Citation Nr: 21001591 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 18-38 978 DATE: January 11, 2021 ORDER Entitlement to an initial disability rating in excess of 30 percent for the Veteran’s service-connected adjustment disorder with mixed anxiety and depression (hereafter referred to as acquired psychiatric disability) is denied. FINDING OF FACT The most probative evidence establishes that the symptoms associated with the Veteran’s service-connected acquired psychiatric disability most closely approximate occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation) for the entire appellate period. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 30 percent for the Veteran’s service-connected acquired psychiatric disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1989 to July 1992. This matter comes before the Board of Veteran’s Appeals (Board) on appeal from a November 2016 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). In the July 2018 VA form 9, Substantive Appeal, the Veteran declined an optional Board hearing. See also December 2019 VA form 21-4138. The undersigned Veterans Law Judge has been assigned to adjudicate this matter pursuant to 38 C.F.R. § 20.106(a) (formerly 19.3(a)). In July 2018, the Veteran was informed of his right to opt-into the Rapid Appeals Modernization Program (RAMP) and have his claim adjudicated under the modernized appeal system created by the Veterans Appeals Improvement and Modernization Act of 2017. In July 2018, the Veteran filed a RAMP Opt-In election and requested that his claim be removed from the legacy appeal system and adjudicated under the Higher-Level Review option of the modernized appeal system. Before this opt-in request was associated with the electronic claims file, the RO issued a legacy Statement of the Case and the Veteran filed a timely VA form 9, Substantive Appeal. By submitting both a RAMP Opt-In election and a VA form 9, the record was ambiguous as to whether the Veteran wished to proceed under the legacy appeal system or whether he intended to have his claims adjudicated under the modernized appeal system. On November 2, 2020, the Board mailed the Veteran a letter seeking clarification regarding this ambiguity. In this letter, the Veteran was granted 60 days to respond and participate in the RAMP. The Veteran was informed “If [the Board does] not hear from you within 60 days from the date of this letter, we will assume that you would like your appeal to remain on the Board’s docket and it will be processed in the legacy appeals system.” More than 60 days has passed since the mailing of this letter, and the Veteran has not provided a response within the allotted time. Accordingly, the Board shall proceed with adjudication of the Veteran’s claim under the legacy appeal system. In July 2020, the Veteran waived initial RO consideration of relevant VA-generated evidence received since the claim was last adjudicated by the RO in the July 2018 Statement of the Case. 38 C.F.R. § 20.1305(c) (formerly 20.1304(c)). All other relevant evidence was submitted by the Veteran without a request for initial RO consideration. 38 U.S.C. § 7105(e) (2018). Accordingly, the Board may proceed with its appellate review of the matter. The Veteran has not raised any issues with VA’s duty to notify or VA’s duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. Under 38 U.S.C. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 128-29 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake, supra. The Veteran is currently receiving an initial 30 percent rating for his service-connected acquired psychiatric disability under 38 C.F.R. § 4.130, Diagnostic Code 9440. He seeks a higher initial disability rating for the entire appellate period. The issue in this appeal is whether the symptoms associated with the Veteran’s service-connected acquired psychiatric disability have caused the level of impairment required for a disability rating of 50 percent or higher during the appellate period. Under the General Formula for Mental Disorders (General Formula), the Board must conduct a “holistic analysis” that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). Under Diagnostic Code 9440, a 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and-long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A higher 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A total 100 percent rating is assigned when symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name cause total occupational and social impairment. Following a complete review of the appellate record, the Board finds that the Veteran’s psychiatric symptoms have not caused the level of impairment required for a disability rating of 50 percent or higher during the appellate period. In consideration of the VA treatment records, the private disability benefits questionnaire (DBQ) and brief submitted in June 2017, the October 2016 VA examination, and the May 2018 VA examination, the most probative evidence establishes that the Veteran’s service-connected acquired psychiatric disability has been most closely approximated by the symptoms associated with a 30 percent rating under Diagnostic Code 9440, 38 C.F.R. § 4.130, and have resulted in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks throughout