this time. In addition, the Board recognizes that the issue of entitlement to a total disability rating based on individual unemployability (TDIU) has been raised by the Veteran during the appellate time period of the increased rating claims currently before the Board. Entitlement to TDIU was most recently denied in a December 2019 rating decision. The Veteran has not expressed disagreement with that determination or otherwise raised the issue of entitlement to TDIU with respect to the increased rating claims on appeal since that time. In any case, the TDIU issue was adjudicated under the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This appeals process differs from the appeals process under which the current claims are adjudicated, and, for all the foregoing reasons, the Board does not have jurisdiction over the issue of entitlement to TDIU at this time. Finally, the January 2020 submission from the Veteran’s representative indicated that increased ratings were warranted for the disabilities on appeal because all had “become worse.” The representative did not cite lay or medical evidence to support the contention. As there has been no evidence to establish worsening of the disabilities since the last VA examinations of those disabilities, the Board finds no basis for remanding the claims for a more current VA examination. As such, the claims may be adjudicated at this time. Service Connection 1. Entitlement to service connection for hepatitis C Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C. §§ 1110, 1131 (2012). To establish a right to compensation for a present disability, a Veteran must show: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. 38 C.F.R. § 3.303(a); see also Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). The Veteran contends that his current hepatitis C was caused by in-service airgun inoculations and/or other specific incidents in service. The file includes a June 2004 VA memorandum titled, “Relationship Between Immunization with Jet Injectors and Hepatitis C Infection as it Relates to Service Connection.” The memorandum noted that there had been no documented cases of hepatitis C being transmitted by an airgun transmission. Ten percent of acute hepatitis C cases and 30 percent of chronic hepatitis C cases had unknown causes. The memorandum noted that transmission could have occurred from “blood-contaminated cuts or wounds, contaminated medical equipment or multi-dose vials of medications.” As such, the memorandum concluded that the large majority of hepatitis C infections could be accounted for by known modes of transmission, primarily transfusion of blood products before 1992, and injection drug use. “Despite the lack of any scientific evidence to documented transmission of [hepatitis C] with airgun injectors, it is biologically possible. It is essential that the report upon which the determination of service connection is made includes a full discussion of all modes of transmission, and a rationale as to why the examiner believes the airgun was the source of the veteran’s hepatitis C.” In support of his claim, the Veteran submitted an April 2013 Hepatitis Disability Benefits Questionnaire (DBQ). The examiner noted a diagnosis of hepatitis C in October 2010. The Veteran was noted to have chronic hepatitis C in the early stages of liver injury. The examiner noted that the hepatitis C was “Possibly acquired during time while on active duty. Clinical [history] supports risk factor exposure during this time.” In a January 2014 statement, the Veteran discussed how he was diagnosed with hepatitis C in 2010. The diagnosing physician opined “that I contacted Hepatitis C, many years ago in a time frame that coincides with my 30 years of military service. The medical history of this disease reflects that it can lay dormant for many years and that [there] was no test for hepatitis C until 1992.” The Veteran indicated that the first time he could have been exposed to hepatitis C was in 1966 during boot camp when two of his teeth were removed and neither the dentist nor assistants wore gloves and utilized reusable equipment. They also did not disinfect anything between treatments. In addition, the Veteran received multiple shots and vaccinations from air injector guns, multi dose vials, and various types of needles. The Veteran witnessed shipmates ahead of him in line for shots with blood running down their arms. There was a lot of blood involved in these injections and the corpsmen did not wear gloves. In October 1972, the Veteran got blood all over his hands and arms from a fellow service member who had been involved in an aircraft crash on the flight deck. In 1995, the Veteran had both knees operated on at the Naval Hospital in Jacksonville, Florida. During that time, his IV was changed and a corpsman came out of another operating room to staunch the blood flow from the original IV site. The Veteran wondered whether that corpsman had come from another patient who could have had hepatitis C. The Veteran also submitted photographs showing lines of service members receiving vaccinations using an airgun and that the treatment providers were not wearing gloves. The Veteran was afforded a VA examination in June 2014. The examiner noted a diagnosis of hepatitis C since 2010 and that the disability had been