Citation Nr: 21004781 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 16-20 390 DATE: January 28, 2021 ORDER New and material evidence having been presented, reopening of the claim of service connection for left ankle arthrosis is granted. New and material evidence having been presented, reopening of the claim of service connection for right ankle arthrosis is granted. Service connection for a neck disability is denied. REMANDED Service connection for left ankle arthrosis is remanded. Service connection for right ankle arthrosis is remanded. Service connection for a left hip disorder is remanded. Service connection for a right hip disorder is remanded. Service connection for urinary incontinence is remanded. Service connection for a back disorder is remanded. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. In an unappealed May 1982 rating decision, the Veteran was denied service connection for a bilateral ankle condition, diagnosed as bilateral ankle arthrosis. 2. The evidence associated with the claims file after the May 1982 rating decision is not cumulative or redundant of the evidence previously of record, and relates to an unestablished fact necessary to substantiate the claims for arthrosis of each ankle. 3. A chronic neck disability, including arthritis, strain, and degenerative disc disease, first manifested many years after service and is unrelated to military service and any event or occurrence during service. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of service connection for left ankle arthrosis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen a claim of service connection for right ankle arthrosis. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for a neck disability are not met. 38 U.S.C. § 1131; 38 C.F.R. § 3.102, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service for two months and two days, from December 7, 1981, to February 6, 1982. His DD 214 reflects that he was discharged because he did not meet “procurement medical fitness standards.” In the Veteran’s original claim for service connection, received on March 30, 1982, he requested compensation for “bilateral ankle arthrosis secondary to chronic longstanding pes planus and gastrocnemius equinus [] 12-8-81.” He reported having a bilateral ankle injury during service on December 8, 1981, for which he was treated. He indicated a willingness to report for a VA examination and stated that he could not afford a private physician. The Veteran was notified by RO letter of letter of May 13, 1982, of a rating decision that month which denied service connection for a bilateral ankle condition. He was notified by RO letter of June 16, 1982, that his “bilateral ankle arthrosis was not incurred in or aggravated by [his] service, because it is a constitutional developmental abnormality. In other words, it is a disability related to [his] own physical or mental development which would have become apparent whether [he] had military service or not. The law does not permit payment of compensation for this type of disability.” By letter dated and received May 13, 2013, the Veteran asked this his correspondence be considered an informal claim for compensation for “back, neck, hips, knees, ankles, depression, and urinary and fecal incontinence.” The Veteran appealed a June 23, 2014 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) which denied reopening of the claims for service connection for disabilities of the ankles, and denied service connection for disabilities of the back, neck, hips, knees, depression, and fecal and urinary continence. An October 2018 Board of Veterans’ Appeals (Board) decision found that there was no new and material evidence to reopen the claims for service connection for arthrosis of the left ankle and arthrosis of the right ankle, and denied service connection for a left hip disability, a right hip disability, a left knee disability, a right knee disability, fecal incontinence, urinary incontinence, and a major depressive disorder (MDD). The Board remanded claims for service connection for a back disability and service connection for a neck disability for, in pertinent part, VA examinations for nexus opinions. The Board also remanded a claim for a TDIU on the grounds that it was inextricably intertwined with the claims being remanded. However, the Board notes that the Veteran was not then and is still not service connected for any disability. A TDIU rating may only be awarded when premised on individual unemployability due solely to service-connected disabilities. Moreover, the Veteran has never filed a VA Form 21-8940, Application for Increased Compensation Based on Individual Unemployability. See RO letter of July 1, 2014 (notifying him of the June 2014 rating which is appealed and requesting that he execute and return a VA Form 21-8940, previously sent in April 2014) and RO letter of October 2, 2014 (in which he was again requested to execute and return VA Form 21-8940). The Veteran appealed the Board denials of reopening of the claim for service connection for left ankle arthrosis, reopening of the claim for service connection for right ankle arthrosis, the denial of service connection for a left hip disability, the denial of service connection for a right hip disability, and the denial of service connection for urinary incontinence, to the U.S. Court of Appeals for Veterans Claims (Court). He did not appeal the denials of service connection for a left knee disability, a right knee disability, fecal incontinence, and a major depressive disorder. Pursuant to a Joint Motion for Partial Remand (JMR), the Court entered an Order in January 2020, vacating that portion of the October 2018 Board decision which denied reopening of the claims for service connection for arthrosis of each ankle, disabilities of each hip, and urinary incontinence. Accordingly, these matters have been returned to the Board for further adjudication. In a February 3, 2020 letter the Veteran’s attorney requested 90 days within which to submit additional evidence, and also requested copies of any new evidence since the October 2018 Board decision. In a May 7, 2020 letter, the attorney requested copies of VA examinations in October 2019 and opinions rendered in March 2020. An August 2020 letter from the Board acknowledged the attorney’s request and provided an updated copy of the electronic record since October 2020. Although this was not all of the records since the October 2018 Board decision, the fact is that the Veteran’s attorney has been granted access to the Veteran’s electronic claim file and, so, as access to virtually all records available to VA adjudicators. By another letter in August 2020 the Board’s Deputy Vice Chairman granted the request for an additional 90 days to obtain and submit additional evidence or argument. While additional argument has been made, in May 2020, no additional evidence has been submitted. Background A December 2, 1981, Screening Physical Examination for Army Recruitment, “Spear Worksheet,” reflects that the Veteran reported not having a painful or “trick” joint, “fallen arches (flat feet),” difficulty standing for longer periods of time, loss of normal movement of any limb or joint, a nervous condition, or back trouble. In an undated “Supplemental Medical Screening Form” the Veteran reported not having or having had: a trick knee, locking of a knee, giving way of a knee, recurrent back pain, foot pain, painful corns