Citation Nr: 21002693 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 10-29 775 DATE: January 14, 2021 ORDER Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee strain with arthritis, is denied. Entitlement to service connection for a low back disability, to include as secondary to service-connected right knee strain with arthritis, is denied. FINDINGS OF FACT 1. The Veteran’s left knee joint osteoarthritis did not have its onset during service and is not related to any incident of service. 2. The Veteran’s left knee joint osteoarthritis was not proximately caused or aggravated by his service-connected right knee disability. 3. The Veteran’s degenerative arthritis lumbar spine did not have its onset during service and is not related to any incident of service. 4. The Veteran’s degenerative arthritis lumbar spine was not proximately caused or aggravated by his service-connected right knee disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a left knee disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria for service connection for a low back disability have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to June 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2008 rating decision. In October 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a video-conference hearing. A transcript of that hearing is of record. The Veteran’s claims for service connection were remanded by the Board in March 2016, July 2017, and May 2020 for further development. Again, as noted in previous Board remands, the Veteran has perfected a separate appeal regarding entitlement to a disability rating in excess of 10 percent for his service-connected right knee disorder and to a total disability rating based on individual unemployability due to service-connected disabilities. These issues were certified to the Board in August 2016; however, the requested hearing has not been held. As the Veteran’s appeal is still pending, it will be addressed in a separate Board decision. Service Connection Service connection generally will be awarded when a veteran has a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection on a direct basis, the evidence must show: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a link between current disability and the disease or injury incurred or aggravated in active service (the “nexus” element). Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). For the chronic diseases listed in 38 C.F.R. § 3.309(a), including arthritis, service connection may alternatively be established with evidence of chronicity of the disease during service or during a presumptive period following service separation. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012). For conditions noted during service (or in a presumptive period) but not shown to be chronic at the time, a continuity of symptomatology after service must be shown to substantiate the claim. 38 C.F.R. § 3.303(b). When chronicity or continuity is established, subsequent manifestations of the same chronic disease at any later date, no matter how remote in time from the period of service, will be service connected unless clearly attributable to causes unrelated to service (“intercurrent” causes). Id. In addition, where a veteran served continuously for 90 days or more during a period of war, or after December 31, 1946, there is a presumption of service connection for arthritis if it manifested to a degree of 10 percent or more within one year from the date of separation from service, even if there is no evidence of the disease during the service period itself. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). This presumption may be rebutted by affirmative evidence to the contrary. 38 C.F.R. § 3.307(d). Service connection may be granted on a secondary basis for a disability which is proximately due to, or the result of, a service-connected disease or injury. 38 C.F.R. § 3.310(a). Secondary service connection may also be granted for aggravation of a disease or injury by a service-connected disability. Id. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014). If the preponderance of the evidence weighs against the claim, it must be denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 1. Entitlement to service connection for a left knee disability, to include as secondary to service-connected right knee strain with arthritis is denied. 2. Entitlement to service connection for a low back disability, to include as secondary to service-connected right knee strain with arthritis is denied. The Veteran maintains that service connection is warranted for his current left knee and low back disabilities. He states that he sustained left knee and low back injuries during his active service as a result of athletic competition. In particular, the Veteran advised that he sustained a left knee injury in October 1966. See VA Form 21-4138, Statement in Support of Claim. During the October 2015 hearing, the Veteran stated that he injured his left knee and low back while playing football and received medical treatment. The Veteran further provides that he has had left knee and low back pain since his active service. Also of record are statements from the Veteran’s mother (E.D.) and friends (J.R.) and (M.J.) concerning their observations of the Veteran’s back and/or knee symptoms after his return from service. See VA Forms 21-4138, dated September 22, 2009, September 23, 2009, and May 19, 2013. J.R. stated that it was her opinion that the Veteran’s knee problems were related to his military service due to injuries while participating on athletic teams. For the following reasons, the Board finds that service connection for the Veteran’s left knee and low back disabilities has not been established. The Veteran’s service treatment records do not reflect left knee or low back injuries, symptoms, treatment, or diagnoses, but demonstrate that he injured his right knee and sought treatment on multiple occasions. In particular, the Veteran’s service treatment records indicate that he injured his right knee as a result of playing football and basketball. Service treatment records that reflect his right knee injuries and treatment do not also demonstrate an injury to