Citation Nr: 21005053 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 17-13 303 DATE: January 28, 2021 ORDER Entitlement to a rating higher than 60 percent for right leg peripheral vascular disease is denied. Entitlement to a rating higher than 10 percent prior to December 19, 2019, and higher than 20 percent as of December 19, 2019, for left leg peripheral neuropathy of the sciatic nerve is denied. Entitlement to a rating higher than 10 percent prior to December 19, 2019, and higher than 20 percent as of December 19, 2019, right leg for peripheral neuropathy of the sciatic nerve is denied. Entitlement to a rating higher than 10 percent prior to December 19, 2019, and higher than 20 percent as of December 19, 2019, for left leg peripheral neuropathy of the femoral nerve is denied. Entitlement to a rating higher than 10 percent prior to December 19, 2019, and higher than 20 percent as of December 19, 2019, for right leg peripheral neuropathy of the femoral nerve is denied. Entitlement to a rating higher than 0 percent for bilateral hearing loss is denied. REMANDED Entitlement to a rating higher than 20 percent for diabetes mellitus with erectile dysfunction is remanded. FINDINGS OF FACT 1. Peripheral vascular disease of the right leg has resulted in claudication on walking less than 25 yards, and ankle/brachial index of 0.62. 2. Prior to December 19, 2019, the Veteran’s left lower extremity peripheral neuropathy was manifested by, at most, mild incomplete paralysis of the sciatic and femoral nerves. 3. Prior to December 19, 2019, the Veteran’s right lower extremity peripheral neuropathy was manifested by, at most, mild incomplete paralysis of the sciatic and femoral nerves. 4. As of December 19, 2019, the Veteran’s left lower extremity peripheral neuropathy was manifested by, at most, moderate incomplete paralysis of the sciatic and femoral nerves. 5. As of December 19, 2019, the Veteran’s right lower extremity peripheral neuropathy was manifested by, at most, moderate incomplete paralysis of the sciatic and femoral nerves. 6. Throughout the period of appeal, the Veteran had, at worst, Level II hearing loss in the right ear and Level II hearing loss in the left ear. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 60 percent for peripheral vascular disease of the right leg have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7114. 2. The criteria for a rating higher than 10 percent prior to December 19, 2019, and higher than 20 percent as of December 19, 2019, for left leg peripheral neuropathy sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5013, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for a rating higher than 10 percent prior to December 19, 2019, and higher than 20 percent as of December 19, 2019, for right leg peripheral neuropathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5013, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for a rating higher than 10 percent prior to December 19, 2019, and higher than 20 percent as of December 19, 2019, for left leg peripheral neuropathy of the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5013, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8526. 5. The criteria for a rating higher than 10 percent prior to December 19, 2019, and higher than 20 percent as of December 19, 2019, for right leg peripheral neuropathy of the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5013, 5103A, 5107, 7104; 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 4.1, 4.7, 4.124a, Diagnostic Code 8526. 6. Throughout the period of appeal, the criteria for a rating in excess of 0 percent for bilateral hearing loss have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.385, 4.1-4.14, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1968 to January 1971. The Veteran appeared at an August 2019 hearing before the undersigned Veterans Law Judge. The hearing transcript is of record. During the course of the appeal, an August 2020 rating decision assigned a 60 percent rating for peripheral vascular disease of the right leg from June 16, 2015, the date of the claim for an increased rating. That decision also assigned 20 percent ratings for peripheral neuropathy of the left and right legs, both effective December 18, 2019, based on involvement of the sciatic nerve. Additionally, the AOJ assigned 20 percent ratings for peripheral neuropathy of the left and right lower extremities, both effective from December 18, 2019, based on involvement of the sciatic nerve. However, as higher ratings are available for those disabilities, and the Veteran is presumed to seek the maximum available benefit for a disability, the claims for higher ratings remain on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007); AB v. Brown, 6 Vet. App. 35 (1993). This case was previously remanded for further development. In light of the treatment records that have been obtained and associated with the record, the obtaining of the requested medical opinions, and the further adjudicatory actions taken by the Agency of Original Jurisdiction, the Board finds that there has been substantial compliance with the prior remand requests concerning the issues of entitlement to higher ratings for right and left leg disabilities, and hearing loss. Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Increased Rating Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to a rating higher than 60 percent for peripheral vascular disease of the right leg Peripheral vascular disease is rated pursuant to Diagnostic Code 7114, which provides a 20 percent rating if evidence shows claudication on walking more than 100 yards, and diminished peripheral pulses or an ankle/brachial index (ABI) of 0.9 or less. A 40 percent is assigned if there is claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and; trophic changes (thin skin, absence of hair, dystrophic nails) or ABI of 0.7 or less. A 60 percent rating requires claudication on walking less than 25 yards on a level grade at 2 miles per hour, and; either persistent coldness of the extremity or ABI of 0.5 or less. A 100 percent rating is warranted for ischemic limb pain at rest, and; either deep ischemic ulcers or ABI of 0.4 or less. The ABI is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. 38 C.F.R. § 4.104, Diagnostic Code 7114, Note (1). The criteria listed in Diagnostic Code 7114 are conjunctive, as evidenced by the use of the word and. Melson v. Derwinski, 1 Vet. App. 334 (1991); Camacho v. Nicholson, 21 Vet. App. 360 (2007) (use of the conjunctive and in rating criteria means entitlement to that rating required all criteria be met). In order to satisfy the criteria for a higher 100 percent rating, the Veteran must demonstrate ischemic limb pain at rest and either (1) deep ischemic ulcers, or (2) an ankle/brachial index of 0.4 or less. On VA examination in September 2015, the examiner remarked that the Veteran had intermittent claudication and had to stop walking to get the pain to go away. The right ABI was 0.62, and the examiner opined that the ABI testing results were suggestive of moderate peripheral vascular disease. At the August 2019 Board hearing, the Veteran stated that a doctor had told him that his right leg was full of blood clots. He stated that his leg swelled, and he experienced pain. He stated that he could walk for about half a block, and then he had to stop. He had been prescribed blood thinners. On VA examination in December 2019, the examiner diagnosed peripheral vascular disease of the right calf, and post-thrombotic syndrome. The Veteran experienced aching and fatigue in the leg after prolonged standing and walking. The symptoms were relieved by compression hosiery. The Veteran experienced claudication on walking less than 25 yards on a level grade at 2 miles per hour. The Veteran had been prescribed a blood thinner. The Board finds that the preponderance of the evidence is against the assignment of a higher rating for peripheral vascular disease of the right leg. Claudication with walking less than 25 yards has been shown, but the Veteran’s ankle-branchial index was reported as 0.62 by the September 2015 VA examiner. The evidence does not show, and the Veteran has not claimed, that he has either deep ischemic ulcers or ABI of 0.4 or less, as would be required for the next higher, 100 percent rating. The Board finds that the preponderance of the evidence is against the assignment of any higher rating and the claim for increased rating must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. While the Veteran is competent to claim that a disability is worse than currently rated, whether a disability meets the schedular criteria for the assignment of a higher rating is a factual determination by the Board based on the Veteran’s complaints, coupled with the medical evidence. That finding requires medical readings and information from a trained professional. Although the Veteran may believe that he meets the criteria for a rating higher than the currently assigned rating, the objective medical findings show that he does not meet the schedular requirements for a higher rating. The Board finds that the medical evidence is more persuasive and probative of the degree of disability as the examiners used objective testing. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of a rating higher than 60 percent for peripheral vascular disease of the right leg, and the claim for increased rating must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.104. 