or calluses, having been seen by a doctor for a nervous problem, or a ruptured disc. A December 4, 1981 entrance examination found no abnormality of the Veteran’s neck, genitourinary system, feet, lower extremities, or spine. In an adjunction medical history questionnaire he reported not having or having had swollen or painful joints, cramps in his legs, broken bones, frequent or painful urination; arthritis, rheumatism or bursitis; bone or other deformity; lameness; recurrent back pain; “trick” or locked knee; foot trouble. The examiner’s notes indicated that the Veteran had no history of protein in his urine. A January 7, 1982 clinical note shows that the Veteran complained of having bilateral ankle pain of one month duration. On examination, as to his right ankle he had edema, heat, and crepitus, but his left ankle was within normal limits. He had edema of the achilles tendon of each ankle. The assessment was to rule out a fracture of each ankle and achilles tendonitis. A January 11, 1982 clinical note reflects that the Veteran had severe pes planus. A medical discharge was recommended because he could not run or march. He was very tender over the fibular malleolus. He had twisted his right ankle at home. He had tenderness of the left ankle which had been of a gradual onset. The impression was severe pes planus. A January 12, 1982, Entrance Physical Standards Board (EPSBD) Proceedings reflects that the Veteran had a chief complaint of severe ankle pain. His history was that he had had sharp bilateral ankle pain of approximately one month's duration. The pain began insidiously on December 8, 1981, in the left ankle and began acutely in the right ankle on December 18, 1981 when he was running in his boots and hit a branch on his right ankle. The pain was severe in quality and was noticed with running and marching, such that his ankles "give out on him" and he was unable to run or march. On physical examination he had exquisite tenderness over the lateral aspect of both ankles, bilaterally. There was an apparent gastrocnemius soleus equinus, bilaterally, and severe rigid pes planus, bilaterally, as well. X-rays were consistent with pes planus with bilateral projection angle of talar declination; low angle of calcaneal inclination, and significantly there was increased navicular cuboid overlap, and osteophytic proliferation on the dorsal neck of the talus. The diagnosis was bilateral ankle arthrosis secondary to chronic longstanding pes planus and gastrocnemius equinus. It was found that he had been unfit for induction, and should be released from training and placed on light indoor duty only. His profile and assignment limitations were no crawling, stooping, running, jumping, marching or standing for long periods, i.e., greater than 15 minutes. In the Veteran’s original claim for service connection, received on March 30, 1982, he requested compensation for “bilateral ankle arthrosis secondary to chronic longstanding pes planus and gastrocnemius equinus [] 12-8-81.” He reported having a bilateral ankle injury during service on December 8, 1981, for which he was treated. He indicated a willingness to report for a VA examination and stated that he could not afford a private physician. The Veteran was notified by RO letter of letter of May 13, 1982, of a rating decision that month which denied service connection for a bilateral ankle condition. He was notified by RO letter of June 16, 1982, that his “bilateral ankle arthrosis was not incurred in or aggravated by [his] service, because it is a constitutional developmental abnormality. In other words, it is a disability related to [his] own physical or mental development which would have become apparent whether [he] had military service or not. The law does not permit payment of compensation for this type of disability.” By letter dated and received May 13, 2013, the Veteran asked this his correspondence be considered an informal claim for compensation for “back, neck, hips, knees, ankles, depression, and urinary and fecal incontinence.” In VA Form 21-526, Application for Compensation and/or Pension, received on August 22, 2013, the Veteran reported that he had stretching and tearing of ligaments in his ankles, and he had back pain. He reported having been run over by a car on September 5, 2000. He had received treatment at “St. Mary’s” consisting of spinal injections for back pain. He had never received VA treatment. In item “14” he reported that disabilities that he was claiming as related to “Agent Orange or other herbicide exposure” were “back injury – depression [] torn ligaments in ankle[s].” In a March 2014 handwritten letter, the Veteran reported that during military service, while marching, his feet got caught on a branch or roots causing him to fall, injuring his back and both ankles, especially in his right ankle which was badly swollen. He was then sent for a medical evaluation and after X-rays were taken a specialist told him he had a choice of either having surgery on both ankles and get re-cycled, or take a medical discharge. Since then he had had problems with his back and ankles. In 1985 his back went out and he was unable to straighten his back but did not seek treatment because he did not have insurance. He had X-rays in 1990 of his back which had revealed a “chip bone” stuck in a nerve in his back, for which he had a spinal injection. In 2007 he developed a mass in his back, where the chipped bone was stuck, and it grew larger in 2008. He was scheduled to have back surgery in March 2014 at St. Mary’s, and was to follow-up later in March 2013 with his primary physician at “Outreach Community Health Center.” In a March 2014 letter, a female friend of the Veteran reported that she had known him since 1994. She had noticed he had a limp, and he had told her that he had injured his right ankle and back during military service. He was always complaining about his back and ankle. Over the years, his pain had worsened. He had developed a large mass on the posterior aspect of his neck of unknown cause. He was scheduled for surgery in March 2014. By RO letter of April 21, 2014, the Veteran was requested to execute and return an enclosed authorization form to allow the RO to obtain records from the Outreach Community Health Center. In a May 2014 letter, the Veteran reported that all of his medical appointments took place at “St. Mary of Columbia.” On VA examination of June 9, 2014, of the Veteran’s ankles the Veteran’s claim file was reviewed. After an examination the diagnosis was bilateral arthrosis of the ankles. It was reported that he had been discharged from military service, during basic training, “when his foot/ankle disorder that existed prior to service was discovered.” The Veteran reported that he had an injury during service; however, there was no treatment for an injury. He had not seen a clinician for an ankle disorder. He had pain in the morning. On physical examination the Veteran had decreased motion in dorsiflexion and plantar flexion in each ankle. It was reported that he did not have any functional loss and/or functional impairment of the ankles. He did not have localized tenderness or pain on palpation of the joints or soft tissue of either ankle. Strength was decreased, to 2/5, in each ankle in dorsiflexion and plantar flexion, but each ankle was stable. He did not have and had never had Achilles tendonitis or a rupture of the Achilles tendons. He had no scarring of