the appellate period. The Veteran attended a VA examination in October 2016 to assess the nature and severity of his service-connected acquired psychiatric disability. Following an in-person assessment and review of the available evidence of record, the VA examiner diagnosed the Veteran with adjustment disorder with mixed anxiety and depression under the DSM-5 criteria. The Veteran reported symptoms such as sleep impairment, becoming upset, persistent rumination regarding his stomach issues, racing thoughts, fatigue, anhedonia, anxiety, and depression. He denied persistent irritability, feelings of helplessness, negative thoughts, appetite impairment, and suicidal/homicidal ideation. Regarding social/employment history, the Veteran reported that he was divorced with 4 children (one son passed away at age 7) and was living with his mother, with good family support. Following service, the Veteran worked in management positions in the restaurant industry. The VA examiner conducted a mental status examination and found that the Veteran’s cognitive functioning was within normal limits; he was oriented to person, place, time, and situation; his mood was euthymic with congruent affect; he was alert and cooperative and tracked conversation well; he exhibited concrete thought processes with thought content focused on responding to the questions; he had good eye contact, normal speech rate and volume, and motor movements within normal limits; his gait was steady, he was appropriately groomed, and he denied suicidal/homicidal ideations and audio/visual hallucinations. The VA examiner administered the Beck Depression Inventory test and his scores correlated to moderate depression. The VA examiner stated the Veteran’s most active symptoms were depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The VA examiner opined that the Veteran’s acquired psychiatric symptoms most closely represented occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. In June 2017, the Veteran submitted a mental disorders DBQ completed by a private psychologist in April 2017. The evaluator reiterated a diagnosis of adjustment disorder with mixed anxiety and depressed mood. The evaluator claimed to have reviewed “relevant medical records/VA service-connected disability ratings” although it is unclear what this means. The evaluator documented a social history demonstrating that the Veteran was divorced, but in a current intimate relationship. He reported being hesitant to get close and a lack of interest in sex. He described a good relationship with his children and one close long-term friendship. He reported stable employment in the restaurant industry but reported recent mishaps due to lack of focus and forgetfulness. The evaluator stated that the Veteran was observed with a restricted affect, that he reported recurrent panic attacks due to his stomach disorder and being in crowded places. He also reported feeling fatigued and struggled with a lack of energy and motivation. The evaluator stated that the following symptoms applied to the Veteran’s diagnosis: depressed mood, anxiety, suspiciousness, panic attacks more than once a week, chronic sleep impairment, impairment of short-and-long-term memory, flattened affect, disturbances of motivation and mood, difficulty adapting to stressful circumstances and maintaining effective work and social relationships, reduced activity, social withdrawal, irritability, fatigue, feelings of self-inadequacy, sexual performance problems/decreased sex drive, relationship problems, helplessness, and hopelessness. The evaluator opined that the Veteran’s psychiatric symptoms resulted in occupational and social impairment with reduced reliability and productivity. The evaluator noted that the Veteran was assessed under the DSM-5 criteria but issued a Global Assessment of Functioning (GAF) score of 52 under the DSM-IV. The evaluator was located in Puerto Rico, and did not explain how she evaluated the Veteran, who was located in Mississippi, such as whether the evaluation was conducted in-person, telephonically, or via videoconference. The Veteran underwent an additional VA examination in May 2018 to assess the severity of his service-connected acquired psychiatric disability. Following an in-person assessment and review of the available evidence of record, the VA examiner assessed the Veteran with unspecified depression with anxious distress and explained this change in diagnosis was not due to a worsening of the Veteran’s condition, but rather an attempt to more accurately report the Veteran’s condition in compliance with DSM-5 nomenclature. The Veteran reported restlessness/fatigue and sleep impairment, sadness/depression, anxiety due to his job, lack of motivation, and avoidance of large crowds. He denied symptoms such as poor memory, mood changes, loneliness, low self-worth, withdrawal from people, social discomfort, panic attacks, suicidal plans/intentions, harming others, hopelessness, hallucinations, aggression/fights, and irritability/anger. During examination, the Veteran was noted as appearing to be his stated age, with average height and weight. His grooming was adequate, and he was appropriately dressed. The Veteran related to the VA examiner with ease in an open/candid matter. Mental status