discovered as the result of a routine colorectal screening examination. The Veteran was being treated with antiviral medication. He had been asymptomatic at the time of diagnosis and currently experienced fatigue as a side effect of the antiviral treatment. Following examination, the examiner was unable to provide an opinion as to whether the hepatitis C was incurred in or caused by service, to include air gun inoculations. The rationale noted that review of medical literature demonstrated that there was no test that could determine when a virion (virus particle) entered the body. The Center for Disease Control (CDC) recommended that everyone born between 1945 and 1965 should be tested for hepatitis C. The Veteran cited plausible risk factors for transmission during service, but review of the service treatment records showed they were silent for objective evidence. Moreover, liver function tests (LFTs) were completely normal in 1979, 1986, and 2003. The first elevations were noted on testing in 2010. Risk factors after service were unknown, but the Veteran did not have a history of transfusions, tattoos, or intravenous drug use. In an October 2014 submission, the Veteran discussed how the VA examiner stated that it appeared he had not had hepatitis C until 2010 because prior LFTs had been normal. The Veteran, however, stated that his treating physicians had stated “your LFT could be normal the whole time you have Hepatitis C.” In addition, he cited to an online VA cite discussing LFTs that specifically noted, “even if the results of a liver panel are normal, you might still have hepatitis C.” Affording the Veteran the benefit of the doubt, the Board finds that his hepatitis C had its onset in service. In that regard, the Board acknowledges that the April 2013 and June 2014 examination reports do not provide a clear and definitive opinion that the hepatitis C was due to in-service airgun inoculations; however, both opinions indicate the possibility or plausibility of such a finding and indicate that the Veteran did not have any risk factors outside of service that could account for the hepatitis C transmission. In addition, the Veteran has reported that his private treatment provider indicated that the Veteran contract hepatitis C years ago and during a time period consistent with his active service. It is unclear whether that treatment provider is the same as the April 2013 examiner, but the Board finds the Veteran’s reports of what a physician told him to be credible, as the statement is entirely consistent with the other evidence of record. As the record indicates that the Veteran’s incurrence of hepatitis C occurred many years prior to his diagnosis in 2010, his history of 30 years of active service from 1966 to 1996, the medically acknowledged in-service risk factors, and the absence of any known risk factors outside of service, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s hepatitis C had its onset during his service as the result of airgun inoculation or some other medically-recognized risk factor. As such, entitlement to service connection for hepatitis C is warranted. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2019). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2019). VA must consider whether the Veteran is entitled to “staged” ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2019). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 2. Entitlement to an increased rating greater than 20 percent prior to October 29, 2018, for degenerative disc disease at L2-L3, L3-L4, L4-L5, and L5-S1 3. Entitlement to an increased rating greater than 40 percent from October 29, 2018, for degenerative disc disease at L2-L3, L3-L4, L4-L5, and L5-S1 4. Entitlement to an initial rating greater than 10 percent prior to October 29, 2018, for radiculopathy, left lower extremity sciatic nerve 5. Entitlement to an initial rating greater than 20 percent from October 29, 2018, for radiculopathy, left lower extremity sciatic nerve 6. Entitlement to an initial rating greater than 10 percent for radiculopathy, right lower extremity sciatic nerve The Veteran currently is in receipt of a 20 percent rating prior to October 29, 2018, and a 40 percent rating from that date for degenerative disc disease of the lumbosacral spine under DC 5242. He received a 10 percent rating prior to October 29, 2018, and a 20 percent rating from that date for left lower extremity radiculopathy under DC 8520. In addition, the Veteran has a separate 10 percent rating under DC 8520 for right lower extremity radiculopathy. The Veteran contends that the current ratings do not accurately reflect the severity of his condition. Treatment records document ongoing complaints of low back pain with radiation into the extremities. The Veteran was afforded a VA examination in June 2014. In a later June 2014 statement, the Veteran contended that significant information in the examination report was inaccurate, as range of motion testing was not accomplished with a goniometer and no repetitive motion testing was performed. As such, the Board will not consider the results from that examination report. In August 2014, the Veteran reported low back pain for several months that was worsened by rest and somewhat relieved by movement. There was morning stiffness that lasted