his left knee or low back, any left knee or low back symptoms, or any related treatment. The June 1969 separation examination report reflects a normal clinical evaluation of the Veteran’s lower extremities and spine. In terms of post-service treatment, evidence contained in the Veteran’s claims file demonstrates that he was first seen in July 2000 with complaints of bilateral knee pain for several months. The Veteran described no recent trauma to the knees, and he was given an assessment of osteoarthritis involving both knees. Regarding, the Veteran’s back, he complained of chronic back pain in August 2007 that has been present since his active service. The Veteran received a December 2008 X-ray of the lumbar spine, which was consistent with degenerative arthritis in the lumbar spine. The Veteran was afforded a December 2009 VA examination that shows he has a diagnosis of degenerative joint disease left knee. The examiner stated that it was his medical opinion, “following a review of the records, with no history of injury to the left knee, that the osteoarthritic findings of the left knee are more of a degenerative process and not related to any military service injury or sequelae associated with the right knee.” A January 2010 private medical opinion from S.N., M.D. states that the Veteran has had long-standing bilateral knee symptoms which date back as early as the 1980s when he underwent a knee arthroscopy to help minimize some of his symptoms. The medical opinion provides that, “Obviously, the Veteran has done quite a bit of service in the military which has presumably worsened his conditions of the knee. We do know that there is a relationship between a previous injury to the knees as well as repetitive use of the knees which may worsen the conditions and predispose patients to early arthritis.” A May 2013 VA Knee and Lower Leg Conditions Disability Benefits Questionnaire states that the Veteran has bilateral knee arthritis. The medical history provides that the Veteran injured his right knee during his active service and the injury progressed, causing a gait disturbance and eventually left knee pain. X-rays in both knees show advanced bilateral arthritis. In terms of the relationship between the Veteran’s left knee disability and his right knee, the examiner stated that while gait abnormalities result in abnormal stresses on other joints, these are not of a magnitude to actually cause arthritis. The examiner concluded that it was therefore less likely than not that the Veteran’s right knee problem caused the arthritis in the left knee. An October 2018 Knee and Lower Leg Conditions Disability Benefits Questionnaire provides that the Veteran has a diagnosis of bilateral knee joint osteoarthritis. The examination report indicates that the Veteran’s left knee disability was less likely than not incurred in or caused by his active service, including from contact sports and/or repetitive use. In support, the examiner noted that he was not able locate any documentation of a diagnosis, evaluation, or treatment for a left knee condition in the service treatment or within the first few years following separation from active service in 1969. The examiner noted that, based on the history provided by the Veteran, he remained active in sports following separation from active service and indicated that he played college basketball from 1970 through 1972. The Veteran stated that he developed acute onset of swelling in his left knee while playing college basketball, which resulted in the need for needle aspiration of the left knee joint sometime between 1970 and 1972. The Veteran was not able to offer any other details regarding this episode, such as being given a specific diagnosis, medical evaluation, or treatment for this left knee condition, nor was he able to describe any subsequent evaluation by a healthcare provider for knee problems until 1989 when he had arthroscopic surgery on his right knee, reportedly for debridement of bone spurs. Further, the examiner stated that current medical literature indicates that degenerative arthritis of knee joints typically results from gradual, routine wear and tear joints over time. Significant trauma to a knee joint can also predispose the patient to developing arthritic changes in the joint. The examiner noted that the Veteran described a significant, acute trauma to his left knee joint while playing organized sports in college between 1970 and 1972 that necessitated aspiration of fluid from the left knee joint, and that needle aspiration of fluid from a knee joint immediately following the acute onset of knee joint trauma usually indicates derangement of a structure(s) in the knee resulting in the accumulation of fluid such as blood. Unfortunately, however, no medical records were available documenting specific details about this left knee injury. In finding that the Veteran’s left knee disorder was less likely than not caused by his right knee disorder, to include any altered gait associated therewith, the October 2018 VA examiner noted that the Veteran described a history of alterations in his gait pattern due to chronic bilateral knee pain. The Veteran indicated that he had a long history of one knee typically being more painful than the other knee over the past 40 to 45 years and as a result, he tends to favor and shift most of his weight to the less painful knee at the time while he is walking. The examiner explained that gait abnormalities can place stress on other joints in the lower limbs and extremities resulting in musculoskeletal pain, but the examiner was not able to locate any evidence based, peer-reviewed, medical literature to support a contention that gait abnormalities can result in sufficient stress to result in arthritis in other joints. The VA examiner acknowledged the January 2010 private medical opinion from S.N., M.D., apparently agreeing that there was a relationship between degenerative arthritis and a gradual, routine wear and tear joints over time, as well as trauma. However, the VA examiner concluded that the Veteran’s current, severe degenerative arthritis involving his left knee was more likely related to the injury incurred to his left knee between 1970 and 