the ankles. It was reported that he had severe pes planus, as well as bilateral ankle arthrosis secondary to chronic longstanding pes planus and gastrocnemius equinus. He did not use an assistive aid for ambulation. It was reported that his ankle condition did not impact his ability to work. The examiner reported that X-rays of the ankles were not taken because they were not needed. The examiner reported that the Veteran had a foot and ankle disorder (pes planus and resultant ankle derangement) that pre-dated his military service. His military service did not result in nor aggravate his underlying condition. It was further reported that “[h]e did not experience an injury as there was no care required or sought to the current time frame. Instead, his condition manifested with and was not conducive with service.” On VA examination of June 9, 2014, of the Veteran’s back the Veteran’s claim file was reviewed. The examiner reported that the Veteran did not now have and had never been diagnosed with a thoracolumbar (back) condition. The examiner stated that “[t]he [V]eteran report[ed] having low back pain since the 1990s when he started getting pain injections. He [was] getting more care and eval[u]ation through pain management. He question[ed] if a fall in basic training injured his back because all of the focus was on his ankles.” On physical examination the Veteran had painful and limited thoracolumbar motion in all planes. It was reported that he did not have any functional loss and/or functional impairment of the thoracolumbar spine. However, he did have localized tenderness or pain to palpation for joints and/or soft tissue of the thoracolumbar spine, but no muscle spasm, guarding or abnormal spinal contour. Strength was decreased, being 2/5, in flexion of each hip, extension of each knee, as well as plantar flexion and dorsiflexion of each ankle. There was no muscle atrophy. Deep tendon reflexes were normal, at 2+, at the knees and ankles, and there was no detected sensory abnormality in either lower extremity. Straight leg raising was negative, bilaterally. The examiner specifically reported that the Veteran did not have any radicular pain or any other signs of radiculopathy, and did not have intervertebral disc syndrome (IVDS). He did not use an assistive device as an ambulatory aid. He had no scarring over the thoracolumbar spine. The examiner reported that the Veteran’s thoracolumbar spine (back) condition did not impact his ability to work. It was also reported that: The veteran’s low back condition is unknown at this time and is still under work up. It is less likely than not the result of service as there is no medical evidence to support that he injured his back in service and care did not start for a back condition for about 10 years after his time in service. Records of the Social Security Administration (SSA) were received in October 2014. In his 2013 application for reconsideration of an adverse determination in 2012, the Veteran reported that the conditions limiting his ability to work were torn ankle ligaments, his arthritis, low back pain, pain down his spine, inability to hold his urine and stool, and high blood pressure. He also reported having a chipped bone in the nerves in his neck. He reported that he was currently working. He had a 12th grade education and had completed training at a welding school, and had learned to do some carpentry. He had work experience as a welder and fitter, school bus driver, and as a mechanic, including automotive mechanic. He had lasted work in 2008, as a welder and fitter. Since May 2012 he had been a caregiver for his spouse. He had had more than one job in the last 15 years before he became unable to work. He had received care at the Columbia Street St. Mary’s Hospital – Pain Management Clinic in Milwaukee, Wisconsin, for high blood pressure, pain, ankles, legs, and surgery to remove a cyst from his lower back and spine. Significantly, he also reported having been treated after a car ran him over and he injured his arm. He alleged he had been unable to work since September 1, 2009. It was also reported that he had received past treatment at the Wheaton Franciscan – St Joseph Reginal Medical Center, Outreach Community Health Centers, and Dr. D.J. These records also show that a December 2012 X-ray by Dr. D.J. had revealed mild lumbar osteoarthritis and mild cervical degenerative disc disease (DDD). Also, he had a golf ball sized lesion on the posterior aspect of his lower neck area. The case summary was that he was alleging disability due to his back, neck, cyst, and pain. An examiner reported that the Veteran was partially credible as to his reported symptoms. He was very dramatic in his complaints and resistant to examination. It was noted that he had had a lesion of his neck for several years. Cervical spine X-rays revealed degenerative changes but no bone fragments (as he had alleged). He was determined not to be entitled to SSA disability compensation. The SSA records included a December 2012 Disability report from Dr. D.J. The Veteran reported that for the last six months his right leg had been giving out due to loss of strength, requiring his use of a cane. He reported having had low back pain since 2008, which radiated somewhat to his right groin. It was reported that he had had some type of neck injury in 1996 after slipping on ice but he had not sought treatment at that time. He had developed a lesion of the posterior neck in 2007, which had been slowly growing and caused pain and limited cervical motion. He related that over the years he had had trouble holding his urine. On examination he would not move his head more than a couple of degrees. He had no trochanteric tenderness. He was resistant to straight leg raising, with very little hip abduction and adduction secondary to groin pain, and had decreased hip rotation. He had bilateral pes planus with mild bunion formation. He had full extension of both knees. Dr. D.J.’s impression was that the Veteran was very dramatic and complained of pain, but was very resistant in his physical examination. It was very difficult to say what pathology might be going on with his back or hips. Although he had a neck lesion, this did not explain why he did not have the ability to move his neck. He also had a history of chronic urinary urgency. Records of the Veteran’s earlier SSA determination, in 2012, reflect that he had been seen at the Wheaton Franciscan – St Joseph Reginal Medical Center in September 2011 because he had been dragged by a rolling car. He complained of pain and the diagnoses had been a contusion of his left shoulder, and a cervical strain, with X-rays showing osteophytes at C5-6 and C6-7. A “Case Analysis” reflect that his September 2011 injury occurred while working on a car and “[n]o pre-existing impairments were reported at that time.” In his “function report” he had stated that his pain began with the 2011 car accident. In the Veteran’s earlier SSA disability claim in 2012 he had reported that he been a body builder. He had not been able to hold his stool or urine for 15 years. A year ago (2011) he had been run over by a car and was dragged 20 feet. That was when his pain started. A May 2013 SSA request for records of the Outreach Community Health Center reflects a response that the Veteran had not been seen at that clinic. Records of the Wheaton Franciscan – St Joseph Reginal Medical Center show that he was seen at an