examination revealed that the Veteran’s speech was clear, audible, logical, and goal-directed; his eye contact was good and there were no bizarre or unusual gestures/mannerisms; he reported his mood as “groggy” and affect was flat with limited range; affective responses were mood content congruent; there was no evidence of hallucinations, delusions, loose associations, or flight of ideas; the Veteran denied current thoughts of harming himself, others, or property; he was oriented to time, place, person, and purpose; the quality of his thinking was adequate as the Veteran answered/explained 3/3 of the proverb questions without difficulty; his abstract-conceptual thinking was adequate as he could relate to 3/3 of the abstractions; his memory function was not impaired as he was able to recall 3/3 objects presented earlier upon immediate recall and after one and three minute delays; his mental control was adequate as he was able to spell the word WORLD forward and backwards, recite the alphabet without error, count forward by 3s, and perform basic mental calculations without pencil and paper; his insight/judgment were adequate; and his intellectual ability was at least average based on his vocabulary, fund of information, and language use. The VA examiner administered the mini-mental state exam and the Veteran scored 30/30 which correlated to normal cognitive functioning. The VA examiner stated that the Veteran’s most active symptoms were depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood. The VA examiner opined that the Veteran’s acquired psychiatric symptoms most closely represented occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran’s VA treatment records do not document consistent specialized treatment for an acquired psychiatric disability. The various psychiatric examinations conducted at routine VA medical visits frequently listed the Veteran as alert and oriented to person, place, and time (or oriented to his own ability/limitations), and responsive to questioning. Affect was often reported as normal. Depression screens were frequently negative, and depression scale rated the factors considered as “good” or “fair.” In September 2016, the Veteran submitted a pain questionnaire and an article published by VA regarding chronic pain. This evidence is of no relevance in assessing the severity of the Veteran’s service-connected acquired psychiatric disability under the General Formula during the appellate period. In January 2020, the Veteran submitted an article regarding the connection between sexual dysfunction and mental health disorders. In February 2020, the Veteran was granted entitlement to service connection for erectile dysfunction and special monthly compensation for loss of use of a creative organ, and the Veteran has not appealed the initial rating assigned. Thus, this article is of no relevance in assessing the severity of the Veteran’s service-connected acquired psychiatric disability under the General Formula during the appellate period. In June 2017–along with the results of an April 2017 DBQ conducted by a private psychologist—the Veteran submitted a May 2017 written brief authored by a separate private clinical psychologist located in Puerto Rico. This private psychologist issued an “Independent VA rating evaluation for Service-Connected Mental Health Condition” and provided substantive legal argument in regard to the Veteran’s claim. The private psychologist cited regulations and caselaw and applied the results of the April 2017 private DBQ to the rating criteria set forth in 38 C.F.R. § 4.130. This psychologist also provided extensive argument regarding the application of the benefit-of-the-doubt doctrine, the principles set forth in 38 C.F.R. § 4.7, and erroneously argued that GAF scores necessitate a higher initial rating for the Veteran. Initially, the Board notes that the private psychologist is not registered by VA’s General Counsel’s Office as an accredited representative, and thus it is inappropriate for this individual to represent the Veteran or submit evidence or argument on the Veteran’s behalf. See 38 C.F.R. §§ 14.626, 14.629. Additionally, the ultimate question of the appropriate rating for the Veteran’s service-connected acquired psychiatric disability is an adjudicatory determination, not a medical one, and the role of adjudicating lies exclusively within the purview of the Board, as the ultimate finder of fact. Because the Board cannot rely on a psychologist’s opinion on a legal matter, the probative value of this psychologist’s opinion has been weighed as only one more piece of evidence to be considered in reaching the ultimate legal determination. See Sizemore v. Principi, 18 Vet. App. 264, 275 (2004). The Board finds the results of the October 2016 and May 2018 VA examinations to be more probative in this determination than the results of the April 2017 private psychologist’s DBQ. From a facial review of the examination reports, it is clear that the VA examiners engaged in a far more thorough mental status examination than that documented in the private psychologist’s DBQ. The VA examiners engaged in a thorough objective evaluation, whereas the private psychologist seems to have parroted the Veteran’s lay reports without any objective assessment, aside from a