1972 while playing organized sports in college, gradual wear and tear on the knee joint as a result of continuing to engage in high impact organized sports after military service, and the physical demands of working post-service in law enforcement for over 20 years. Further, in an October 2019 addendum, the October 2018 VA examiner again noted that the Veteran indicated that he injured his left knee playing college sports between 1970 and 1972, necessitating the need for aspiration of fluid from the left knee. The examiner stated that current, evidence-based medical literature generated by the Mayo Clinic in the American College of orthopedic surgeons indicates that degenerative arthritis in a joint typically results from routine wear and tear on joints over time and can also result from a direct trauma to a joint. On this basis, the examiner reiterated that it was more likely that the degenerative disease in the Veteran’s left knee was due to the college sports injury described by him between 1970 and 1972. In a May 2020 addendum, the same VA examiner stated that it was not at least as likely as not that the Veteran’s current left knee disorder is aggravated by (i.e., undergoes any incremental increase in disability, regardless of its permanence) his right knee disorder, to include any alteration in gait associated therewith. The medical opinion recounts the Veteran’s history and the above medical literature. The VA medical opinions concerning the left knee carry more weight than the private medical opinion, as they represent more reasoned explanations of the cause of the Veteran’s left knee disability. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that the probative value of a medical opinion comes from its reasoning, and therefore is not entitled to any weight if it contains only data and conclusions). The VA opinions reference the state of current peer-reviewed medical literature and the Veteran’s post-service medical treatment history, continued post-service participation in organized sports and related injury, and a 20-year career in law enforcement. The private medical opinion does not cite to relevant medical literature or consider the Veteran’s post-service history participating in organized sports, his post-service left knee injury, or his post-service, 20-year career in law enforcement. Lastly, the private medical opinion is couched in generalizations and speculative language. Regarding the relationship of the Veteran’s low back disability and his active service, he was afforded an October 2018 VA Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. The examination report states that the Veteran has a diagnosis of degenerative arthritis lumbar spine. The examiner concluded that the Veteran’s low back disability was less likely than not incurred in or caused by his active service, including from contact sports. In support, the Veteran advised that he injured his back while involved in sports during his active service, but the examiner was not able locate any documentation of a diagnosis, evaluation, or treatment for any back conditions in the service treatment records. The examiner was also not able locate any documentation of a diagnosis, evaluation, or treatment for any back conditions until the Veteran presented to the emergency department at the Hyde Park VA clinic with complaints of back pain in August 8, 2007, approximately 36 years after separation from active duty in the military service. The examiner reiterated his opinion in an October 2019 addendum. The October 2018 VA examiner also concluded that it was less likely than not that any current back disability was caused by the Veteran’s right knee disorder, to include any altered gait associated therewith. The examiner noted that the Veteran described a history of alterations in his gait pattern due to chronic bilateral knee pain as he indicated that he had a long history of one knee typically being more painful than the other knee over the past 40 to 45 years. As a result, the Veteran tended to favor and shift most of his weight to the less painful knee while he is walking. While gait abnormalities can place stress on the low back and other joints in the lower limbs and extremities resulting in musculoskeletal pain, the examiner stated that he was not able to locate any evidence based, peer-reviewed, medical literature to indicate that gait abnormalities can result in sufficient stress to result in arthritis to the back or other joints. In a November 2019 addendum, the same VA examiner again stated that it was less likely than not that any current back disability was caused by the Veteran’s right knee disorder, to include any altered gait associated therewith. The examiner stated that it is well documented in current evidence-based, peer-reviewed medical literature that arthritic changes in the back are the result of routine, day-to-day wear and tear on the joints in the back over time. Pain due to degenerative arthritis of the lumbar spine can also result from a significant direct trauma to the lower back. The examiner stated that he was not able locate any evidence-based medical literature that would support a contention that any current low back disorder was caused by the Veteran’s right knee disorder, to include by any altered gait associated therewith. Regarding aggravation, in a May 2020 addendum the same VA examiner stated that it was not at least as likely as not that the Veteran’s current low back disorder is aggravated by (i.e., undergoes any incremental increase in disability, regardless of its permanence) his right knee disorder, to include any alteration in gait associated therewith. The medical opinion recounts that the Veteran’s history and again notes that a review of evidence-based medical literature generated by the American College of Orthopedic Surgeons and medical literature generated by the Orthopedic Department at the Mayo Clinic indicates that degenerative arthritis in the lumbar spine is a condition that results from routine wear and tear to the joints of the back over time and that significant trauma to the joints of the back is also a risk factor for developing degenerative arthritis in the lumbar spine. Combined, the