2. Entitlement to a rating higher than 10 percent prior to December 19, 2019, and higher than 20 percent as of December 19, 2019, for left leg peripheral neuropathy of the sciatic nerve 3. Entitlement to a rating higher than 10 percent prior to December 19, 2019, and higher than 20 percent as of December 19, 2019, for right leg peripheral neuropathy of the sciatic nerve 4. Entitlement to a rating higher than 10 percent prior to December 19, 2019, and higher than 20 percent as of December 19, 2019, for left leg peripheral neuropathy of the femoral nerve 5. Entitlement to a rating higher than 10 percent prior to December 19, 2019, and higher than 20 percent as of December 19, 2019, for right leg peripheral neuropathy of the femoral nerve The Board notes that the Veteran’s left and right sciatic and femoral peripheral neuropathy are rated under Diagnostic Codes 8520 and 8526. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Ratings of 10 percent, 20 percent, 40 percent, and 60 percent are assigned for incomplete paralysis that is mild, moderate, moderately severe, or severe. Complete paralysis of the sciatic nerve is rated 80 percent and contemplates no active movement possible of muscles below the knee. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8526 provides the rating criteria for paralysis of the femoral nerve. Ratings of 10 percent, 20 percent, and 30 percent are assigned for incomplete paralysis that is mild, moderate, or severe. Complete paralysis of the femoral nerve is rated 40 percent and contemplates complete paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, Diagnostic Code 8526. The term incomplete paralysis indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. The Board notes that the terms slight, moderate, and severe are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that decisions are equitable and just. 38 C.F.R. § 4.6. Prior to December 19, 2019 On VA examination in September 2015, the examiner diagnosed diabetic peripheral neuropathy of the bilateral lower extremities. The Veteran experienced moderate intermittent pain, paresthesias, and/or dysesthesias, and numbness of both lower extremities. Muscle strength testing and deep tendon reflex testing were both normal. Sensation to light touch was decreased for both feet and toes. There were no trophic changes or muscle atrophy. The examiner found that there was mild incomplete paralysis of the sciatic nerve on the right and left sides. The examiner specified that the right and left femoral nerves were normal with no paralysis. Prior to December 19, 2019, the objective evidence shows mild impairment resulting from sciatic and femoral peripheral neuropathy. Motor strength has been no worse than 5/5, which was noted on the VA examination of record. This objective evidence strongly suggests that the neurological symptoms are best objectively described as mild. The symptoms were not wholly sensory, but did not demonstrate any greater motor weakness that would warrant any higher rating. Additionally, the September 2015 VA examiner specified that the Veteran experienced mild incomplete paralysis of the sciatic nerve and no paralysis of the femoral nerve bilaterally. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. Mild incomplete paralysis of the femoral nerve warrants a 10 percent rating. Those ratings have already been assigned and the Board finds that the preponderance of the evidence is against the assignment of any higher ratings. In so finding, the Board in no way discounts the pain, numbness, and tingling that the Veteran reported experiencing in the lower extremities. However, as the objective evidence shows no worse than mild incomplete paralysis prior to December 19, 2019, no higher rating is warranted for peripheral neuropathy symptoms prior to December 19, 2019. The Board finds that the preponderance of the evidence is against the assignment of any higher ratings prior to the December 19, 2019, and the claims for increased ratings are denied. From December 19, 2019 On VA diabetes mellitus examination in December 2019, the Veteran reported experiencing tingling and numbness in both feet. The examiner stated that the Veteran experienced moderate intermittent pain and moderate paresthesias and/or dysesthesias of the bilateral lower extremities. Muscle strength testing, deep tendon reflexes, and light touch testing were all normal. Position sense and vibration sense were both normal. There was decreased sensitivity to cold of the bilateral lower extremities. No atrophy or trophic changes were present. The examiner found that there was mild incomplete paralysis of the sciatic nerve on the right and left sides. The examiner specified that the right and left femoral nerves were normal with no paralysis. On VA peripheral nerves examination in December 2019, the examiner diagnosed peripheral neuropathy of the sciatic and femoral nerves of both lower extremities. The Veteran reported that he had pain that radiated down from his back to his lower extremities. The examiner indicated that the Veteran experienced mild constant pain of the bilateral lower extremities, severe intermittent pain of the right lower extremity, moderate intermittent pain of the left lower extremity, moderate paresthesias and/or dysesthesias of the bilateral lower extremities, and moderate numbness of the bilateral