Citation Nr: 21003805 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 18-29 880 DATE: January 22, 2021 ORDER Entitlement to an extension of a temporary total disability rating, beyond September 30, 2017, for convalescence due to right below the knee amputation (BKA) is denied. Entitlement to a disability rating in excess of 40 percent for status post right BKA is denied. Entitlement to a disability rating in excess of 10 percent for right knee degenerative joint disease is denied. Entitlement to an effective date earlier than May 26, 2017, for the increased evaluation of left ankle degenerative changes with sprains is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for left ankle degenerative changes with sprains is remanded. FINDINGS OF FACT 1. The preponderance of the evidence reflects the Veteran did not require convalescence beyond September 30, 2017 following his July 13, 2017 right leg BKA. 2. The Veteran's right leg BKA is manifested as an amputation at a lower level, permitting prosthesis. 3. Throughout the entirety of the appeal, the Veteran's right knee disability has at worst been manifested, in pertinent part, by flexion limited to 45 degrees. 4. There is no legal or factual basis for the assignment of an earlier effective date for a 10 percent rating for the Veteran’s left ankle disability. CONCLUSIONS OF LAW 1. The criteria for an extension of a temporary total rating due to treatment requiring convalescence for a service-connected disability have not been met. 38 U.S.C. § 5107; 38 C.F.R. § 4.30. 2. The criteria for a disability rating in excess of 40 percent for right below-the-knee amputation have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, §§ 4.3, 4.7, 4.104, Diagnostic Code (DC) 5165. 3. The criteria for a disability rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.159, 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5003-5260. 4. The criteria for an earlier effective date for a 10 percent disability rating for a left ankle disability are not met. 38 U.S.C. §§ 5107, 5110, 5121; 38 C.F.R. §§ 3.102, 3.151, 3.155, 3.160, 3.400, 3.816(c), 3.1000, 4.71A, DC 5003-5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1977 to December 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2018 and March 2018 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in March 2020 and were remanded for additional development. The case is once again before the Board. The Veteran testified at a hearing conducted by the undersigned Veterans Law Judge in January 2019. A transcript of the hearing has been associated with the claims file. Extension of a temporary total disability rating for below the knee right leg amputation is denied. The Veteran was assigned a temporary total rating for his BKA from July 13, 2017, the date of the Veteran’s surgery, to September 30, 2017. Thereafter he was assigned a disability rating of 40 percent for his right leg below the knee amputation. 38 C.F.R. § 4.71a, DC 5165. The Veteran seeks to extend the temporary total rating for his right BKA. A temporary total (100 percent) disability rating for convalescence purposes will be assigned, for up to three months, without regard to other provisions of the Rating Schedule, when it is established that treatment of a service-connected disability results in: (1) surgery necessitating at least one month of convalescence; (2) surgery with severe post-operative residuals such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body case, or the necessity for home confinement, or the necessity for continued use of a wheelchair or crutches (regular weight bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30(a)(1)-(3). An extension of one, two, or three months of a temporary total evaluation may be granted based on the factors enumerated above. 38 C.F.R. § 4.30(b). Extensions of one to six months beyond the initial six-month temporary total evaluation may be made upon approval of the Veterans Service Center Manager. 38 C.F.R. § 4.30(b)(2). “Convalescence” is defined as “the stage of recovery following an attack of disease, a surgical operation, or an injury.” See Felden v. West, 11 Vet. App. 427, 430 (1998) (defining “recovery” as “the act of regaining or retuning toward a normal or healthy state”). The purpose of a temporary total evaluation is to aid a claimant during the immediate post-surgical period when he or she may have incompletely healed wounds or may be wheelchair-bound, or when there may be similar circumstances indicative of transient incapacitation associated with recuperation from the immediate effects of an operation. 