for 4 to 5 hours. The Veteran had paraspinal muscle spasms of the entire spine. In September 2014, the Veteran was noted to be in moderate to severe pain and was scheduled for trigger point injections. In March 2020, the Veteran submitted an October 2014 report of electrodiagnostic studies obtained by a private neurologist. The Board is not competent to interpret the data, but the neurologist assessed the results as “suggestive of moderate to severe L5 radiculopathy.” The neurologist referred to the common peroneal and femoral systems. The Veteran was afforded a VA examination in January 2015. The Veteran’s condition was essentially the same since his last examination in June 2014. The Veteran had constant back pain that was worse in the morning and improved with activity. The Veteran had numbness on the top and bottom of the left foot, with a needle sensation on the ball of the foot. The right foot had similar symptoms for the last 2 years. There also was a constant burning sensation on the lateral left thigh, which began in the buttock and could extend to the calf. There were similar intermittent symptoms down the right thigh and occasionally into the right calf as well. The more he used his back the better it felt. There were flare-ups when the Veteran could “hardly do anything.” The flare-ups occurred every 2 to 3 months, were severe in nature, and lasted for 2 weeks. There was functional loss in that he was unable to pick up his grandchildren or pick up garbage cans. The Veteran could not drive for very long. Thoracolumbar range of motion testing showed forward flexion to 35 degrees, extension to 15 degree, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, and right and left lateral rotation to 30 degrees. There was pain noted on examination that caused functional loss. The Veteran did not have muscle spasms and while he had guarding, it did not result in abnormal gait or abnormal spinal contour. Muscle strength was normal, but there was muscle atrophy in the left calf. Reflexes were normal and sensation in the right lower extremity was normal, but in the left lower extremity there was decreased sensation in the upper anterior thigh, thigh / knee, and lower leg / ankle. Other sensory findings showed stocking loss to pin and cold and decreased vibration and position senses in the feet consistent with peripheral neuropathy. There was evidence of radiculopathy. The left lower extremity had moderate constant pain and paresthesias and/or dysesthesias. The right lower extremity had moderate intermittent pain. The examiner indicated that the severity of the radiculopathy was mild in both the right and left lower extremity. There was no ankylosis of the spine or neurogenic abnormalities. The Veteran had intervertebral disc syndrome, but it had not required bed rest prescribed by a physician in the previous 12 months. X-rays documented arthritis. There was no thoracic vertebral fracture with loss of 50 percent or more of height. The low back disability affected the Veteran’s ability to work in that he could not perform bending duties and could not lift or move heavy objects. The examiner indicated that the bilateral radiculopathy was mild in nature and could not be classified as moderate or severe, since it was based on subjective complaints without objective findings on examination. In July 2016, the Veteran reported low back pain with radiation down the legs. This had been ongoing for a year and a half. The Veteran was taking Motrin and Aleve and was happy with the control of the pain they afforded. There was decreased sensation in the lower extremities, but muscle strength and reflexes were normal. The Veteran’s gait also was normal. During an October 2016 VA muscle examination, the Veteran had normal lower extremity muscle strength, but there was muscle atrophy in the bilateral calves. The actual measurements indicated that atrophy was in the left calf only. The atrophy was attributed to the Veteran’s service-connected low back disability and service connection for left leg muscle atrophy subsequently was granted. In March 2020, the Veteran submitted the results of electromagnetic testing obtained by the private neurologist in October 2016. The neurologist again referred to the peroneal and femoral distribution systems and assessed the results as moderate but worse than in 2014. The Veteran was afforded a VA back examination on October 29, 2018. The Veteran had diagnoses of intervertebral disc syndrome, degenerative disc disease, and bilateral lower extremity radiculopathy. The Veteran reported gradually worsening back pain and that surgery was being considered. Flare-ups constituted intermittent episodes of sharp pain. There was functional loss due to a decreased capacity for bending, lifting, balancing, and problems getting out of bed. Range of motion testing showed forward flexion to 30 degrees, extension to 15 degrees, and right and left lateral flexion and rotation to 10 degrees each. There was pain noted on examination in each of the arcs of motion. There was no further loss of motion following repetitive motion testing. The examination was not during a flare-up. There was no guarding or muscle spasms of the thoracolumbar spine. Muscle strength was 4 out of 5 in the bilateral lower extremities and there was no evidence of