single notation of observing a restricted affect. For instance, regarding memory loss, the private psychologist relied exclusively on the Veteran’s lay reports, while the May 2018 VA examiner conducted an objective memory test. Additionally, the October 2016 and May 2018 VA examiners supported their conclusions regarding the Veteran’s depression and intellect with objective testing, while the April 2017 private psychologist did not administer any inventory testing. Moreover, the Board questions the reliability of the private psychologist’s conclusions. Unlike the VA examiners—who explained that they reviewed the claims files and conducted in-person examinations—the private evaluator provided a vague statement that she considered relevant medical evidence and VA service-connected disability ratings, and she did not explain whether she evaluated the Veteran in-person, over the phone, or via video, aside from a single reference that she “observed” the Veteran with a restricted affect. The Veteran lives in Mississippi and the private psychologist is located in Puerto Rico; and the record contains no information accounting for this geographical discrepancy. While psychologists are certainly capable of assessing individuals via telecommunication methods; if this is done, it needs to be explained so that the results can be viewed from the appropriate perspective. The private psychologist’s failure to explain the full scope and parameters of her assessment frustrates the Board’s ability to assess the comprehensiveness of her examination. Lastly, as directed by 38 C.F.R. § 4.2, it is the responsibility of the Board to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. The VA examination results from October 2016 and May 2018 document similar symptomatology, and thus any exacerbation that may have been present at the April 2017 private assessment must have been fleeting, as it was not documented in contemporaneous VA treatment records and had stabilized by the May 2018 VA examination. The Board has considered whether the Veteran is eligible for a staged rating during this period, but the Board does not find the results of the April 2017 to be sufficiently probative to warrant assignment of a staged rating. For the reasons stated above, the Board affords the April 2017 private DBQ de minimis evidentiary value in this appeal. To the extent that the author of the May 2017 brief argued that the April 2017 DBQ supported a higher rating, the Board disagrees. For the reasons stated above, the Board affords greater evidentiary weight to the October 2016 and May 2018 VA examinations than the April 2017 private psychologist’s DBQ. Contrary to the author of the May 2017 brief’s opinion, the Board does not find the evidence to be in equipoise, and as such, there is no reasonable doubt to be resolved in the Veteran’s favor. See 38 C.F.R. §§ 4.3, 4.7. The results of the October 2016 and May 2018 VA examinations demonstrate that the Veteran’s primary psychological symptoms are depression, anxiety, chronic sleep impairment, and disturbances of mood and motivation, most consistent with his currently assessed 30 percent rating under the General Formula. While the Board acknowledges that “disturbances of mood and motivation” is a symptom categorized under a 50 percent rating in the General Formula, the Board finds that this symptom, alone, is not of a severity, frequency, or duration to support a higher rating. While the lay and medical evidence shows disturbances of mood and motivation, this was typically characterized by reports of depressed mood and anxiety, as well as fatigue due to chronic sleep impairment. In fact, these psychiatric symptoms, which primarily contributed to the Veteran’s reported disturbances of mood and motivation, are explicitly set forth in the 30 percent rating criteria. Consequently, a higher evaluation is not warranted as this symptom (disturbances of mood and motivation) has not resulted in a level of social or occupational impairment contemplated by a higher rating. Vazquez-Claudio, 713 at 118. The author of the May 2017 brief also argued that the April 2017 private psychologist’s assignment of a GAF score of 52 supported a higher 50 percent rating. However, in Golden v. Shulkin, 29 Vet. App. 221, 225 (2018), the United States Court of Appeals for Veterans Claims held that the Board errs when it relies on GAF scores to assign a psychiatric rating in cases where the DSM-5 applies (such as this case) because the American Psychiatric Association has found that GAF scores lack clarity, usefulness, and are inherently unreliable. The Board does not find the Veteran’s GAF score, issued by the April 2017 private psychologist, to be probative in evaluating the severity of his service-connected acquired psychiatric disability under the rating criteria found in 38 C.F.R. § 4.130. With respect to a 50 percent rating, the May 2018 VA examiner noted a flattened affect, but the October 2016 VA examiner found an affect congruent to euthymic mood. There is no probative evidence of persistent flattened affect during the appellate period. The Veteran never exhibited circumstantial, circulatory, or stereotyped speech, as both VA examinations documented normal speech. There is no probative evidence that the Veteran has experienced