38 C.F.R. § 4.30. Thereafter, any chronic residual disability after surgery is rated under the schedular criteria for the disability, and not rated under 38 C.F.R. § 4.30. A review of the Veteran’s treatment records reflects that the Veteran underwent a BKA on July 13, 2017. The Veteran was discharged on July 18, 2017 from the hospital to an acute rehabilitation facility. The discharge summary indicates the Veteran would be transferred to an acute rehabilitation facility for one to two weeks and then followed by his surgeon (Dr. K.L.). The Veteran has not submitted the records from the private rehabilitation facility, nor otherwise authorized the VA to obtain them. The record contains the follow up treatment notes from the surgeon’s office demonstrating that the Veteran progressed well. An August 8, 2017 note indicates that the Veteran was home, after a little over two weeks at the rehabilitation facility. On August 29, 2017 the surgeon reported the incision was fully healed and the scar was maturing. The Veteran was able to fully extend his right knee and flex to 120 degrees. The Veteran was cleared to begin donning a prosthesis and would be fitted within the week. On October 31, 2017, the notes reflected the Veteran was doing well. He was having issues with his prosthesis rubbing on his knees and some balance issues but was working hard at physical therapy and getting adjustments as needed. The surgeon reported the stump looked nice and had no signs of prominences and no evidence of ingrown hair. Rehabilitation notes from March 2018 to February 2019 report that the Veteran was able to ambulate at home for short distances. See Private medical records received December 2019. Additionally, the records provide his history of present illness indicating he received two socket revisions with his most recent version of prosthesis on October 12, 2017. At his January 2019 hearing, the Veteran testified that he had three weeks of rehabilitation after his initial surgery and did not get his prosthesis until December 2017. While the Veteran is competent to testify on observable matters such as the date he received his prosthesis, the Board finds the above mention records to be a more accurate timeline in this instance. Curry v. Brown, 7 Vet. App. 59 (1994). The record demonstrates that the Veteran’s prosthesis underwent several adjustments between September and December of 2017, however he received his initial prosthesis in September 2017. The weight of competent evidence is that a further extension beyond September 30, 2017 of the Veteran's temporary total evaluation is not warranted. Although the Veteran continued to experience impairment beyond this date, the evidence reflects that the surgical procedure, after September 30, 2017, did not (1) result in incompletely healed surgical healed wounds, stumps or recent amputations; (2) require therapeutic immobilization of one major joint or more; (3) necessitate house confinement or the use of a wheelchair or crutches (regular weight bearing prohibited); or (4) necessitate immobilization by cast. A temporary total rating based on convalescence is not appropriate simply on the basis that the underlying disability continues to be symptomatic following surgery. The appropriate schedular rating is intended to cover this situation and as previously noted, the Veteran is in receipt of the schedular evaluation of 40 percent under the applicable DC 5165. The evidence of record certainly shows that the Veteran's disability has impacted his ability to work. The level of interference shown is contemplated by the disability evaluation for his BKA as well as a total disability based on individual unemployability rating. The evidence of record does not show that convalescence beyond September 30, 2017, was required. Hence, further extension of the convalescent rating is not warranted. Entitlement to an extension of a temporary total disability evaluation for convalescence following surgery beyond September 30, 2017 is denied. The preponderance of evidence is against the Veteran's claim for a temporary total evaluation for a service-connected BKA requiring convalescence, and there are no doubts to be resolved. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Increased Rating Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the action. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling, and pain on movement. 38 C.F.R. § 4.45. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). Further, although pain may cause a functional loss, pain itself does not constitute functional loss. Under 38 C.F.R. § 4.59, at least the minimum compensable rating is warranted for actually painful, unstable, or malaligned joints. The plain language of § 4.59 indicates that it 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. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016) (holding that the criteria of 38 C.F.R. § 4.59 applies in foot disabilities involving pain such as Diagnostic Code 5280). The provisions of 38 C.F.R. § 4.49 relating to painful motion are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1, 4-5 (2011). Status post right BKA As discussed above, the Veteran underwent a right BKA. After the Veteran’s initial temporary total rating, the Veteran was granted a 40 percent rating for his BKA under DC 5165. Under DC 5165, a 40 percent rating is assigned for amputation at a lower level, permitting prosthesis. 38 C.F.R. § 4.71a, DC 5165. The Veteran has also been awarded special monthly compensation (SMC) for anatomical loss of one foot for the entire appeal period. Under, DC 5164, a 60 percent rating is assigned for amputation not improvable by prosthesis controlled by natural knee action. 