muscle atrophy. Reflexes were normal. Sensation in the right lower extremity was normal, but was decreased in the left upper anterior thigh, thigh/knee, lower leg / ankle, and foot / toes. Straight leg raising testing was positive bilaterally. The Veteran had severe, constant pain, paresthesias and/or dysesthesias, and numbness in the right and left lower extremity. The examiner concluded that the Veteran’s right lower extremity was mild, and the left lower extremity radiculopathy was moderate. There was no ankylosis of the spine. There were no other neurologic abnormalities. The Veteran’s intervertebral disc syndrome did not result in episodes requiring bed rest prescribed by a physician. The Veteran made regular use of a cane. The Veteran was afforded a VA peripheral nerves examination on October 29, 2018. The Veteran had severe, constant pain, paresthesias and/or dysesthesias, and numbness in the right and left lower extremity. In addition, the top of the left foot above the toes was very painful. Muscle strength was 4 out of 5 in the bilateral lower extremities, but there was no evidence of muscle atrophy. Reflexes were normal. Sensation in the right lower extremity was normal, but was decreased in the left upper anterior thigh, thigh/knee, lower leg / ankle, and foot / toes. There were no trophic changes and the Veteran’s gait was normal. The Veteran had mild, incomplete paralysis of the right sciatic nerve and moderate, incomplete paralysis of the left sciatic nerve. Degenerative Disc Disease of the Lumbosacral Spine The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Notes appended to the rating formula for diseases and injuries of the spine specify that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id., Note (2). Provided, however, that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion generally recognized by VA. Id., Note (3). Further, the term “combined range of motion” refers to “the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation”; provided, however, that the aforementioned normal ranges of motion for each component of spinal motion, as recognized by VA, are the maximum that can be used for calculation of the combined range of motion, and each range of motion measurement is to be rounded to the nearest five degrees. Id., Notes (2) and (4). Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disabilities of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, id, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51,455 (August 27, 2003) (Supplementary Information). Spine conditions rated under DC 5243, for intervertebral disc syndrome, may be rated alternatively based on incapacitating episodes. The criteria provide for a 10 percent rating where intervertebral disc syndrome is manifested with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating was warranted where incapacitating episodes have a total duration of at least two weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted where incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months. “Incapacitating episodes” was defined in Note (1) as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) also allowed the Veteran to be rated separately for musculoskeletal and neurological manifestations under appropriate DCs if it would result in a higher combined evaluation for the disability. Prior to October 29, 2018 As to the applicability of a higher rating greater than 20 percent for the period prior to October 29, 2018, the Board finds that a higher rating is not warranted under DC 5242. The January 2015 VA examination showed forward flexion to 35 degrees and combined ranges of motion of 145 degrees. As such, a rating greater than 20 percent under DC 5242 is not warranted prior to October 29, 2018. Similarly, the Veteran is not entitled to a greater rating under any other DC. While the Veteran does have intervertebral disc syndrome, he did not require bed rest prescribed by a physician. As such, a separate or higher rating under DC 5243 is not applicable. Under DC 5003 degenerative arthritis, when established by x-ray findings, will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003. In this case, x-rays have shown arthritis of the spine, but the Veteran’s 20 percent rating prior to October 29, 2018, under DC 5242, as discussed above, is based on pain on movement and a separate rating under DC 5003 would be for the same symptomatology. As separate ratings may not be assigned for the same symptomatology, a separate 10 percent rating under DC 5003 for the Veteran’s painful motion is not warranted. Separate ratings for neurological manifestations may be warranted under 38 C.F.R. § 4.124a if supported by objective medical evidence. In this regard, the Veteran is separately service connected for right and left lower extremity radiculopathy, which will be discussed in greater detail below. As noted, Note 1 of the General Rating Formula for Diseases and Injuries of the Spine also provides for evaluating any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. In this case, the Veteran consistently has denied related bowel or bladder problems. Similarly, the Veteran does not have erectile dysfunction attributable to his service-connected low back disability. As such, a separate rating for such problems is not warranted. The Board notes