Citation Nr: 21002032 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 13-12 027 DATE: January 12, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to December 29, 2009, for left foot plantar fasciitis, pes planus, and hallux valgus (left foot disability) is denied. Entitlement to a rating in excess of 10 percent prior to December 29, 2009, for right foot plantar fasciitis, pes planus, and hallux valgus (right foot disability) is denied. Entitlement to a rating of 50 percent, but no higher, for bilateral pes planus, plantar fasciitis, and hallux vulgus (bilateral foot disability) from December 29, 2009 is granted. REMANDED Entitlement to a rating in excess of 10 percent for right knee chondromalacia and tendonitis (right knee disability) is remanded. Entitlement to a rating in excess of 10 percent for left knee degenerative changes with chondromalacia and tendonitis (left knee disability) is remanded. Entitlement to a compensable rating for hypertension is remanded. FINDINGS OF FACT 1. Prior to December 29, 2009, the Veteran’s right and left foot disabilities were manifested by symptoms that approximated moderate foot injuries, to include constant pain, and did not more nearly approximate severe flat foot. 2. Resolving all reasonable doubt in favor of the Veteran, since December 29, 2009, his right and left foot disabilities more nearly approximated pronounced flat foot, with symptoms of marked pronation and extreme tenderness of the plantar surfaces of the feet that is not improved by orthopedic shoes or appliances, and did not more nearly approximate severe foot injuries. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent prior to December 29, 2009, for left foot plantar fasciitis, pes planus, and hallux valgus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Codes (DCs) 5276, 5280, 5284. 2. The criteria for a rating in excess of 10 percent prior to December 29, 2009, for right foot plantar fasciitis, pes planus, and hallux valgus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, DCs 5276, 5280, 5284. 3. The criteria for a rating of 50 percent since December 29, 2009, for bilateral pes planus, plantar fasciitis, and hallux vulgus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, DCs 5276, 5280, 5284. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from May 1986 to May 1989 and from July 1989 to June 2007. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Additional VA treatment records were received after the most recent supplemental statement of the case in September 2020. As the records are either duplicative of evidence already of record or irrelevant to the issue being decided herein, a remand for RO consideration is unnecessary. See 38 C.F.R. § 20.1304. The record reflects that the issues of entitlement to an increased rating for a right ankle disability and service connection for sleep apnea have recently been certified to the Board. However, the Veteran requested a Board hearing to address those issues. Thus, those issues will be addressed in a separate Board decision after the requested hearing has been afforded to the Veteran. 1. Increased rating for bilateral foot disabilities. The Veteran seeks increased ratings for his bilateral foot disabilities. For the reasons that follow, and resolving all reasonable doubt in favor of the Veteran, the Board finds that an increased rating is warranted from December 29, 2009. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s right and left foot disabilities have been rated 10 percent disabling pursuant to 38 C.F.R. § 4.71a, DC 5284, for other foot injuries. Under DC 5284, a 10 percent rating is warranted for a foot injury which is moderate in degree. A 20 percent rating is warranted for a moderately severe foot injury. A 30 percent rating is warranted for a severe foot injury. A 40 percent rating may be assigned if there is actual loss of use of the foot. 38 C.F.R. § 4.71a, DC 5284. The words “moderate,” “moderately severe,” and “severe,” as used in the various diagnostic codes 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. “Loss of use of a foot” is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the knee with use of a suitable prosthetic appliance. The determination will be made on the basis of the actual remaining function of balance, propulsion, etc., which could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. § 4.63. Examples under 38 C.F.R. § 4.63 that constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, or complete paralysis of the external popliteal nerve and consequent foot drop. DC 5276 provides ratings for acquired flatfoot (pes planus). Under DC 5276, a 10 percent rating is warranted for moderate symptoms such as the weight-bearing line being over the medial to great toe, inward bowing of the tendo Achillis, or pain on manipulation and use of the feet. A 30 percent is warranted for bilateral severe unilateral flatfoot characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A maximum 50 percent rating requires bilateral pronounced unilateral flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo Achilles on manipulation, not improved by orthopedic shoes or appliances. With regards to DC 5276, while some of the symptoms listed in the rating criteria are conjunctive - e.g., “pain on manipulation and use accentuated” - the rating criteria themselves are not. In other words, a veteran does not need to demonstrate all of the symptoms under a particular rating to be assigned that evaluation. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009) (discussing how some DCs, such as DC 7903 for hypothyroidism, are not conjunctive); c.f. Camacho v. Nicholson, 21 Vet. App. 360, 366-67 (2007) (noting that inclusion of the conjunctive “and” indicates that all criteria must be demonstrated). Where a disability manifests in some criteria from a lower evaluation and some criteria for a higher evaluation, the Board should address 38 C.F.R. §§ 4.7 and 4.21 and explain which evaluation the disability more nearly approximates. The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint, even in the absence of arthritis, to include in situations where the disability at issue is not evaluated based on range of motion measurements. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1, 5 (2011); Southall-Norman v. McDonald, 28 Vet. App. 346 (2016). I. Prior to December 29, 2009. The Veteran underwent a VA examination for his bilateral foot disabilities in April 2009. At the examination, the Veteran reported experiencing constant pain of the heel of both feet. He described it as a burning sensation with a severity of eight out 10 and noted that it was brought on by physical activity and relieved by rest. He reported pain on both feet with standing and walking. He denied any functional impairment related to his feet. On clinical evaluation, the examiner noted that there was no painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, or tenderness, heat, redness, or instability bilaterally. The Veteran had an unusual shoe wear pattern on the lateral heels of both shoes without callosity. There was active motion of the metatarsophalangeal joints of the great toes bilaterally. Palpitation of the plantar surface of the feet revealed no tenderness. The Achilles’ tendons were in good alignment, and the Veteran only had flat feet with weight bearing with slight valgus of the feet bilaterally. No claw feet, hammertoes, or Morton’s metatarsalgia was noted. He had bilateral bunions with bilateral hallux valgus with slight degree of angulation bilaterally. No hallux rigidus was noted. No limited function for standing or walking was observed. The Veteran did not require any corrective shoe wear. The examiner also noted early osteoarthritis of the first metatarsophalangeal joint. VA treatment records during the relevant time period show complaints of bilateral heel pain that were treated with injections. Based on the foregoing, the Board finds that the Veteran’s right and left foot disabilities more nearly approximated, at worst, a moderate foot injury under DC 5284. While the Veteran had constant pain in his bilateral feet, it did not affect his function or impose any functional limitations. Specifically, the Veteran did not report experiencing any functional limitations and no limited function for standing or walking was observed on clinical evaluation. There was no evidence of edema, muscle weakness, or instability. Active motion in the metatarsophalangeal joints of the great toes was shown. There also was no evidence of any fractures, dislocations, subluxations, or lytic lesions. Thus, in light of the foregoing, the Board finds that the Veteran’s left and right foot disabilities more nearly approximated a moderate foot injury. With regards to DC 5276, the Board finds that the Veteran’s bilateral foot disabilities more nearly approximated moderate pes planus. While the Veteran experienced pain with use of his feet, there was no evidence tenderness of the plantar surface on palpitation. There also was no evidence of any marked deformity such as pronation or abduction, swelling, or callosities. Additionally, the Veteran had good alignment of his Achilles’ tendons and did not require any corrective shoe wear. Thus, a rating in excess of 10 percent also is not warranted under DC 5276. The Board also has considered whether a higher rating is warranted under any other applicable diagnostic code. The only other applicable diagnostic codes would be DC 5280 for hallux valgus and DC 5003 for arthritis. However, the highest available rating under DC 5280 is 10 percent, and as there is no evidence of any occasional incapacitating episodes, a higher 20 percent rating is not warranted pursuant to DC 5003. The Board has further considered whether a separate rating could be assigned based on the Veteran’s hallux valgus, arthritis, and pes planus. However, assigning a separate rating under DC 5003, 5276, or 5280 would constitute pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Veteran’s foot disabilities primarily manifested in foot pain with use, which is contemplated by his current 10 percent rating for moderate foot injuries. Thus, assigning separate ratings for foot pain from pes planus, foot pain from arthritis, and foot pain from hallux valgus would constitute impermissible “pyramiding.” 38 C.F.R. § 4.14. The Board acknowledges that the April 2009 VA examination is not compliant with the requirements of Deluca v. Brown, Correia v. McDonald, or Sharp v. Shulkin. 8 Vet. App. 202, 206 (1995); 28 Vet. App. 158 (2016); 29 Vet. App. 26 (2017). However, neither DC 5003, 5276, nor 5284 (nor any other Diagnostic Code for foot disabilities) employs range of motion findings as the bases for assigning ratings. Therefore, the requirements of 38 C.F.R. §§ 4.40 and 4.45, Sharp, and Correia do not apply. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). To the extent that the aforementioned requirements could be applicable to DC 5284, the Board finds that it is not applicable in this case. DC 5284 is a general diagnostic code under which a variety of injuries may be rated. Thus, some injuries may affect range of motion while others do not. For injuries that affect range of motion, limitation of motion may be involved when rating pursuant to DC 5284. See VAOPGCPREC 9-98 (1998); see also Southall-Norman, 28 Vet. App. at 354 (holding that § 4.59 is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the diagnostic code under which the disability is being evaluated is predicated on range of motion measurements). However, in this case, none of the Veteran’s service-connected conditions affect his range of motion, and thus, do not involve limitation of motion. Specifically, the Veteran reported that he did not experience any functional impairments related to his feet at the April 2009 VA examination and the examiner did not find any limited function with walking or standing. Therefore, as the Veteran’s disabilities do not involve limitation of motion, the aforementioned requirements, including Sharp and Correia, do not apply. Accordingly, the Board finds that the Veteran’s left and right foot disabilities are appropriately rated as 10 percent disabling prior to December 29, 2009. II. From December 29, 2009. A December 2009 VA treatment record shows that the Veteran reported that his foot pain was getting worse and he was given gel shoe inserts. VA treatment records since that time continued to show complaints of foot pain. Pursuant to the June 2017 and November 2018 Board remands, the Veteran underwent a VA fee-based examination for his bilateral foot disabilities in January 2020. At the examination, the Veteran reported pain in his feet with a severity of seven out of ten. He reported flare-ups of his feet and noted that they hurt so bad he will want to sit down. When asked about any functional impairment or loss in relation to his feet, he noted that he cannot run. On clinical examination, the Veteran had pain that was accentuated on use and on manipulation. He had extreme tenderness of the plantar surfaces that was not improved by orthopedic shoes or appliances. He also had decreased longitudinal arch height on weight bearing. Marked pronation of both feet as well as inward bowing of the Achilles’ tendon were noted. There was no indication of swelling on use or characteristic calluses. There also was no marked inward displacement or severe spasm of the Achilles’ tendons. The examiner also noted mild to moderate symptoms of hallux valgus. With regards to the Veteran’s arthritis and plantar fasciitis, the examiner opined that the Veteran’s symptoms were moderate in nature. The examiner noted that the conditions compromised weight bearing and required orthotics. On examination, the examiner noted that the Veteran experienced pain on weight-bearing, disturbance of locomotion, interference with standing, and noted that the Veteran was unable to stand or walk greater than 15 minutes. The examiner further noted that the Veteran had difficulties with prolonged standing and walking. The examiner also noted that x-rays showed an old fracture of the left foot. She opined that the left foot fracture was likely a separate condition with a residual symptom of pain. She also opined that the Veteran’s trauma and misalignment of the feet due to his service-connected food conditions likely led to his bilateral foot arthritis. Based on the foregoing, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s bilateral foot disabilities have more nearly approximated pronounced bilateral pes planus since December 29, 2009. The evidence of record shows that the Veteran’s pes planus manifests in marked pronation of both feet as well as extreme tenderness of the plantar surfaces that is not improved by orthopedic shoes or appliances. The Veteran also has described difficulty with prolonged standing or walking due to the pain in his feet as well as an inability to run. The Board finds that such symptomatology more nearly approximates pronounced bilateral pes planus under DC 5276, which warrants the maximum 50 percent rating under that DC. Although there is not much medical evidence detailing the symptoms of the Veteran’s pes planus, other than complaints of foot pain, prior to the January 2020 VA fee-based examination, the December 2009 VA treatment record is factually ascertainable evidence that the Veteran’s bilateral foot disabilities increased in severity at that time. Thus, resolving all reasonable doubt in favor of the Veteran, the Board finds that since that time, his pes planus has been pronounced. With regards to a higher rating under DC 5284, the Board finds that the severity of the Veteran’s bilateral foot disabilities more closely approximates, at worst, moderately severe foot injuries. The Veteran clearly has pain affecting his function that is not relieved with orthotics. However, the January 2020 examiner described his disability as moderate after performing expert physical examination of the affected area. Additionally, there was no swelling and the Veteran did not require