38 C.F.R. § 4.71a, DC 5164. As discussed above, the medical records demonstrate that the Veteran has progressed with his prosthesis. In March 2018, the Veteran’s surgeon stated that the Veteran was able to walk with his prosthesis in therapy. As of March 2020, the Veteran had been approved for 69 visits of formal physical therapy. It was recommended that he begin to receive treatment from a skilled therapist to set and meet individualized goals for functional improvement. See CAPRI received March 2020. Further, at his January 2019 Board hearing the Veteran testified that he continues to make progress with his prosthetic, that the one he has now is “almost perfect.” The Veteran's right BKA is best approximated by the 40 percent criteria under DC 5165. The Veteran’s right BKA does not rise to the level contemplated by the 60 percent criteria. A 60 percent disability rating under DC 5164 has been considered but the Veteran's right BKA is improvable by prosthesis controlled by natural knee action as indicated by the medical records. See 38 C.F.R. § 4.71a.; Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In sum, the Board finds that the competent medical and lay evidence of record supports maintaining the assignment of a 40 percent evaluation for the Veteran’s right BKA as there is no evidence of amputation not improvable by prosthesis controlled by natural knee action. As noted by the Veteran’s surgeon, the Veteran's right BKA healed with no residuals. As there does not appear to be any clinical evidence that the Veteran's amputation is not improvable by prosthesis controlled by natural knee action, an increased evaluation is not warranted. Right knee The Veteran’s right knee disability is currently assigned a 10 percent rating for arthritis under DC 5003-5260. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. DC 5003, for degenerative arthritis, provides for evaluation of a service-connected disability based on limitation of motion of the affected joint. DC 5260 provides disability ratings based on limitation of flexion of the leg. Flexion of the leg limited to 60 degrees warrants a 0 percent rating. Flexion of the leg limited to 45 degrees warrants a 10 percent rating. Flexion of the leg limited to 30 degrees warrants a 20 percent rating. Flexion of the leg limited to 15 degrees warrants a 30 percent rating. The ratings criteria also contemplate limitation of extension under DC 5261. Extension of the leg limited to 5 degrees warrants a 0 percent rating. Extension of the leg limited to 10 degrees warrants a 10 percent rating. Extension of the leg limited to 15 degrees warrants a 20 percent rating. Extension of the leg limited to 20 degrees warrants a 30 percent rating. Extension of the leg limited to 30 degrees warrants a 40 percent rating. Extension of the leg limited to 45 degrees warrants a 50 percent rating. Other diagnostic codes relating to the knee are DC 5256 for ankylosis, DC 5258 and 5259 for symptomatic dislocation or removal of semilunar cartilage, DC 5262 for impairment of tibia and fibula, and DC 5263 for genu recurvatum. As these conditions are not shown on examination of the Veteran, or in the medical evidence of record, the Board finds that application of these diagnostic codes is not warranted. 38 C.F.R. § 4.71a. The Veteran presented for three VA examinations during the appeal period: February 2018, November 2018, and July 2019. At his January 2019 Board hearing, the Veteran testified that his left side knee pain had increased since his right BKA. The Veteran did not address the right side and all three right knee examinations were performed after his BKA, with the July 2019 examination performed after his assertion of worsening. In February 2018, the Veteran’s active range of motion measurement for extension to flexion were zero to 45 degrees. The Veteran was able to perform the repetitive use test without additional functional loss. The Veteran reported painful flare-ups, described as “screaming” after therapy; however, the examiner was unable to quantify the functional loss in terms of range of motion. The Veteran’s strength and stability tests were normal. The examiner reported that the Veteran wears a prosthetic on his lower right leg and uses a scooter to assist his movement. In November 2018, the Veteran reported pain and soreness in his right knee. Range of motion measurements were extension to 0 degrees and flexion to 45 degrees. The Veteran was able to perform repetitive use testing with a least three repetitions without any additional loss in range of motion. However, the examiner was unable to determine if there was additional functional impairment with repeated use or during flare-ups. The Veteran’s stability tests were normal, and his strength test resulted in 3/5, indicating active movement against gravity. Upon examination in July 2019, the Veteran reported painful flare-ups and difficulty standing, walking, and getting up and down from chairs due to his prosthetic. Physical testing revealed extension and flexion