lower extremities. Muscle strength testing of the bilateral lower extremities was normal, and there was no muscle atrophy. Deep tendon reflexes were absent and the knee and ankle of both lower extremities. Sensory examination found decreased results for both lower legs and feet. There was decreased hair growth and smoother, shinier skin of the lower extremities. The examiner found that the Veteran’s gait was normal. The examiner specified that there was mild incomplete paralysis of the sciatic nerve on the right and left sides. The examiner further specified that there was mild incomplete paralysis of the right and left femoral nerves. From December 19, 2019, the objective evidence shows impairment resulting from sciatic and femoral peripheral neuropathy best approximated as moderate. While acknowledging that the Veteran experienced intermittent severe pain, muscle strength testing has been consistently normal. Motor strength has been no worse than 5/5, which was noted on the VA examination of record. Objective VA examiners described the Veteran’s paresthesias and/or dysesthesias and numbness of the bilateral lower extremities as moderate. This objective evidence strongly suggests that the neurological symptoms are best objectively described overall as moderate. Significantly, the VA examiners of record for this period specified that the Veteran experienced no more than mild incomplete paralysis of the sciatic nerve and mild incomplete paralysis of the femoral nerve bilaterally. As the degree of incomplete paralysis of the sciatic nerve and femoral nerve has been described by objective medical personnel as mild, the evidence does not show that the incomplete paralysis of the sciatic nerve and femoral nerve is more than moderate. Moderate incomplete paralysis of the sciatic nerve warrants a 20 percent rating. Moderate incomplete paralysis of the femoral nerve warrants a 20 percent rating. Those ratings have already been assigned for the period from December 19, 2019 by the AOJ, and the Board finds that the preponderance of the evidence is against the assignment of any higher ratings. The Board in no way discounts the pain, numbness, and tingling that the Veteran reported experiencing in his lower extremities. However, as the objective evidence shows no worse than moderate incomplete paralysis of the sciatic and femoral nerves bilaterally from December 19, 2019, no higher rating is warranted for peripheral neuropathy symptoms from December 19, 2019. The Board finds that the preponderance of the evidence is against the claim for any other increased rating and the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 6. Entitlement to a rating higher than 0 percent for bilateral hearing loss Ratings of hearing loss range from 0 to 100 percent based on organic impairment of hearing acuity as measured by the results of speech discrimination tests combined with the average hearing threshold levels as measured by pure tone audiometry tests in the frequencies 1000, 2000, 3000, and 4000 Hertz. To rate the degree of disability for hearing loss, the Rating Schedule has established eleven auditory acuity levels, designated from Level I, for essentially normal acuity, through Level XI, for profound deafness. 38 C.F.R. § 4.85(h), Table VI (2017). The assignment of disability ratings for hearing impairment is derived by a mechanical application of the Rating Schedule to the numeric designations assigned after audiometric evaluations are performed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The criteria for rating hearing impairment use controlled speech discrimination tests (Maryland CNC) together with the results of pure tone audiometry tests. The results are charted on Table VI, or Table VIA in exceptional cases as described in 38 C.F.R. § 4.86, and Table VII. 38 C.F.R. § 4.85 (2016). An exceptional pattern of hearing loss occurs when the pure tone threshold at 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more, or when the pure tone threshold is 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz. 38 C.F.R. § 4.86 (2017). In such cases, the Roman numeral value is determined using both Table VI and VIA and whichever table results in a higher Roman numeral value is used to calculate a rating using Table VII. 38 C.F.R. § 4.86. On VA examination in September 2015, the Veteran’s pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG RIGHT 45 50 50 60 51 LEFT 50 60 55 65 58 Maryland CNC word recognition was 94 percent in the right ear and 94 percent in the left ear. The Veteran reported that he often had to ask people to repeat themselves during conversations. At an August 2019 Board hearing, the Veteran stated that if he removed his hearing aids, he needed other people to yell so that he could hear them. On VA examination in December 2019, the Veteran’s pure tone thresholds, in decibels, were: HERTZ 1000 2000 3000 4000 AVG RIGHT 50 60 55 55 55 LEFT 50 60 55 55 55 Maryland CNC word recognition was 84 percent in the right ear and 96 percent in the left ear. The Veteran reported that background noise interfered his ability to ability to participate in conversations. Initially, the Board notes that neither ear displays an exceptional pattern of hearing loss by regulation. Thus, Table VI will be used to determine the appropriate disability rating. 