the use of assistive devices. While the Veteran does have physical limitations related to his feet, he is still able to work and take care of himself. There is no evidence that his bilateral foot disabilities had any impact on feeding, bathing, dressing, toileting, or grooming. Accordingly, the Board finds that the Veteran’s bilateral foot disabilities more closely approximate moderately severe foot injuries under DC 5284. In light of the foregoing, the Board finds that it is most advantageous to the Veteran to change his diagnostic code from DC 5284 to DC 5276 for his bilateral foot disabilities. The assignment of a particular DC is “completely dependent on the facts of a particular case.” Butts v. Brown, 5 Vet. App. 532, 538 (1993). One DC may be more appropriate than another based on such factors as the Veteran’s relevant medical history, her current diagnosis, and demonstrated symptomatology. Any change in DC by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Service connection for a disability is not severed simply because the situs of the disability, or the DC associated with it, is corrected to determine more accurately the benefit to which the veteran is entitled. Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Here, the Board finds it appropriate to change the DC from 5284 to 5276 from December 29, 2009, for two reasons. First, the evidence of record indicates that the Veteran experiences the most symptomatology related to his pes planus, and thus, pes planus appears to be the predominant disability. Secondly, the change in DC provides the Veteran with a higher rating of 50 percent. As explained in detail above, the Board finds that the Veteran’s bilateral foot disability warrants the maximum 50 percent rating under DC 5276 but only a 20 percent rating under DC 5284. The Board acknowledges that by changing the DC to 5276 for bilateral pes planus, the Veteran’s bilateral foot disabilities will be assigned a single rating rather than two separate ratings for each foot. However, despite this change, the single 50 percent rating under DC 5276 is still higher than awarding separate ratings of 20 percent for each foot under DC 5284. If the Board were to continue to rate the Veteran’s bilateral foot disabilities pursuant to DC 5284, while he would receive separate 20 percent ratings for each foot, his combined evaluation for both feet would only be 40 percent, even with consideration of the bilateral factor. Thus, changing the DC to 5276 allows for a higher rating, even if it is only a single rating. Furthermore, whether the Board grants an increased rating under DC 5276 or 5284, his new total combined disability rating will be the same. Accordingly, as DC 5276 more accurately reflect the Veteran’s disability picture and allows for the assignment of a higher rating for his bilateral foot disabilities, the Board reassigns the disability rating from DC 5284 to DC 5276. The Board also has considered whether higher ratings are available under DC 5280 or 5003. However, neither diagnostic code provides for a rating higher than 50 percent. The Board also has considered whether separate ratings could be assigned based on hallux valgus, plantar fasciitis, and arthritis of the feet, but DC 5276 contemplates pain on manipulation and use of the feet, which is not explicitly limited to a particular area of the foot. Thus, assigning separate ratings for foot pain from pes planus and foot pain from hallux valgus, plantar fasciitis, and arthritis would constitute impermissible “pyramiding.” 38 C.F.R. § 4.14. Additionally, functional impairment or functional loss, specifically difficulty with standing, walking, and running, due to the Veteran’s plantar fasciitis and arthritis has already been considered in the Veteran’s 50 percent rating under DC 5276. Therefore, the symptomology and functional effects of these disabilities overlap such that assignment of separate ratings for the individual conditions would violate the rules against pyramiding. The Board acknowledges that while the January 2020 VA fee-based examination tested for pain with weight-bearing and nonweight-bearing, it did not test for pain in active or passive motion as requested by the November 2018 Board remand. However, as explained above, the Board finds that the requirements of Correia do not apply to the Veteran’s current claim. Since December 2009, the Veteran’s bilateral foot disabilities are now rated pursuant to DC 5276, which is not predicated on limitation of motion. Further, even if the Veteran’s bilateral foot disabilities were rated pursuant to DC 5284, there is no evidence that the Veteran experiences any limitation of motion of his foot due to his bilateral foot disabilities. While the Veteran has reported experiencing difficulty with standing, walking, and running, the evidence indicates that such is due to pain on the plantar surface of his feet, not due to reduced range of motion. Thus, the requirements of Correia do not apply and such failure amounts to a harmless error. In sum, the Board finds that prior to December 29, 2009, the Veteran’s bilateral foot disabilities more nearly approximated moderate foot injuries under DC 5284, warranting a rating no higher than the currently assigned 10 percent rating. However, since December 29, 2009, when resolving all reasonable doubt in favor of the Veteran, his