from zero to 110 degrees. The Veteran was able to perform the repetitive use test without additional loss of range of motion. However, his range of motion after repeated use was decreased to extension and flexion from zero to 45 degree due to pain. Similarly, he described flare-ups resulting in extension and flexion from zero to 45 degrees due to pain. The Veteran’s stability tests were normal, and his strength test revealed improvement since the last examination to a 5/5, indicating normal strength. The examiner reported that the Veteran continues to wear a prosthetic on his lower right leg and use a scooter to assist his movement. Also of record are VA and private medical treatment records, which reflect the Veteran reporting knee pain. These records do not reflect symptomology worse than what is described in the VA examinations of record. The Veteran’s private orthopedist, who monitored his BKA, reported a right knee full extension (0 degrees) and a flexion between 110 and 120 degrees. See October 2017 through March 2018 private treatment records. In assessing the evidence of record, the Board acknowledges the Veteran is competent to provide evidence regarding the lay observable symptoms associated with his knee disability. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). However, he is not competent to identify a specific level of disability of his right knee disability according to the appropriate DC. Such competent evidence concerning the nature and extent of the Veteran’s knee disability has been provided by VA medical professionals who have examined him. The medical findings directly address the criteria under which the right knee disability is evaluated. Id. Therefore, in this regard, the Board must rely on the medical evidence of record. The medical findings directly address the criteria under which the right knee disability is evaluated. The Board finds these clinical records to be competent, objective, and probative evidence of record, and is therefore afforded greater weight than the Veteran’s subjective complaints of increased symptomatology. Even when considering the provisions of 38 C.F.R. §§ 4.40, 4.45 and 4.59, as well as the symptoms reported in the light most favorably to the Veteran, the evidence does not show the functional equivalent of disability required for a higher evaluation. When looking at the competent and credible evidence of record, the Veteran’s flexion was no worse than 45 degrees, which does not rise to the level of criteria necessary to establish a 20 percent disability rating under DC 5260. In this capacity the Board has considered the lay statements describing the Veteran’s balance concerns. The Veteran’s three VA examiners conducted four different tests to determine whether there was instability of the knee joint and each test indicated that the Veteran’s knee was stable. Moreover, the Veteran’s statements relate to concerns with his prosthesis and not to the instability of his knee. Notably, at his January 2019 Board hearing the Veteran testified that he was still trying to figure out his balance and equilibrium with the prosthesis. C.f., English v. Wilkie, 30 Vet. App. 347 (2018) (holding that the Board may weigh competent lay evidence of lateral knee instability and is free to discount lay evidence provided it supports its conclusion with an adequate statement of reasons or bases). Accordingly, while the Board has considered the Veteran’s statements, it finds that the medical evidence of record is more probative. In light of the foregoing, the Board finds that entitlement to a disability rating in excess of 10 percent for right knee arthritis is not warranted. As noted above, right knee pain range of motion was, at its worst, 0 to 45 degrees throughout the appeal period which is contemplated by the 10 percent evaluation. Therefore, because knee flexion is not limited to 30 degrees or less and extension is not limited to 15 degrees or more, an increased rating is not warranted based on objective clinical findings showing decreased range of motion. 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. Accordingly, entitlement to disability ratings in excess of 10 percent for right knee arthritis is denied. Entitlement to an effective date earlier than May 26, 2017, for the increased evaluation of left ankle degenerative changes with sprains is denied. In general, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. The amendments also, inter alia, eliminate the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims to reopen. See 79 Fed. Reg. 57,660 (Sept. 25, 2014), codified as amended at 38 C.F.R. §§ 3.151, 3.155 (2016). The amended regulations, however, apply only to claims filed on or after March 24, 2015. Generally, the effective date of an award based on an original claim shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). However, an effective date for increased disability compensation may be earlier than the date of receipt of the application. In such cases, the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if a claim is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400(o)(2). If