Citation Nr: 21061959 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 14-17 328 DATE: October 5, 2021 ORDER Service connection for arthritis is denied Entitlement to an effective date prior to October 29, 2018 for the grant of a total disability rating based upon unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has arthritis that was caused or aggravated by his active military service. 2. Prior to October 29, 2018, the evidence of record does not show that the Veteran was unable to secure or follow substantially gainful employment as a result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for arthritis have not been met. 38 U.S.C. §§ 1101, 1105, 1110, 1113, 1131, 1137, 5103, 5103A, 5.107; 38 C.F.R. §§ 3.1, 3.102, 3.301, 3.303, 3.304, 3.307, 3.309. 2. Prior to October 29, 2018, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served had active-duty service in the United States Army from September 1965 to August 1967. These matters were last remanded in April 2020 for additional evidentiary development. In a January 2021 rating decision, the RO granted entitlement to a TDIU from October 29, 2018. Accordingly, the matter of entitlement to a TDIU prior to October 29, 2018 remains on appeal. A supplemental statement of the case (SSOC) was issued in February 2021. The Board finds that the RO has substantially complied with the remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In an April 5, 2021 decision, the Board denied service connection for arthritis and an effective date prior to October 29, 2018 for the grant of a TDIU. In May 2021, the Veteran's counsel submitted a motion to vacate the April 5, 2021 Board decision, indicating that the Board had failed to rule upon a March 25, 2021 motion for a 90-day extension prior to adjudicating the two issues on appeal. (Regrettably, the afore-noted motion was not timely associated with the Veteran's electronic claims file.) As the Board did not rule on the March 25, 2021 motion for extension before issuing the April 5, 2021 decision, the Veteran was denied due process of law. Consequently, the Board vacated its April 5, 2021 decision. Vacatur is in the nature of a preliminary order and does not constitute the Board's decision on the merits of the appeal. 38 C.F.R. § 20.1100(b) In correspondence of June 15, 2021, the undersigned Acting Veteran's Law Judge granted counsel's motion for a 90-day extension. As the 90-day extension has run, the Board adjudicates the issues herein. Service Connection The Veteran asserts that arthritis of multiple joints to include hands, knees, hips, and back was incurred in, aggravated by, or otherwise attributable to, his military service. See, e.g., the Report of General Information dated August 2020 In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Saunders v. Wilkie, 886 F. 3d 1356 (Fed. Cir. 2018). In the absence of proof of a present disability there can be no valid claim. Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F. 3d 1039, 1043 (Fed. Cir. 1994). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence is any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). Competent lay evidence may also include some medical matters, such as describing symptoms or relating a contemporaneous medical diagnosis. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). If the evidence is competent, the Board must then determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this regard, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Certain chronic diseases, including arthritis, will be presumed related to service if they were shown as chronic in service (or within a presumptive period) and there are subsequent manifestations of the same chronic diseases; or if they manifested to a compensable degree within a presumptive period following separation from service (in this case, one year); or if they were noted in service, with continuity of symptomatology since service. See 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Evidence and Analysis In the Veteran's August 1967 separation report of medical examination, a military clinician reported normal clinical evaluations of the Veteran's upper and lower extremities. The clinician further reported a normal clinical evaluation of the Veteran's spine and other components of the musculoskeletal system. In the associated August 1967 separation report of medical history, the Veteran indicated that he did not have rheumatism; arthritis; painful of swollen joints; lameness; bone, joint, or other deformity; or 'trick' or locked knee. This report bears the signatures of the Veteran and a military clinician. In September 2010, October 2011, April 2012, and June 2012, VA clinicians indicated that the Veteran was at risk for obesity-related conditions. The clinician provided educational guidance on the health risks of obesitysuch a coronary artery disease, high blood pressure, stroke, dyslipidemia, gallstones, diabetes, sleep apnea, osteo-arthritis, and some types of cancer. In a November 2012 VA ophthalmology note, a clinician noted that the Veteran had a past history of arthritis; however, this clinician provided no guidance as to where this history was gleaned. A review of other VA treatment records discloses that the Veteran's complained of joint pain. Clinicians also noted of "possible" arthritic changes to the cervical spine and the right knee. See November 2012 and October 2014 VA treatment records. In September 2014, a private consultant psychologist reported that the Veteran is unable to work several days a week at a beauty/barber shop because of his symptoms of anxiety or depression and "secondary to chronic knee pain and numbness of the hands which affects (sic) his use of tools needed to cut hair." Upon scrutiny of the report of this consultant, it remains unclear whether any direct evaluation took place. Here, the Board observes that the record shows the Veteran resides in the state of Tennessee. Whereas this private consultant reports a professional address in the state of Indiana and professional licensure in the state of Kentucky. While this consultant indicated that she conducted a "mental status exam" in September 2014, the mode of this "exam" remains unclear. Stated more directly, the consultant did not indicate that she conducted an in-person or virtual interview. As such, the Board assigns diminished probative weight to this consultant's psychometric findings, "behavioral observations," reports of medical causation, and rationale to support such. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Guerrieri v. Brown, 7 Vet. App. 467 (1993); Gabrielson v. Brown, 7 Vet. App. 36 (1994); Sklar v. Brown, 5 Vet. App, 140 (2003). Moreover, this consultant's commentary as to the status of the Veteran's "numbness of the hands" and "chronic knee pain" begs the question of whether this consultant is competent to render both neurological and orthopedic opinions. While the consultant's curriculum vitae discloses that she holds a PhD in psychology, there is no documentation of formal training or licensure in the fields of neurology or orthopedic medicine. As such, the medical causative prongs of this consultant's opinion do not constitute competent clinical/medical evidence. In a March 2016 VA primary care note, a clinician indicated that the Veteran's has a current diagnosis of knee pain. In an October 2016 VA treatment record, the Veteran indicated that he knew that his neck pain was arthritis. However, the Veteran declined radiological imaging to confirm arthritis through x-rays. In a February 8, 2019 VA surgical specialty care report, a clinician indicated that the Veteran sought treatment for carpal tunnel syndrome. While this clinician noted evaluation for osteo-arthritis, this report focalizes on carpal tunnel syndrome. The Veteran contacted VA afterwards to indicate that he desires continued treatment for carpal tunnel syndrome. In a November 2019 VA screen, a clinician indicated that the Veteran did not have current arthritis or an history of arthritis. The Veteran's 2020 VA active problems list includes pain in a finger of right hand and knee pain. In a July 2020 VA triage note, a clinician noted that the Veteran denied having rheumatoid arthritis; however, he reported left hip pain. In an August 2020 memorialization of a telephone exchange, a VA representative indicated that the Veteran indicated that he has arthritis in both knees, both hips, and in his back. In a December 2020 partial VA knee examination report, a clinician responded to the Board's April 2020 remand directive. The clinician reported that x-ray imaging confirmed that the Veteran has current left knee degenerative arthritis. Although this clinician included an etiological opinion, close scrutiny of this examination report shows that the clinician's findings are wholly focused on current arthritis and its "likelihood." The clinician was silent as to any in-service incurrence or any evidence indicative of arthritis occurring within one year of the Veteran's separation from service. This same month, the Veteran was afforded a complete VA knee examination. A clinician reviewed the claims file; considered the Veteran's lay accounts; and conducted an appropriate evaluation (hereinafter "VA exam protocols"). The clinician indicated that a review of the evidence reveals that the Veteran first complained of right knee pain in 2010. The clinician indicated a current diagnosis of bilateral degenerative arthritis of the knees. Upon careful consideration of the totality of evidence to include findings from the instant examination, this clinician indicated that bilateral knee arthritis was less likely than not incurred in or caused by an in-service injury, event, or illness. As a rationale for this negative nexus opinion, the clinician stated that there were no complaints of right knee pain in the Veteran's service treatment records. Moreover, the Veteran denied having arthritis in his August 1967 separation report of medical history. Nevertheless, x-ray imaging did confirm that the Veteran has current bilateral degenerative arthritis of the knees. In December 2020, the Veteran was afforded a VA hands and fingers examination. Upon consideration of the Veteran's contention that he received a diagnosis of right-hand arthritis in 2014, the clinician indicated that December 2020 x-ray imaging of the hands showed no arthritic changes. Upon careful consideration of the totality of evidence to include findings from the instant examination, this clinician indicated that the claimed condition was less likely than not incurred in or caused by an in-service injury, event, or illness. As a rationale for this negative nexus opinion, the clinician underscored that x-ray imaging of December 15, 2020 evinced that the Veteran does not have any significant radiological evidence of arthritis of the hands. Additionally, the evidence fails to disclose that the Veteran complained of right-hand pain in service. Further, the Veteran denied having arthritis in his August 1967 separation report of medical history. In January 2021 addendum opinions (knees and hands), a clinician opined that a review of the Veteran's service treatment records shows no complaints or treatment for any arthritis (of any classification at any identified joint). Furthermore, the Veteran denied having arthritis and bone, joint, or other deformities in his August 1967 separation report of medical history. Thus, there was no event or injury, which would substantiate a finding that bilateral degenerative arthritis of the knees was incurred in or aggravated by service. In January 2021, a VA clinician noted that the Veteran reported to prosthetics for bilateral hinged knee braces for current arthritis of the knees. At this time, the Veteran endorsed pain in a right-hand finger. The Board acknowledges the Veteran's beliefs and he is competent to report discernable symptoms and competent to convey clinical information that he heard from a competent clinician. Jandreau, 492 F. 3d 1372; Kahana, 24 Vet. App. 428. Nevertheless, as a lay person, this Veteran lacks the highly specialized training in medicine to render a complex medical opinion as to etiology. 