bilateral foot disabilities warrant an increased rating of 50 percent under DC 5276, bilateral pes planus. There are no additional issues expressly or reasonably raised on the record related to this claim. REASONS FOR REMAND 1. Entitlement to a compensable rating for hypertension. The Veteran seeks a compensable rating for his hypertension. While the Board regrets further delay, it finds that a remand is necessary in order to ensure substantial compliance with the Board’s prior remand. The evidence of record shows that the Veteran has received treatment for his hypertension from Langley Air Force Base. See June 2013 VA treatment records. In its June 2017 remand, the Board requested the RO to request authorization from the Veteran to obtain outstanding pertinent treatment records from Langley Air Force Base. A review of the record shows that the RO requested such in an August 2017 letter. The Veteran did not return the requested authorization. In its November 2018 remand, the Board again directed the RO to obtain the Veteran’s records from Langley Air Force Base. However, a review of the record shows that the RO did not make any additional attempts to request the records. Accordingly, the Board finds that a remand is warranted in order to ensure substantial compliance with the Board’s November 2018 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran is reminded that the duty to assist is not a one-way street and is advised that, if he wishes this evidence to be considered in deciding his claim, he must assist with all requests for information. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). 2. Entitlement to increased ratings for bilateral knee disabilities. The Veteran seeks higher ratings for his left and right knee disabilities. In the June 2017 remand, the Board directed that the Veteran be afforded an examination for his left and right knee disabilities. However, this was not accomplished, and the Board again remanded the claims in November 2018 to allow an examination to be scheduled. Pursuant to the November 2018 remand, the Veteran was afforded a VA fee-based examination for his knees in January 2020. At the examination, the Veteran reported experiencing flare-ups of his left and right knee. On examination, the examiner noted that pain would significantly limit functional ability with repeated use over time and with flares, but when asked to describe in terms of loss of range of motion (ROM), the examiner noted ROM from 0 to 70 degrees, bilaterally, indicating that the Veteran’s functional ability would not be significantly limited. The examiner however did not elicit information regarding the frequency, duration, or other, if any, functional loss manifestations during flares. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Furthermore, at the January 2020 examination, the examiner reported that the Veteran did not use any assistive devices. However, a subsequent August 2020 VA treatment record shows that the Veteran uses a custom brace for his left knee, which indicates that the Veteran’s left knee condition potentially could have worsened since the January 2020 examination. In light of the foregoing, the Board finds that the Veteran should be afforded a new VA examination for his left and right knee on remand. Furthermore, as noted above, there are outstanding records from Langley Air Force Base. In addition to being relevant to the Veteran’s claim for an increased rating for hypertension, evidence of record indicates that the Veteran also has received treatment from Langley Air Force Base for one or both of his knees. See January 2015 VA treatment record. As such, a remand is warranted in order to allow the RO to attempt to obtain these records. The matters are REMANDED for the following action: 1. Attempt to obtain any outstanding treatment records from Langley Air Force Base pertaining to treatment for the Veteran’s hypertension and/or bilateral knees. Document all requests for information as well as all responses in the claims file. 2. Schedule the Veteran for an examination to determine the current severity of his service-connected left and right knee disabilities. The examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary, or is not medically appropriate, in this case; he or she should clearly explain why that is so. The examiner should also express an opinion as to whether pain, weakness, fatigability, or incoordination cause additional functional impairment on repeated use over time or during flare-ups. The examiner should assess the additional functional impairment in terms of the degree of additional range-of-motion loss, if possible. If the Veteran is not being observed after repetitive use or during a flare-up, the examiner must still estimate any additional functional loss during flare-ups or on repeated use, based on the Veteran’s description of his flares’ severity, frequency, duration, and/or functional loss manifestations. Finally, to the extent possible, the examiner should identify any symptoms and functional impairments due to the left knee and right knee conditions alone and discuss the effect of the Veteran’s left and right knee conditions on any occupational functioning and activities of daily living. C. CRAWFORD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Mortimer, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.