Board finds the above VA medical opinions to be especially probative regarding the relationship between the Veteran’s current back disability and his active service and service-connected right knee disorder. The medical opinions are the product of informed conclusions supported by thorough explanations and based on a review of the Veteran’s medical history, relevant medical literature, and the clinical findings made on examination. See Nieves-Rodriguez, 22 Vet. App. at 304. The Veteran’s claims file does not contain a medical opinion linking his current back disability to his active service or showing that it was caused or aggravated by his service-connected right knee strain with arthritis. Further, the Board finds the evidence insufficient to establish that the Veteran sustained injuries to his left knee or low back during active service, or that he experienced left knee or low back symptoms at the time, and that his statements on this issue are not credible. In general, there must be a proper foundation to draw adverse inferences against the credibility of testimony from silence in the record. Fountain v. McDonald, 27 Vet. App. 258, 272 (2015); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Such a foundation may be established by finding that the fact being claimed would ordinarily have been recorded in the available records had it occurred. Fountain, 27 Vet. App. at 272; Buczynski, 24 Vet. App. at 224. The Board may not rely on an absence of treatment without explaining “why the appellant would reasonably have been expected to report his symptoms to medical providers.” Fountain, 27. Vet. App. at 273. The Board finds that if the Veteran had in fact experienced left knee or low back symptoms during service, whether after a football, basketball, or other sports-related injury, he would have reported such symptoms and they would have been documented in the service treatment records. In this regard, in order to establish that a claimed medical issue would ordinarily have been recorded, the Board must first consider whether it is qualified to make that determination, or whether competent medical evidence is required. See Kahana v. Shinseki, 24 Vet. App. 428, 434-35 (2011) (holding that the Board improperly found that a claimed injury would have been documented at the time, as there was no independent medical evidence to support that determination.) In this case, whether the Veteran would have reported left knee or low back pain following the above injuries, and whether such complaints would have been recorded, is not a matter of medical judgment, but one of plausibility in light of what is shown by the service treatment records. See Colvin v. Derwinski, 1 Vet. App. 171, 172 (1991) (holding that the Board is not qualified to make determinations requiring medical judgment). More specifically, the service treatment records show that the Veteran reported right knee symptoms on several occasions, including after September 1968 and October 1968 football injuries and a December 1968 basketball injury, and also sought treatment for a number of other medical conditions. When he sought treatment for sports-related musculoskeletal injuries and other conditions, his symptoms and the treatment provided were recorded. Therefore, the Board finds the service treatment records sufficient to conclude that had the Veteran been treated for a left knee or low back injury or symptoms, such treatment or complaint would have been documented. The Board also observes that the several VA medical opinions, in noting that the examiner could not locate any documentation of a diagnosis, evaluation, or treatment for a left knee or low back condition in the service treatment records, implies that such treatment would ordinarily have been recorded had it occurred. These statements constitute independent competent medical evidence from a medical professional supporting the Board’s conclusion that if the Veteran in fact sustained a left knee or low back injury in service or experienced left knee or low back pain during service, such treatment would ordinarily have been recorded. To the extent there is a possibility that the Veteran experienced left knee or low back pain but never sought treatment for it during his active service—although he has not denied getting treatment for left knee or low back symptoms during service —the Board finds that possibility to be implausible. First, as the Veteran sought treatment for numerous other medical conditions, including for right knee injuries on several occasions, he clearly was not reticent about getting medical attention for his symptoms. Further, the Veteran’s service treatment records reflect follow-up visits and an X-ray relating to his right knee injuries. It thus seems implausible he would have stopped at simply reporting his right knee symptoms after sports-related injuries, and not mentioned a left knee or low back injury or symptoms, had such been present. While the left knee or low back pain may have developed more gradually, so that he did not experience or notice it initially after his reported injuries, the Board still finds it implausible he would not have subsequently mentioned left knee or low back pain during the remaining months of his service if he experienced such pain, when he readily sought treatment for other conditions. The Board further finds, and in the alternative, that even if the silence in the service treatment records were not a sufficient foundation on which to base its determination that the Veteran’s statements regarding his in-service left knee or low back sports-related injuries and symptoms lack credibility, such statements alone are simply not sufficient to overcome the considerable void in the evidence, especially when they have only been proffered in the context of supporting this claim, and many years after his separation from service. He may be misrepresenting that history for the purpose of establishing entitlement to benefits. In light of the above, the Board finds that the lay statements from the Veteran and his mother and friends indicating that he sustained such an injury and continuing symptoms since service are not credible. See October 2015 Hearing Transcript; see