panic attacks occurring more than once a week. The Veteran reported 2 panic attacks per week at the April 2017 private assessment, but the Board has found the results of this assessment to be entitled to de minimis evidentiary value, supra. Panic attacks were not reported at the October 2016 VA examination and the Veteran denied panic attacks at the May 2018 VA examination. Likewise, there is no indication of difficulty understanding complex commands. While the Veteran reported memory deficits to the April 2017 private psychologist, objective memory testing conducted at the May 2018 VA examination, which showed no deficits in long-or-short-term memory, has been assigned more evidentiary weight in this determination. There was also no evidence of impaired judgment or impaired abstract thinking, as the VA examinations demonstrated normal cognition or adequate insight/judgment. The Veteran has maintained full-time employment and familial relationships. With respect to the 70 percent criteria, the record does not support a finding that the Veteran had occupational or social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood during the appellate period. The Veteran has never experienced suicidal/homicidal ideation. There were no signs of obsessive ritual behavior in his medical records. The Veteran’s speech was always normal upon examination. There was no evidence of near-continuous panic during the appellate period, and while the Veteran maintained a consistent degree of depression throughout the appellate period, it did not negatively impact his ability to function independently, appropriately, and effectively. At the VA examinations, the Veteran’s behavior and attitude were cooperative and appropriate, and he was adequately groomed. There was no evidence of impaired impulse control, such as violent tendencies or public outbursts. He was always oriented to time, person, and place. The Veteran remained employed as a restaurant manager and maintained stable relationships with his mother and children with “good family support.” The Veteran’s psychiatric symptoms are not of a severity or frequency to warrant a higher 70 percent evaluation during the appellate period. With respect to a 100 percent disability rating, the Veteran never exhibited gross impairment in thought processes or communication or persistent delusions or hallucinations. The mental status examinations conducted at the VA examinations showed adequate thought processes/thinking, normal cognition, and normal speech. The Veteran never exhibited grossly inappropriate behavior (behavior was nearly always noted as cooperative or appropriate upon mental status examination) or persistent danger of hurting self or others (the Veteran denied suicidal and homicidal ideations on all occasions and exhibited no dangerous tendencies). The Veteran remained fully capable of performing activities of daily living. The Veteran was never disorientated to time or place, as all mental status examinations showed orientation to all spheres. The Veteran’s psychiatric symptoms are not of a severity or frequency to warrant a higher 100 percent evaluation during the appellate period. Finally, the Board has considered whether the Veteran can achieve a higher rating based on symptoms not directly listed in the General Formula, as required by Vazquez-Claudio. The Board has afforded the greatest probative value to the October 2016 and May 2018 VA examinations and the VA examiners found that the Veteran’s most active psychiatric symptoms were depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood—which are contemplated by the General Formula. The VA examiners did not indicate that the Veteran’s service-connected acquired psychiatric disability was predominantly manifested by any psychiatric symptoms not contemplated by the rating criteria set forth in 38 C.F.R. § 4.130. Thus, the Veteran may not achieve a higher rating on this basis. Based on the above, the Board concludes that the Veteran’s psychological symptoms have not caused the level of impairment required for a disability rating of 50 percent or higher during the appellate period. Having fully considered the evidence, the Board finds that the Veteran’s psychiatric symptoms are adequately contemplated by his current 30 percent disability rating for the entire appellate period. Consequently, the Veteran’s appeal seeking an initial disability rating in excess of 30 percent for his service-connected acquired psychiatric disability is denied. The Board has considered whether the evidentiary record raises the issue of entitlement to a total disability rating based on individual unemployability (TDIU), as discussed in Rice v. Shinseki, 22 Vet. App. 447 (2009). Having reviewed the record, the Board finds that the Veteran has been engaged in substantially gainful employment during the appellate period. At the October 2016 and May 2018 VA psychiatric examinations, the Veteran reported he was employed on a full-time basis as a restaurant manager. There is no indication that the Veteran’s employment is marginal in nature or performed in a protected work environment. As such, the Board finds that an inferred claim of entitlement to a TDIU has not been raised by the record. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.