that the Veteran’s functional loss was considered, as the medical evidence shows that the Veteran has consistently complained of pain in the back. 38 C.F.R. §§ 4.40, 4.45. The evidence indicates that the Veteran has had ranges of motion on testing that are consistent with the current rating assigned for the period prior to October 29, 2018. Repetitive motion testing has not shown any increased loss of motion on repetition to the point that a higher rating would be warranted and there is no evidence of muscle atrophy. The current rating assigned contemplates the Veteran’s pain and associated difficulties. The current evaluation prior to October 29, 2018, contemplates limitation of flexion to 31 degrees. In order to warrant a higher evaluation flexion must be functionally limited to 60 degrees or less. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Neither the lay nor medical evidence establishes that flexion is functionally limited to 30 degrees or less due to any factor prior to October 29, 2018. As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. Accordingly, the preponderance of the evidence is against assignment of an increased disability rating greater than 20 percent under DC 5242 for the Veteran’s service-connected low back disability prior to October 29, 2018. The Board has considered whether further staged ratings were appropriate in the present case but concludes that the current rating most closely reflects the Veteran’s disability and that staged ratings are not warranted for any period on appeal prior to October 29, 2018. From October 29, 2018 As to the applicability of a higher rating greater than 40 percent for the period from October 29, 2018, the Board finds that a higher rating is not warranted under DC 5242. The October 2018 VA examination showed forward flexion to 30 degrees, but no ankylosis of the spine. As such, a rating greater than 40 percent under DC 5242 is not warranted from October 29, 2018. The Board recognizes that the worsening forward flexion document during the October 29, 2018, examination likely did not have its onset on that day, but as there is no clear date as to when such a worsening occurred, the Board finds that the assigned effective date of October 29, 2018, is the most appropriate date. Similarly, the Veteran is not entitled to a greater rating under any other DC. While the Veteran does have intervertebral disc syndrome, he has not required bed rest prescribed by a physician. As such, a separate or higher rating under DC 5243 is not applicable. As discussed above, a higher or separate rating under DC 5003 would be for the same symptomatology as the rating under DC 5242 and is not permitted. As with the period prior to October 29, 2018, the Veteran has consistently denied related bowel or bladder problems and does not have erectile dysfunction attributable to his service-connected low back disability. The Board notes that the Veteran’s functional loss was considered, as the medical evidence shows that the Veteran has consistently complained of pain in the back. 38 C.F.R. §§ 4.40, 4.45. The evidence indicates that the Veteran has had ranges of motion on testing that are consistent with the current rating assigned for the period from October 29, 2018. Repetitive motion testing has not shown any increased loss of motion on repetition to the point that a higher rating would be warranted and there is no evidence of muscle atrophy. The current rating assigned contemplates the Veteran’s pain and associated difficulties. The current evaluation from October 29, 2018, contemplates limitation of flexion to 30 degrees or less. In order to warrant a higher evaluation there must be ankylosis of the spine and there is no lay or medical evidence of such a condition. See DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. Accordingly, the preponderance of the evidence is against assignment of an increased disability rating greater than 40 percent under DC 5242 for the Veteran’s service-connected low back disability from October 29, 2018. The Board has considered whether further staged ratings were appropriate in the present case but concludes that the current rating most closely reflects the Veteran’s disability and that staged ratings are not warranted for any period on appeal from October 29, 2018. Right and Left Lower Extremity Radiculopathy Based on a relatively equal balance of evidence whether the disabilities are best assessed as mild or moderate, the Board concludes that a rating of 20 percent, but not higher, for moderate incomplete paralysis is warranted for the right and left lower extremity radiculopathy for the entire period. As to the right lower extremity, the Veteran has consistently reported pain, burning, and numbness in the right lower extremity. Despite these reports, VA examiners have consistently found that the right lower extremity radiculopathy is no more than mild in nature. Such findings are consistent with the testing evidence that has shown normal reflexes in the right lower extremity and no more than slightly decreased muscle strength of 4 out of 5. There have been findings of sensory loss in the feet, which has been attributed to peripheral neuropathy, rather than the service-connected radiculopathy. The Board acknowledges the July 2016 notation of decreased sensation