emergency room on September 18, 2011 because while working on a car it began rolling and dragged him 15 to 20 feet and he now complained of back, neck, and right arm pain. He had had a large wound, described as a lesion, of his neck for the past two years for which he saw a dermatologist. He had no significant past medical history and had not had any prior surgeries. The primary diagnoses were a contusion of the shoulder region, strain of neck muscles, abrasions, and skin lesion. X-rays revealed no acute cervical fracture but there were mild degenerative changes and chronic disc disease and osteophytes throughout the cervical spine. A lumbar spine X-ray revealed mild osteoarthritis. In the Veteran’s correspondence in April 2016, accepted In Lieu of VA Form 9, he reported that at the time of his inservice injury when he fell he had injured his back and both ankles, and when seen for the injury he had been told he would need surgery on both ankles. On VA spinal examination in October 2019 the Veteran’s electronic records were reviewed. The diagnoses were degenerative arthritis of the spine, and osteoarthritis which was diagnosed in 2012. The examiner reported that the Veteran was released from military training due to bilateral ankle arthrosis. This was due to pain and no documented trauma. There was no fall documented in the service treatment records (STRs). According to the Veteran, while he was on the 16 mile “ruck march,” he tripped over a branch and fell forward, tearing ligaments in the ankle and tweaking his back. He had more pain of the ankle and, so, had to deal with that. He was released from basic training due to the ankle. In 1985 his back gave out and he had been having back problem since then. He did not seek medical help then because he did not have insurance. There was no documentation which corroborated the Veteran's statements. The STRs documents reflected in 1982 he received a medical release from service induction due to non-qualifying conditions of the ankle and foot. There was no documentation of any trauma nor any torn ligament or an incident of tripping during a “ruck march.” The STRs did indicate that he had had ankle pain due to running but nothing as to his back or neck. After he left military service, he worked performing asbestos removal at a company for 8 years. Per SSA documentation, he had had multiple jobs as welder/fitter, school bus driver, mechanic, and care giver, etc. As to the Veteran’s back, there was no service documentation of back problems. His current complaints were of having chronic pain through the whole body. He slept in a fetal position and, so after a while, he had pain on his shoulders and hips and would change positions. The pain started at the ankles and went up the right leg. He complained of having constant low back pain, aggravated by prolonged sitting and standing. He related that his pain would shoot through his entire body, which was worse at night and caused trouble sleeping. He stated that nothing had helped relieve the pain. He did not now seek treatment for his pain. According to SSA records he had had these symptoms starting in 2009. A 2012 physician’s record in the SSA records reflected that the Veteran mild osteoarthritis by lumbar spine X-rays and mild DDD by cervical X-rays. As to the Veteran’s neck, there was no documentation in the STRs of neck problems. He reported that his current complaint was having had surgery for what had started as a small insect bite and then grew into a mass. This was resected in 2014. He complained of pain all through the neck and having trouble turning his head. He gets occasionally had sharp pain that traveled throughout his body. He did not now seek any treatment for this. Currently he was not working and was on disability for neck, back, and shoulders. On physical examination the Veteran had pain and limited motion of the thoracolumbar spine in all planes. The pain noted on examination did not result in or cause functional loss. There was no pain on weight-bearing. There was tenderness over the T12 to L4 spinous processes and associated paraspinal muscles. However, the Veteran showed significant pain behavior, as well as non-organic signs of pain. When distracted, the examination does not indicate painful points. There was no guarding or muscle spasm of the thoracolumbar spine. He had no muscle atrophy and had normal strength, at 5/5, on bilateral hip flexion, bilateral knee extension, and in both ankles in dorsiflexion and plantar flexion. Reflexes were decreased, at 1+, at both knees and both ankles. Straight leg raising was negative, bilaterally. He had no sensory abnormality of the lower extremities. He did not have intervertebral disc syndrome (IVDS), radicular pain or other signs or symptoms due to radiculopathy. He had neurologic abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). He used a cane as an ambulatory aid due to leg pain. The examiner reported that as to any other pertinent physical findings, complications, conditions, signs or symptoms, the Veteran displayed significant pain behavior, as well as non-organic signs of pain. When distracted during the examination, he did not indicate any painful points. Veteran also displayed significant giveaway weakness during manual muscle testing. The examiner also reported that the claimed thoracolumbar spine (back) condition did not impact the Veteran’s ability to work. The examiner also stated, as to the thoracolumbar chronic pain, that osteoarthritis had been diagnosed in 2012. This was not due to any activities while in military service. There was no inservice documentation of any trauma or incident that indicated any back problems, despite the Veteran’s having utilized military medical services and had not brought up any problems with back issues. Also, according to SSA records, the Veteran had worked in manually intensive employment for many years after military discharge, and his symptoms started many years after military discharge. On VA examination of the Veteran’s neck in October 2019 the Veteran’s electronic records were reviewed. The diagnoses were degenerative arthritis, and degenerative disc disease (DDD) which had been diagnosed in 2012. The Veteran reported having any functional loss or functional impairment of the cervical spine (neck) consisting of being unable to turn the neck without turning his whole body. On physical examination the Veteran had pain in all planes of cervical spine motion and limitation of motion in all planes except flexion. He had tenderness over the C4-7 spinous processes and corresponding paraspinal muscles. He showed significant pain behavior, as well as non-organic signs of pain. When distracted during the examination he did not indicate any painful points. He also displayed significant giveaway weakness during manual muscle testing. There was no guarding, or muscle spasm of the cervical spine. There was no muscle atrophy of the upper extremities and no decreased strength. Deep tendon reflexes were decreased bilaterally, at 1+. There was no sensory abnormality of the upper extremities. He did not have intervertebral disc syndrome (IVDS), radicular pain or other signs or symptoms due to radiculopathy. The examiner reported that the Veteran showed significant signs of pain behavior and non-organic signs of pain. When distracted, he was able to perform full range of motion of the hips and knees. He also exhibited giveaway weaknesses during muscle testing. He had a nontender scar from the cyst resection. It was reported that the Veteran's cervical spine (neck) condition did not impact his ability to work. The examiner reported that the diagnoses were a cervical cyst resection, and DDD diagnosed in 2012. The current diagnosis was chronic neck pain. These diagnoses were not due to any activities while in military service. The rationale was that there was no documentation of any trauma or incident that indicated any neck problems during service, even though the Veteran had utilized the military medical services and had not brought up any problems with neck issues. Also, according to SSA records, the Veteran had worked in manually intensive employment for many years after military discharge, and his symptoms had started many years after military discharge. Claims to Reopen The Board must rule on the matter of reopening because reopening is jurisdictional. Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) and Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). In the first step in reopening, there is a three-part analysis. First, since the last disallowance on any basis, i.e., on the merits or denying reopening (Evans v. Brown, 9 Vet. App. 273, 285 (1996)), there must be new and material evidence (i.e., noncumulative evidence, not redundant, and not previously submitted) which raises a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). VA evidence which was constructively on file and is now actually on file, may be new and material evidence if it is not cumulative and is relevant. Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) and Smith (Russell) v. West, 12 Vet. App. 312, 314-15 (1999). If no new evidence is submitted, no analysis of materiality is required. Smith (Russell) v. West, 12 Vet. App. 312, 315 (1999). Second, the new evidence needs be probative only as to each element that was a specified basis for the last denial without having to establish all elements needed for allowance. Third, it must be material. Under 38 C.F.R. § 3.156(b), new and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim that was pending at the beginning of the appeal period. Under 38 C.F.R. § 3.156(c) the receipt of additional relevant service records will be cause to reconsider a prior rating decision denying a service connection claim. The full credibility of new evidence is assumed, if it is not inherently false, untrue, or patently incredible, but the full weight of such evidence is not assumed. The new evidence does not by itself have to create a reasonable possibility of allowance, but it must be of such weight or significance when considered with all, old and new, evidence. Evans v. Brown, 9 Vet. App. 273, 283-84 (1996). In the reopening context, the doctrine of the favorable resolution of doubt is not applicable unless the threshold burden of submitting new and material evidence to reopen has been met. Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Bilateral ankle disabilities The Veteran was notified in May 1982 of a rating decision that month which denied service connection for bilateral ankle conditions. The Veteran did not appeal that decision and no additional service records have been received since that decision and no relevant VA records were created or received within one year of that decision. Thus, that rating decision became final. 38 U.S.C. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. The evidence of record at the time of the prior and final May 1982 rating decision consisted of the Veteran’s STRs and the Veteran’s original claim in March 1982. The evidence received since the final May 1982 rating decision includes a March 2014 statement from his girlfriend that she had known him since 1994. She had noticed he had a limp, and he had told her that he had injured his right ankle and back during military service. He was always complaining about his back and ankle. Also, as the Veteran’s attorney had pointed out, the Veteran has provided additional details of the circumstances surrounding his inservice injury of his ankles and reportedly having been given a choice of having such surgery or being discharged from service. Additionally, following an application to reopen the claim in 2013, the Veteran was afforded a VA examination in 2014 to obtain a nexus opinion. Although that opinion was negative, and does not support the claim, at least not on the merits, in Falzone v. Brown, 8 Vet. App. 398, 404 (1995) it was held that in rendering assistance in obtaining a VA examination before reopening VA “performed a ‘de facto reopening’” of the claim. The Court stated that where there was an application to reopen a claim, because an examination was conducted to determine the nature and severity of the claimed condition, the examination would not have been necessary unless the claim was to be adjudicated on the merits. Falzone, at 404. Consequently, having provided the Veteran with a VA nexus examination in this case in 2014, and even though a negative medical opinion was rendered, it must be concluded that new and material have been submitted and, so, the claims for service connection for arthrosis of each ankle are reopened. However, the Board is of the opinion that prior to de novo adjudication of these claims on the merits, that further evidentiary development is needed. Thus, the matter of de novo adjudication of these claims on the merits must be deferred pending the development requested in the Remand portion of this decision. Service Connection To establish service connection, the record must contain: (1) medical evidence of a current disorder; (2) medical evidence, or in certain circumstances, lay testimony, of in- service incurrence or aggravation of an injury or disease; and, (3) medical evidence of a nexus between the current disorder and the in-service disease or injury. In other words, entitlement to service connection for a particular disorder requires evidence of the existence of a current disorder and evidence that the disorder resulted from a disease or injury incurred in or aggravated during service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). However, not every manifestation of joint pain during service will permit service connection for arthritis first shown as a clear-cut clinical entity at some later date. 38 C.F.R. § 3.303(b). For Veterans with 90 days or more of active service, a rebuttable presumption of service connection exists for chronic diseases, including arthritis, specifically listed at 38 C.F.R. § 3.309(a) (and not merely diseases which are “medically chronic”), if the chronicity is either shown as such in service which requires sufficient combination of manifestations for disease identification and sufficient observation to establish chronicity (as opposed to isolated findings or a mere diagnosis including the word ‘chronic’), or manifests to 10 percent or more within one year of service discharge (under § 3.307). If not shown as chronic during service or if a diagnosis of chronicity is legitimately questioned, continuity of symptomatology after service is required, 38 C.F.R. § 3.303(b), but the use of continuity of symptoms is limited to only those diseases listed at 38 C.F.R. § 3.309(a) and does not apply to other disabilities which might be considered chronic from a medical standpoint. The presumption may be rebutted by affirmative evidence of intercurrent injury or disease which is a recognized cause of a chronic disability. 