38 C.F.R. § 4.86(a). Applying the results from the September 2015 VA examination for the Veteran’s right ear to Table VI shows that he has Level I hearing loss. Under Table VI, the left ear has Level II hearing loss. Applying Level I for the right ear and Level II for the left ear results in a 0 percent rating. 38 C.F.R. § 4.85. Applying the results from the December 2019 VA examination for the Veteran’s right ear to Table VI shows that he has Level II hearing loss. Under Table VI, the left ear has Level I hearing loss. Applying Level II for the right ear and Level I for the left ear results in a 0 percent rating. 38 C.F.R. § 4.85. Lay persons are competent to provide opinions on some medical issues. Kahana v. Shinseki, 24 Vet. App. 428 (2011). However, in this case, a lay opinion falls outside the realm of common knowledge of a lay person. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). To the extent that the Veteran contends that his hearing loss is more severe than currently rated, while he is competent to report symptoms such as difficulty understanding speech, he is not competent to report that his hearing acuity is of sufficient severity to warrant a certain percentage rating because such an opinion requires medical expertise and training in evaluating hearing impairment, which he does not possess, and the use of audiometric equipment. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Based upon the results from the VA examinations, the Board finds that the criteria for a compensable rating for bilateral hearing loss have not been met. 38 C.F.R. §§ 4.85, 4.86. The Board finds that the preponderance of the evidence is against the claim for increase and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a rating higher than 20 percent for diabetes mellitus with erectile dysfunction is remanded. In November 2019, the Board remanded the issue of entitlement to a higher rating for diabetes mellitus with erectile dysfunction to schedule the Veteran for a VA examination. The requested examination was provided in December 2019. In conjunction with the examination, the examiner complete a VA Diabetes Mellitus Disability Benefits Questionnaire (DBQ). Question 3A on the DBQ asks if the Veteran had any recognized complications of diabetes mellitus. A note to question 3A states “For all checked boxes, also complete appropriate Questionnaire(s).” The examiner checked a box indicating that the Veteran had diabetic nephropathy or renal dysfunction caused by diabetes mellitus. However, the examiner did not complete the appropriate questionnaire relating to diabetic nephropathy or renal dysfunction. As the December 2019 VA examiner indicated that the Veteran had diabetic nephropathy or renal dysfunction but did not complete a diabetic nephropathy or renal dysfunction DBQ, the December 2019 diabetes mellitus VA examination report is incomplete. When VA obtains an evaluation, the evaluation must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Because of the cited deficiencies in the December 2019 examination report, the Board finds that an additional examination is necessary to evaluate the service-connected diabetes mellitus. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA and private treatment records. Ask the Veteran to complete a VA Form 21-4142 for each private healthcare provider who has treated him for diabetes mellitus. 2. Schedule the Veteran for a VA examination of service-connected diabetes mellitus with erectile dysfunction. The examiner must review the claims file and should note that review in the report. Any examinations or tests that the examiner deems necessary should be provided. The examiner is asked to assess the nature and severity of the service-connected diabetes mellitus. The examiner should specify whether or not the Veteran has diabetic nephropathy or renal dysfunction caused by diabetes mellitus. If the Veteran has diabetic nephropathy or renal dysfunction caused by diabetes mellitus, the Veteran must complete the appropriate Disability Benefits Questionnaire. The examiner should specifically make a finding whether or not regulation of activities is required due to diabetes mellitus. Regulation of activities means the need for the avoidance of strenuous occupational and recreational activities. A complete rationale for any opinion expressed should be included in the report. The examiner should explicitly address any lay contentions of applicable symptoms by the Veteran. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, 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.