the increase occurred more than one year prior to the claim, the increase is effective the date of claim; if the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o). “An effective date earlier than the date of claim may be assigned if an increase in disability is shown within the one-year (“look-back”) period prior to the receipt of a claim, but not where the increase is shown prior to the one-year period preceding the receipt of the claim.” See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). The Veteran contends that he should be granted an effective date earlier than May 26, 2017 for the 10 percent rating increase for his left ankle disability. The Veteran originally filed a claim for his left ankle disability in August 2007. In an August 2008 rating decision, the RO granted service connection for a left ankle disability with a noncompensable disability rating effective August 29, 2007. In September 2008, the Veteran submitted additional medical evidence. After subsequent development, the RO continued the noncompensable rating in a February 2009 rating decision. The Veteran did not file a Notice of Disagreement (NOD) with the February 2009 rating decision; therefore, the decision became final. In May 2017, the Veteran filed an increased rating claim for his left ankle disability. In a March 2018 decision, the RO increased the Veteran's disability rating to 10 percent, effective May 26, 2017, the date of his claim. An appeal of this decision was perfected to the Board. The Board has considered whether there is evidence in the Veteran’s record within the one year prior to May 26, 2017. The first indication that the Veteran’s ankle disability worsened was in his February 2018 examination. The Board finds that the records do not indicate a worsening of the Veteran’s condition warranting an earlier effective date for the award of a 10 percent rating. The Board has thoroughly reviewed the evidence of record to determine if the Veteran filed a claim, an informal claim, or expressed a written intent to file a claim for an increased rating for his left ankle after the final February 2009 rating decision and prior to March 26, 2017. However, the evidence of record does not show any formal or informal claim for an increased rating for the Veteran’s left ankle prior to March 26, 2017. The Veteran’s claim regarding an increased rating for his left ankle disability is being remanded, in part, to obtain a new examination regarding his left ankle disability. However, the issue of an earlier effective date for the award of a 10 percent disability rating for the Veteran's left ankle disability is not intertwined with the issue being remanded. Any additional development regarding the Veteran's increased rating claim would not affect the Veteran's effective date for the increased rating for his left ankle disability. Therefore, the Board finds no prejudice to the Veteran in proceeding with a decision on this claim. In sum, the Board finds that as the Veteran did not perfect an appeal for the February 2009 RO decision, it became final and the Veteran did not file a claim for an increased evaluation until May 26, 2017. The Veteran is not entitled to an earlier effective date for the increased rating for his left ankle disability. In reaching this conclusion, the benefit of the doubt doctrine was considered. However, as a preponderance of evidence is against the claim, this doctrine is not for application. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND The Veteran maintains his left ankle disability is more severe than currently rated. The Veteran underwent a VA examination in February 2018. The examiner reported the Veteran’s left ankle range of motion as dorsiflexion to 10 degrees and plantar flexions to 30 degrees. The Veteran was able to complete the repetitive use test without any additional functional loss. The Veteran reported flare-ups. However, the examiner was unable to determine the functional loss during flare-ups or repeated use because the tests were not available during the examination. The Board finds the February 2018 VA examination of the left knee is inadequate because the examiner did not specifically address the Veteran's reported flare-ups pursuant to Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Thus, a new examination for the left knee is also warranted. Additionally, in January 2019, the Veteran testified that his left ankle pain was increasing since his right BKA. See January 2019 hearing transcript. Thus, as there is evidence of a potential increase in severity of the Veteran's disability, the Board finds that a new examination is needed to fully and fairly evaluate his claim. See Snuffer v. Gober, 10 Vet. App. 400, 402-03 (1997). The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the current severity of his service-connected left ankle disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If an opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page)   If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.V. Palatt, 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.