38 U.S.C. §§ 1101, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303(b), 3.307(a)(3), 3.309(a). Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013), overruling Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). For a chronic disease to be shown during service or in a presumptive period means that it is “well diagnosed beyond question” or “beyond legitimate question.” Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Here, however, the Veteran served in peacetime from December 7, 1981, to February 6, 1982, a period of less than 90 days. Accordingly, the provisions of presumptive service connection for a chronic diseases, such as arthritis, are not applicable. Lay evidence can be competent and sufficient to establish a diagnosis when a layperson (1) is competent to identify the unique and readily identifiable features of a medical condition; or, (2) is reporting a contemporaneous medical diagnosis; or, (3) describes symptoms at the time which supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed.Cir. 2007); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994); and 38 C.F.R. § 3.159(a)(2). However, a lay person is not competent to provide evidence as to more complex medical questions. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). See 38 C.F.R. § 3.159(a)(1). Likewise, mere conclusory or generalized lay statements that a service event or illness caused a current disability are insufficient. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed.Cir. 2009). VA may rely on an absence of an entry in a record as evidence that the event did not occur, but only if the matter is of the kind that ordinarily would have been recorded. Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011); see also Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (“[E]vidence of a prolonged period without medical complaint can be considered”) and Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed. Cir. 2009) (taking into account the lack of treatment or complaints of the condition for an extensive period of time); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 305 (2008) (more probative weight to VA opinions which relied, inter alia, on a record showing disability symptoms did not begin until decades after service). Moreover, consideration may also be given to the earliest medical records stating when symptoms began or when treatment for symptom first began, or both. Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements opposing consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof). Reasonable doubt will be favorably resolved and exists when there is an approximate balance of positive and negative evidence. It is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the Board determines that the preponderance of the evidence is against the claim, it has necessarily found that the evidence is not in approximate balance, and the benefit of the doubt rule is not applicable. Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed.Cir. 2001). Service connection for a neck disability Initially, the Board observes that the Veteran served in peacetime from December 7, 1981, to February 6, 1982, a period of less than 90 days. Accordingly, the provisions of presumptive service connection for a chronic diseases, such as arthritis, are not applicable. Likewise, although he has referenced exposure to Agent Orange as a causative factor for some of his claimed disabilities, he did not serve during the Vietnam Conflict, which ended in 1975, see 38 U.S.C. § 101(29) and 38 C.F.R. § 3.2(f), and he did not serve overseas. He has not otherwise alleged that he had any potential exposure to herbicides, including Agent Orange, or other toxic chemicals. Moreover, none of the disabilities for which service connection is claimed, including any arthritis, are presumptively due to inservice herbicide exposure. See generally 38 C.F.R. §§ 3.307(a)(6) and 3.309(e). Although the Veteran has reported having injured his ankles and low back during service, he had never reported that he injured his cervical spine, i.e., his neck, at any time during service. In fact, it is uncontested that the STRs are negative for signs, symptoms, complaints, history, or treatment for any disability of the neck. Rather, the earliest evidence of any disability of his cervical spine or neck is not until many years after he was discharged from active service. In this regard, there is substantial evidence of his having sustained one or more post-service injuries of his cervical spine or neck. Moreover, the earliest contemporaneous evidence of any disability of his neck is when he filed a claim for service connection in 2013. He reported in his handwritten letter in 2014 that X-rays in 1990, also after service, revealed a chipped bone in a nerve in his “back” but subsequent evidence is clear that he meant a nerve in his neck. He also reported that the site of this chipped bone was where he had developed a lesion in 2007, although the evidence shows that a lesion of the posterior aspect of his neck was later excised, and records from SSA show that it was this lesion which caused pain and limited cervical motion. However, the Veteran is not competent to attest to having a “chipped” bone in his neck because this can only be established by radiological studies. Here, cervical spine X-rays in 2012, many years after service, have affirmatively shown that he does not have any “chipped” bone in his neck, and these same radiological studies, more than two decades after his military service, have shown that he had arthritis and degenerative disc disease of the cervical spine. SSA records also show that the Veteran sustained a neck injury, when slipping on ice, in 1996. He also sustained injuries in 2011, when he was dragged by a car, and the diagnosis at that time was a cervical strain. The 2019 VA examiner observed that the Veteran now complained of pain throughout his whole body but that the STRs were negative as to his neck, and the examiner further observed that the Veteran then reported that his neck lesion developed after service from an insect bite which grew into a mass that was later excised. The 2019 VA examiner opined, after reviewing the records and examining the Veteran, as well as recording the history related by the Veteran, that the excised cervical cyst, the cervical degenerative disc disease, and cervical strain were unrelated to the Veteran’s military service. The rationale was that the was no evidence of any neck problems during service, as shown in the STRs when he sought treatment for other problems, and none until a time many years after service. This medical opinion is consistent with the evidentiary record, including the Veteran’s not having offered any explanation or rationale for having a cervical cyst or lesion, cervical strain, cervical arthritis, and cervical degenerative disc disease from any inservice injury or circumstance or event during service. Likewise, it is not contended that any of these cervical disorders are in any way related to his arthrosis of the ankles, bilateral pes planus, or bilateral gastrocnemius soleus equinus, or to any other disorders for which service connection is claimed. Accordingly, the Board finds that the VA medical opinion in 2019 is adequate for the purpose of adjudicating the claim for service connection for a neck disability. Also, there has been no objection as to the adequacy of the medical opinion. For these