in the lower extremities, but such symptoms clearly are not constant, as both the January 2015 and October 2018 VA examinations found no evidence of decreased sensation in the right lower extremity. In contrast, the private neurologist assessed the bilateral radiculopathy as moderate in October 2014 and again in October 2016 based on electrodiagnostic studies. As such, the Board finds these symptoms consistent with no more than moderate, incomplete paralysis of the right lower extremity for the entire period on appeal. As to the left lower extremity, for the period prior to October 29, 2018, the Veteran’s left lower extremity radiculopathy was manifested by moderate, constant pain, burning, and numbness. There was noted loss of sensation in the left lower extremity, but muscle strength and reflexes were normal. In contrast, the private neurologist assessed the bilateral radiculopathy as moderate in October 2014 and again in October 2016 based on electrodiagnostic studies. The Board finds such symptoms more closely analogous to moderate, incomplete paralysis of the sciatic nerve. The evidence from October 29, 2018, demonstrates a worsening of the Veteran’s left lower extremity condition. The Veteran reported constant and severe pain, burning, and numbness. Unlike the right lower extremity, there also was evidence of sensory loss in the lower extremities. There was slightly decreased muscle strength of 4 out of 5, but no muscle atrophy. To the extent that the Veteran had muscle atrophy of the left calf, the Veteran is separately service connected for that disability. The Board finds that these symptoms most closely approximate moderate, incomplete paralysis of the sciatic nerve. The Board recognizes that the worsening symptoms demonstrated in the October 29, 2018, VA examination likely did not have their onset on that date; however, there is no clear date of onset of the worsening symptoms and, as such, the Board finds that the effective date for the increased rating of 20 percent is most appropriately assigned as of October 29, 2018. Ratings for both right and left radiculopathy greater than 20 percent are not warranted as the weight of evidence does not indicate assessments of moderately severe symptoms. Both VA and private examiners cited studies and clinical observations and assessed the impairment as moderate which is consistent with the Veteran’s description of his symptoms and mobility limitations. 7. Entitlement to an initial rating greater than 10 percent for right knee, degenerative joint disease with limited flexion and painful motion 8. Entitlement to an initial rating greater than 10 percent for left knee, degenerative joint disease with limited flexion and painful motion 9.Entitlement to an increased rating greater than 10 percent for right knee instability, status post arthrotomy 10. Entitlement to an increased rating greater than 10 percent for left knee instability, status post arthrotomy 11. Entitlement to an initial compensable rating prior to October 29, 2018, for surgical (painful) scars, both knees 12. Entitlement to an initial rating greater than 30 percent from October 29, 2018, for surgical (painful) scars, both knees The Veteran has separate 10 percent ratings for degenerative joint disease and instability of the right and left knees under DCs 5010-5260 and 5257, respectively. As to the rating under DC 5010-5260, the Board notes that hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27 (2019). In addition, he has a noncompensable rating prior to October 29, 2018, and a 30 percent rating from that date for associated surgical scars to the bilateral knees under DC 7804. The Veteran contends that the current ratings do not accurately reflect the severity of his condition. DC 5003 provides that degenerative arthritis that is established by X-ray findings will be rated on the basis of limitation of motion under the appropriate DCs for the specific joint or joints involved. (DC 5010 provides that traumatic arthritis is to be rated under DC 5003.) When there is some limitation of motion of the specific joint or joints involved that is noncompensable (0 percent) under the appropriate DCs, DC 5003 provides a rating of 10 percent for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. When there is limitation of motion of the specific joint or joints that is compensable (10 percent or higher) under the appropriate DCs, the compensable limitation of motion should be rated under the appropriate DCs for the specific joint or joints involved. 38 C.F.R. § 4.71a. The general rating schedules for limitation of motion of the knee are 38 C.F.R. § 4.71a, DCs 5260 and 5261. Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Under DC 5260, a 10 percent disability rating is warranted for flexion limited to 45 degrees. A 20 percent disability rating is assigned for flexion limited to 30 degrees; and a 30 percent disability rating is assigned for flexion limited to 15 degrees. Under DC 5261, a 10 percent disability rating is warranted for extension limited to 10 degrees. A 20 percent disability rating is assigned for extension limited to 15 degrees. A 30 percent disability rating is assigned for extension limited to 20 degrees. A 40 percent disability rating is assigned for extension limited to 30 degrees; and a 50 percent disability rating is assigned for extension limited to 45 degrees. See 38 C.F.R. § 4.71a. In addition, separate ratings may be assigned for compensable limitation of both flexion and extension. See VAOPGCPREC 09-04 (separate ratings may be granted based on limitation of flexion (DC 5260) and limitation of extension (DC 5261) of the same knee joint). DC 5257 provides for the assignment of a 10 percent rating when there is slight recurrent subluxation or lateral instability of a knee; a 20 percent rating when there is moderate recurrent subluxation or lateral instability; and a 30 percent evaluation for severe knee impairment with recurrent subluxation or lateral instability. Id. Subluxation of the patella is “incomplete or partial dislocation of the knee cap.” Rykhus v. Brown, 6 Veteran. App. 354, 358 (1993) (citing Dorland's Illustrated Medical Dictionary at 1241, 1599 (27th edition 1988)). The Board observes that the words “slight,” “moderate,” and “severe” as used in the various DCs are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation. Three or four scars that are unstable or painful warrant a 20 percent evaluation. Note (1) for that code defines an unstable scar as one where, for any reason, there is frequent loss of skin covering over the scar. Note (2) provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. A May 2013 VA treatment record indicated that the Veteran had been diagnosed with right knee swelling in April 2013 and that he was seeing a civilian rheumatologist. In March 2014, the Veteran reported a multiple year history of knee swelling, but that he felt that the knees were better. Treatment otherwise document ongoing problems with tenderness, crepitus, and chronic synovial changes. Treatment included steroid injections. The Veteran was afforded a VA examination in June 2014. In a later June 2014 statement, the Veteran contended that significant information in the examination report was inaccurate, as no repetitive motion testing was performed and that the examination had focused only on the left knee because the right knee was swollen and painful. As such, the Board will not consider the results from that examination report. During an October 2016 VA muscle examination, the Veteran had normal bilateral knee muscle strength. The Veteran was afforded a VA knee examination in October 2018. The examiner noted degenerative joint disease of the bilateral knees. The Veteran reported worsening knee symptoms, with pain, swelling, and stiffness. Further surgery was being discussed. There were flare-ups of the knees, described as intermittent episodes of sharp pain, swelling, and stiffness. There was functional loss due to decreased capacity for prolonged standing, walking, climbing stairs, and balancing. Right knee range of motion was from 0 to 120 degrees and left knee motion was from 0 to 125 degrees. There was pain that caused functional loss on both flexion and extension of each knee, and there also was objective tenderness to palpation of each knee. There was no evidence of pain on weight bearing. There was crepitus. There was no further loss of motion on repetitive motion testing. Muscle strength was slightly decreased at 4 out of 5 in each knee, but there was no muscle atrophy. There was no ankylosis or history of subluxation, lateral instability, or effusion. There was no evidence joint instability in either knee on testing. There was no history of recurrent patellar dislocation. There was a past history of arthroscopic meniscal surgery on both knees, with residuals of pain, decreased motion, and intermittent swelling. The Veteran used a cane. On October 29, 2018, the Veteran was afforded a VA scar examination. The Veteran had noted surgical scars to both knees from 1970. There were 5 or more painful scars, as there was tenderness to palpation at the arthroscopic scar sites of both knees. None of the scars were unstable or due to burns. There were 3 scars on the right knee, each measuring 0.5 by 0.5 centimeters (cm). There was mild tenderness to palpation of each of the scars. There were 3 scars on the left knee that had the same symptoms and measurements as the right knee scars. The total approximate area was 0.75 square centimeters for both the right and left knees. The Veteran’s scars impacted occupational functioning in that they limited prolonged standing, walking, or balancing. Right and Left Knee Degenerative Joint Disease and Instability The Board finds that a rating greater than 10 percent for the right or left knee degenerative joint disease is not warranted under DCs 5003, 5260, or 5261 for any period on appeal. The Veteran’s limited flexion is no worse than 120 degrees in either knee, and there is no limitation of extension. As above, a separate rating under DC 5003 would be for the same symptoms as a rating under DC 5260. Thus, there is no basis for a higher rating under DCs 5003, 5260, or 5261. As to the Veteran’s 10 percent ratings for right and left knee instability under DC 5257, at no time during the appellate time period has her knee instability resulted in greater than mild impairment. Testing results have not shown evidence of lateral instability on multiple tests. There is no lay evidence of greater than mild lateral instability of either knee. In addition, no higher or alternative rating