also September 19, 2009 VA Form 21-4138, Statement in Support of Claim; September 22, 2009 VA Form 21-4138; September 23, 2009 VA Form 21-4138; and May 19, 2013 VA Form 21-4138. Of note, in May 2016 the Board remanded the Veteran’s claims for service connection for a left knee disability and low back disability, in part, for VA examinations and medical opinions to determine the nature and etiology of the Veteran’s disabilities. The Board instructed the examiner to provide an opinion as to whether any current left knee disorder had its clinical onset during his active service or is related to any incident of service, to include from playing contact sports such as basketball and football and/or repetitive use and whether it is related to his right knee disorder, to include by any altered gait associated therewith. Additionally, in May 2016, the Board instructed the examiner to provide an opinion as to whether any current low back disorder had its clinical onset during his active service or is related to any incident of service, to include from playing contact sports such as basketball and football and whether it is related to his right knee disorder. The Board remanded the claims again in July 2017 for the same medical opinions. The Veteran’s claims were again remanded in May 2020 to obtain opinions concerning whether the Veteran’s left knee disorder and low back disorder were aggravated by his right knee disorder, to include any alteration in gait associated therewith. The Board’s finding in this decision that the credible evidence does not establish a left knee or low back in-service injury or symptoms, and by the same token does not establish a continuity of symptoms after service, is not in conflict with the Board’s prior remands and does not constitute a reversal in its findings on this issue. Thus, there has not been a denial of fair process. More specifically, in Smith v. Wilkie, 32 Vet. App. 332, 338 (2020), the Court held that when “VA’s actions reasonably—but mistakenly—lead a claimant to conclude that a factual matter has been resolved favorably, the claimant has not properly received notification concerning the information or evidence necessary to substantiate the claim, lacks a meaningful opportunity to responded, and is denied fair process.” In that case, the Board had remanded a claim with instructions to the examiner to accept as credible the appellant’s testimony regarding an in-service shoulder injury.” Id. at 335. The Board subsequently determined in the decision denying the claim that the appellant’s statements regarding the in-service shoulder injury were not credible. Id. at 335-36. The Court found that the Board’s prior remand directives had reasonably led the appellant to conclude that this issue had already been resolved in his favor. Id. at 338. The Court therefore concluded that the appellant was denied fair process, since he was not notified of the Board’s reversal or provided an opportunity to respond with argument or evidence. Id. at 339. In this case, the Veteran has not been denied fair process in the Board’s determination that his statements are not credible regarding an in-service left knee or low back injury or symptoms. There has been no “reversal” in the Board’s findings on this issue, and he has not reasonably been led to believe that the Board previously found it credible that he sustained a left knee or low back injury in service or had left knee or low back symptoms during or ever since service. Unlike the Smith case, the Board did not instruct the examiner to accept the Veteran’s testimony as true or credible, and did not otherwise imply in the body of the remand or its directives that it found the Veteran’s statements to be credible on this issue. Consistent with the Board’s own finding, the VA medical opinions found that there was no evidence that the Veteran sustained a left knee or low back in-service injury or symptoms. Further, adequate opinions were provided as to whether the Veteran’s left knee and low back disabilities were caused by his playing contact sports, such as basketball and football, and/or repetitive use during service, which are distinct from sustaining an actual left knee or low back injury. The lay statements contained in the Veteran’s claims file that his current left knee and low back disability are related to any incident(s) of service events are not competent, as the matter of whether a condition diagnosed many years after service is related to an incident of service is a complex medical determination. Further, the VA medical opinions carry more weight, as these opinions represent the conclusions of a medical professional based on the Veteran’s medical history, relevant medical literature, and the clinical findings made on examination. See Nieves-Rodriguez, 22 Vet. App. at 304. In sum, for the reasons discussed above, the probative evidence of record establishes that the Veteran’s current left knee and low back disorders did not have their onset during service and are not related to any incident of service, and were not caused or aggravated by his service-connected right knee disorder. (Continued on the next page)   While the Veteran advised that he sought treatment for his left knee and low back disability soon after his active service, his claims file does not contain evidence of a disability or treatment until decades after his active service. Because the credible evidence does not show that the Veteran’s left knee joint osteoarthritis and degenerative arthritis lumbar spine manifested within a year of service separation, or that left knee or low back symptoms were noted during service or a presumptive period, service connection cannot be established based on chronicity or a continuity of symptomatology, or for arthritis that manifests to a degree of 10 percent or more within one year of service separation. See 38 C.F.R. §§ 3.303(b), 3.307, 3.309(a). Because the preponderance of the evidence is against the Veteran’s claims for service connection, the benefit-of-the-doubt rule does not apply, and the claims for service connection are denied. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sean Mussey, 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.