reasons and bases, the Board finds that the preponderance of the evidence is against the claim for service connection for a neck disability and, so, there is no doubt to be favorable resolved and the claim must be denied. REASONS FOR REMAND While the Board regrets further delay, the Veteran’s remaining claims, as well as the bilateral ankle claims reopened above, must be remanded. Service connection for arthrosis of the ankles The JMR in this case stated that the Board’s 2018 decision did not acknowledge that VA provided Appellant with a VA examination to evaluate his bilateral ankle disorder in June 2014 and that the negative nexus opinion “seems to be premised on inaccurate facts” that the Veteran did not sustain an inservice injury, whereas the STRs documented an injury. In the JMR it was also stated that the May 1982 denial “was based on a finding that Appellant’s preexisting conditions were not aggravated in service.” Also, in correspondence in May 2020 the Veteran’s attorney argued that the 2014 VA examination was inadequate, for the reasons stated in the JMR, and that Veteran’s gastrocnemius soleus equinus and his pes planus had not been found on the examination for entrance into service and, thus, the presumption of soundness at service entrance was not rebutted. Also, it was argued that even if the presumption of soundness had been rebutted, the evidence established that any pre-existing disability(ies) were aggravated by an inservice injury and to such an extent that he was discharged from service. When no preexisting medical condition is noted upon entry into service, a veteran is presumed to have been sound. 38 U.S.C. § 1111 (West 2002). The burden is on VA to rebut the presumption of soundness by clear and unmistakable evidence that a disability was both preexisting and not aggravated by service. See Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). VA may rebut the second prong of the presumption of soundness through demonstrating, by clear and unmistakable evidence, either that (1) there was no increase in disability during service, or (2) any increase in disability was due to the natural progression of the condition. Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009) (citing Wagner, 370 F.3d at 1096) (emphasis added); see also Horn v. Shinseki, 25 Vet. App. 231 (2012). If there is an increase in a pre-existing disability during active service aggravation is presumed and the burden shifts to the government to show a lack of aggravation by a specific finding established by clear and unmistakable evidence that the increase in disability is due to the natural progress of the disease. See Townsend v. Derwinski, 1 Vet. App. 408, 410 (1991); see also Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004) (citing 38 U.S.C. § 1153) and 38 C.F.R. § 3.306(b)). Here, the examination for entrance into active service did not reveal that the Veteran had bilateral pes planus or gastrocnemius soleus equinus, which the medical evidence now shows is the cause of his arthrosis of the ankles. However, other service records indicate that his conditions existed at induction and he was discharged from service for that reason. “[A]lthough the issue of aggravation is paramount in considering a claim for service connection for a congenital disease, aggravation is not relevant to the analysis of a service-connection claim for a congenital defect, as such defects may not be service connected. See Quirin, 22 Vet. App. [390] at 394 (citing Winn v. Brown, 8 Vet. App. 510, 516 (1996)).” Welzel v. Shinseki, No. 09-1213, slip op. (U.S. Vet. App. Sept. 13, 2010) (nonprecedential memorandum decision). In assessing whether a claimant’s condition preexisted service, ‘the Board must consider the veteran’s medical history, accepted medical principles, evidence of the ‘basic character, origin and development’ of the condition ‘as well as’ ‘lay and medical evidence concerning the inception, development and manifestations’ of the particular condition.’ Quirin v. Shinseki, 22 Vet. App. 390, 396 (2009) (quoting 38 C.F.R. § 3.304(b)(1), (2) (2009)). ‘The presumption of soundness does not, however, apply to congenital defects, because such defects ‘are not diseases or injuries' within the meaning of 38 U.S.C. §§ 1110 and 1111.’ Id. at 397; see 38 C.F.R. § 3.303(c) (2010); see also Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed.Cir.2003) (holding that the presumption of soundness does not apply to congenital defects).” Welzel v. Shinseki, No. 09-1213, slip op. (U.S. Vet. App. Sept. 13, 2010) (nonprecedential Memorandum decision). Congenital or developmental defects, as such, are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303(c); see also VAOPGCPREC 82-90. Pes Planus is flat feet. Buckley v. West, No. 96-1764, slip op. at 2 (U.S. Vet. App. Dec. 3, 1998). Pes planus “with depression of the arch, but no evidence of abnormal callosities, areas of pressure, strain or demonstrable tenderness, is a congenital abnormally which is not compensable or pensionable.” 38 C.F.R. § 4.57 (1993). The acquired condition is manifested by depression of the arch, although this is not the essential feature, and anatomical changes, e.g. inward rotation of the os calcis, medial deviation of the Achilles tendon insertion, medial tilting of the astragalus, and in severe cases, gaping of bones on the inner border of the foot, and rigid valgus position with loss of power of inversion and adduction. 38 C.F.R. § 4.57 (stating that it essential to make a distinction between acquired and congenital pes planus). In light of the foregoing, the Veteran should be afforded a VA examination to determine whether his bilateral pes planus as well as bilateral gastrocnemius soleus equinus are congenital in nature; and whether any disability(ies) of his feet or ankles, including pes planus and gastrocnemius soleus equinus are otherwise shown, by clear and unmistakable evidence to have pre-existed service entrance and whether his bilateral pes plans as well as gastrocnemius soleus equinus are shown by clear and unmistakable evidence to have not undergone an increase in severity during service. Service connection for bilateral hip, back, and incontinence disabilities In the JMR it was stated that in 2018 the Board denied the claims for disability of the hip and urinary incontinence on the basis that there was no evidence of current disabilities of the hips and urinary incontinence but a December 2012 private disability report noted decreased hip rotation and indicated that he had some chronic urinary urgency. In correspondence in May 2020 the Veteran’s attorney argued that his ankle disorders caused severe pain and limping which resulted in bilateral hip pain and limited hip rotation. Although the 2019 VA examination addressed service connection for a low back disorder and yielded a negative opinion as to whether it was related to military service, it appears that it is now implicitly argued that the Veteran’s claimed disabilities of the ankles have also caused low back disability. However, the 2019 VA examiner did not opine whether the Veteran’s claimed disabilities of the ankles caused or aggravated the claimed disabilities of the hips, or whether the claimed disabilities of the ankles or hip, or both, either caused or aggravated any low back disorder. In the May 2020 correspondence, it was requested that the Veteran be afforded an examination to determine whether his disabilities of the