under a different DC can be applied for either knee. The Board notes that there are other DCs relating to knee disorders, such as DC 5256 (ankylosis of the knee), DC 5258 (dislocated semilunar cartilage), DC 5259 (removal of semilunar cartilage, symptomatic), DC 5262 (impairment of the tibia and fibula), and DC 5263 (for genu recurvatum). The Veteran’s right and left knee disabilities are not manifested by nonunion or malunion of the tibia and fibula, or genu recurvatum. Ankylosis is “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). The Veteran is able to move his right and left knees, albeit with some limitation of motion, so they are clearly not ankylosed. The Board recognizes that the Veteran has undergone arthroscopic surgery on the menisci of both knees. The Board has considered the holding of the Court of Appeals for Veterans Claims in Lyles v. Shulkin, 29 Vet. App. 107 (2017) that evaluation of a knee disability under DCs 5257 or 5261 or both did not, as a matter of law, preclude a separate evaluation of a meniscal disability of the same knee pursuant to DC 5258 or 5259. The Court explained that “entitlement to a separate evaluation in a given case depends on whether the manifestations of disability for which a separate evaluation is being sought have already been compensated by an assigned evaluation under a different DC.” In Lyles, the Court also advised that “where a certain manifestation of a disability has not been compensated via an assigned evaluation under a particular DC, evaluation of that manifestation under another DC would not constitute pyramiding.” In this case, the evidence does not document episodes of locking in either knee. To the extent that the Veteran is experiencing pain in the right knee that affects his range of motion, the current ratings for the right and left knee under DC 5010-5260 compensate such symptoms. There is no lay or medical evidence to suggest that the Veteran is experiencing symptoms unique to the removed meniscal / semilunar cartilage that are not compensated for in the current rating. As such, higher or separate ratings under DCs 5258 or 5259 are not warranted. The Board notes that the Veteran’s functional loss was considered, as the medical evidence shows that the Veteran has consistently complained of pain in the left and right knees. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). However, the limitation of motion documented in the medical records as resulting from pain is already contemplated in the disability ratings currently assigned. Objective testing consistently has shown no more than slightly decreased muscle strength of 4 out of 5 in both knees, with no evidence of muscle atrophy. Thus, despite the Veteran’s reported problems associated with the right and left knees, he clearly is able to use the knees in close to a normal manner, to include duration of use, and, in fact, does so. See 38 C.F.R. § 4.40 (noting that, “A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like.”). There is otherwise no evidence of significant impairment of motor skills, muscle function, or strength attributable to the Veteran’s right or left knee disabilities. Consequently, the Board finds that a higher disability rating based on functional loss is not warranted. Surgical (painful) scars, both knees As discussed above, the Veteran has pointed out a number of problems with the June 2014 VA examination. Although that examination report indicated that the Veteran’s surgical scars were not painful, the October 2018 VA examination report found that the Veteran had 6 painful surgical scars. The June 2014 examination report did not discuss the number of scars and only indicated that they were not painful, unstable, or larger than 39 square centimeters. There is nothing to suggest that the painful scars noted during the October 2018 VA examination had their onset at the time of examination and given the numerous problems documented with the June 2014 examination report, the Board will afford the Veteran the benefit of the doubt and presume that his scars were painful for the entirety of the appellate time period. As such, the Board finds that entitlement to a 30 percent rating under DC 7804 is warranted for the entire appellate time period. A rating greater than 30 percent for the Veteran’s surgical scars is not warranted for any period on appeal. The assigned 30 percent disability rating is the highest rating available under DC 7804, given the absence of any lay or medical evidence that any of the scars are unstable. DCs 7800 and 7801 are the only scar DCs that afford ratings higher than 30 percent. DC 7800 is not applicable because that DC applies only to scars of the head, face, or neck. A 40 percent rating under DC 7801 is warranted for scars of 144 square inches or greater, which is not the case here. As such, a higher rating under another scar DC is not warranted. There are no other DCs that would be applicable in this case. (continued next page) In conclusion, the Board finds that the Veteran’s painful surgical scars warrant a 30 percent rating under DC 7804 for the entire appellate time period, but that a higher rating is not warranted for any period on appeal. J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. J. Houbeck, 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.