ankles caused or aggravated disorders of the hips. No argument has been made as to the etiology of any claimed urinary incontinence, including how any such disability might be related to military service but it appears that it is implied that urinary urgency is due to a claimed low back disorder. TDIU On three prior occasions the Veteran has been requested to execute and return VA Form 21-8940, Application for Increased Compensation Based on Unemployability. Since this issue cannot be addressed until it is determined whether service connection is warranted for any of the claimed disabilities, and because he is now represented by legal counsel, he should again be requested execute and return VA Form 21-8940, and his legal counsel may assist him in doing so. The matters are REMANDED for the following action: 1. Afford the Veteran an examination for the purpose of determining the nature and etiology of arthrosis of the ankles, including as or as due to bilateral pes planus or bilateral gastrocnemius soleus equinus, or both. The claim file, including a complete copy of this remand, must be made available for review of the Veteran's pertinent medical history. The examiner is to furnish an opinion with respect to the following questions: a. Is the Veteran’s bilateral pes planus or his bilateral gastrocnemius soleus equinus, or both, congenital, developmental or familial in origin? Please explain the nature and character of bilateral gastrocnemius soleus equinus. If the answer is “yes”, is the bilateral pes planus or his bilateral gastrocnemius soleus equinus, or both, “a disease process,” or, on the other hand, simply a “defect or abnormality?” In this connection, the VA examiner may cite to any relevant medical text or literature regarding the proper classification of the Veteran's bilateral pes planus or his bilateral gastrocnemius soleus equinus, or both. b. If the proper classification of the Veteran's bilateral pes planus or his bilateral gastrocnemius soleus equinus, or both, is a “disease process” of congenital, developmental or familial origin, did the Veteran develop this disease process during service, based on his documented inservice injury? Please explain the reasons for your opinion. c. If the Veteran's bilateral pes planus or his bilateral gastrocnemius soleus equinus, or both, is a “disease process” of congenital, development or familial origin but did not have its onset in service, then the examiner is to address the following questions: (i) is there clear and unmistakable evidence that either bilateral pes planus or his bilateral gastrocnemius soleus equinus, or both, was or were not aggravated (permanently worsened) during the Veteran's active service? In answering question “I”, the examiner is asked to specify whether the Veteran experienced a flare up of temporary or intermittent symptoms of bilateral pes planus or his bilateral gastrocnemius soleus equinus, or both, during service; or, whether the Veteran developed permanent pathological changes of the ankles or feet during service. (ii) Is there clear and unmistakable evidence that any aggravation (permanent worsening) of the bilateral pes planus or his bilateral gastrocnemius soleus equinus, or both, was due to the natural progression of that disease? The rationale for the opinion must be provided. (Note: The term “clear and unmistakable evidence” means that the evidence cannot be misinterpreted or misunderstood, i.e., the evidence is undebatable). (d) If the proper classification of the Veteran’s bilateral pes planus or his bilateral gastrocnemius soleus equinus, or both, is a “defect or abnormality” of congenital, developmental or familial origin, the examiner is to indicate whether it was aggravated (increased in severity beyond normal progression) by a superimposed disease or injury, such as the injury noted in the STRs? If so, please specify the diagnosis or diagnoses of the additional disability of either or both ankles. The rationale for the opinion must be provided. (e) If bilateral pes planus or his bilateral gastrocnemius soleus equinus, or both, was acquired by the Veteran, then the examiner is to address the following question: Is it at least as likely as not (i.e., a 50 percent or greater probability) that: (i) this disease had its onset during active service; or (ii) was it caused by the Veteran's inservice injury shown in the STRs; or; (iii) was it related to any other incident of service? (f) Does the Veteran now have arthrosis of either ankle? If “yes,” specify the diagnosis or diagnoses and, for each diagnosis, is it at least as likely as not (50 percent or greater probability) that any currently diagnosed ankle disorder (not including any hereditary or congenital disease) that the Veteran now has: (i) had its onset during service; or, (ii) was caused by the Veteran's inservice injury; or, (iii) was it related to any other incident of service? The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. A complete rationale must be given for each opinion expressed. 2. Afford the Veteran an examination for the purpose of determining the nature and etiology of any disability of his hips and his low back. After reviewing the record and interviewing, if possible, the Veteran the examiner should opine as to the nature and etiology of any hip disability which the Veteran may now have and whether it is at least as likely as not to have originated during military service. After reviewing the record for the Veteran's pertinent medical history and interviewing, if possible, the examiner should opine as to whether it is at least as likely as not that any disability(ies) of the Veteran’s hips or any disability of his low back has been caused or is due to, or aggravated by, arthrosis of the ankles, including bilateral pes planus or bilateral gastrocnemius soleus equinus, or both. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. A complete rationale must be given for each opinion expressed. 3. Afford the Veteran an examination for the purpose of determining the nature and etiology of any urinary symptoms, including urinary urgency or urinary incontinence, or both. After reviewing the record for the Veteran’s pertinent medical history and interviewing, if possible, the Veteran the examiner should opine as to the nature and etiology of any urinary disorder which the Veteran may now have and whether it is at least as likely as not to have originated during military service. Also, the examiner should opine as to whether it is at least as likely as not that any urinary disorder has been caused or is due to, or aggravated by, arthrosis of the ankles, including bilateral pes planus or bilateral gastrocnemius soleus equinus, or both; or to any claimed disabilities of the hips or low back. The examiner is advised that the Veteran is competent to report injuries and symptoms, and that his reports must be considered in formulating the requested opinion. A complete rationale must be given for each opinion expressed. 4. The Veteran should be provided a copy of VA Form 21-9840, Application for Increased Compensation Based on Unemployability and he should again be requested (for the fourth time) to execute and return that form. The Veteran’s legal counsel is advised that he may assist the Veteran in filling out, executing, and returning VA Form 21-8940. Robert N. Scarduzio Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Fussell, 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.