38 C.F.R. § 3.159(a)(1). In the absence of proof of a present disability there can be no valid claim. See Romanowsky, 26 Vet. App. 289. The pertinent medical evidence is summarized above. The competent post-service clinicians of record, in whom the Board places substantial probative weight, have not provided current diagnoses of arthritis as to the hands, neck, back, or hips. Moreover, the evidence does not support a finding that he suffers from any symptomatology associated with the claimed disabilities that results in identified functional impairment. C.f., Saunders, 866 F. 3d 1356. As described above, in the January 2021 addendum opinion, the VA examiner specifically indicated that the functional impairment of the Veteran's right hand is due to carpal tunnel syndrome. To this end, the Veteran sought treatment for carpal tunnel syndrome; however, such a disability is neither analogous to arthritis nor a disability for which the Veteran seeks service connection. Thus, the possibility of establishing service connection is not possible on either a direct or a presumptive basis for arthritis of the hands, back, neck, and/or hips. See Saunders, 866 F. 3d 1356; see also 38 C.F.R. §§ 3.307, 3.309. With respect to the bilateral knees, the current disability prong ("bilateral degenerative arthritis of the knees") is present; however, the weight of evidence is against finding the requisite in-service incurrence of predicate. As noted throughout, the Veteran indicated that he had not had and did not have rheumatism; arthritis; painful of swollen joints; lameness; bone, joint, or other deformity; or 'trick' or locked knee in his signed August 1967 separation report of medical history. Furthermore, the evidence of record fails to disclose any complaints or treatment for the knees (of any sort) within one year of the Veteran's separation from service. Without an in-service or presumptive period incurrence, the possibility of drawing a nexus to current bilateral degenerative arthritis of the knees is not possible. The Board has carefully considered the contentions of the Veteran that his bilateral knee arthritis is due to his military service. However, the Board herein finds that the Veteran's assertions of nexus concern an internal medical process, which extends beyond an immediately observable cause-and-effect relationship that is of the type that the courts have found to be beyond the competence of lay witnesses. Cf. Jandreau, 492 F.3d at 1376 (lay witness capable of diagnosing dislocated shoulder); Barr v. Nicholson, 21 Vet. App. 303, 308-9 (2007); Falzone v. Brown, 8 Vet. App. 398, 403 (1995) (lay person competent to testify to pain and visible flatness of his feet); with Clemons v. Shinseki, 23 Vet. App. 1, 6 (2009) ("It is generally the province of medical professionals to diagnose or label a mental condition, not the claimant"); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (unlike varicose veins or a dislocated shoulder, rheumatic fever is not a condition capable of lay diagnosis); Jandreau, 492 F.3d at 1377, n. 4 ("sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer"). See also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed. Cir. 2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). The Board has also considered the evidence of record showing that the Veteran has been diagnosed as having arthritis, an enumerated disease under 38 C.F.R. § 3.309(a); Walker, 708 F.3d 1331. However, arthritis of the knees was not diagnosed beyond legitimate question in service or manifest to a compensable degree within one year after separation. Significantly, the record does not contain any probative evidence of arthritis of the knees in the first post-service year or, indeed, for many years thereafter. The Board finds that the most probative evidence of record does not attribute the reported continuous symptoms in service and thereafter to arthritis. As set forth above, the December 2020 and January 2021 VA examiner considered the Veteran's reported symptoms, but determined that his claimed bilateral knee disabilities do were not incurred in his military service. The Veteran is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of arthritis. That issue is medically complex, as it requires clinical expertise such as knowledge of interpretation of complicated diagnostic medical testing. Jandreau, 492 F.3d at 1377, 1377 n.4. The Board is charged with weighing the positive and negative evidence; resolving reasonable doubt in the Veteran's favor when the evidence is in equipoise. Considering the record, including the service treatment records, the post-service medical evidence, December 2020 and January 2021 VA medical opinions, and lay evidence presented by the Veteran, the Board finds that the negative evidence is more persuasive and of greater evidentiary weight. The weight of competent and credible evidence is against the Veteran's claim of entitlement to service connection for arthritis and there is no doubt to be resolved. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. Entitlement to a TDIU Prior to October 29, 2018 The Veteran asserts that he is entitled to a grant of TDIU prior to October 29, 2018. To support this contention, the Veteran's representative asserts that the Veteran has not worked full-time since 2001; a 2010 examiner reported that the Veteran endorsed audio and visual hallucinations and other severe symptomatology; and the consultant (as noted above) wrote that the Veteran struggles with near-continuous pain and experiences difficulties maintaining effective relationships. Such symptoms, the consultant stated, have existed since the date of the Veteran's claim. For reasons already stated, the Board assigns diminished probative weight to this consultant's report. See Owens, 7 Vet. App. 429; Guerrieri, 7 Vet. App. 467; Gabrielson, 7 Vet. App. 36; Sklar, 5 Vet. App, 140. The Veteran's representative also references lay accounts of the Veteran's brother and sister. These lay parties note that the Veteran experiences major panic attacks; works minimally; experiences memory problems and anxiety; and cannot tolerate the presence of groups of people. In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. §§ 4.16(a). The regulatory scheme for a TDIU provides both objective and subjective criteria. Hatlestad, 5 Vet. App. 524; VAOPGCPREC 75-91 (Dec. 27, 1991) 57 Fed. Reg. 2317 (1992). The objective criteria, set forth at 38 C.F.R. § § 3.340(a)(2), provide for a total rating when there is a single disability or a combination of disabilities that results in a 100 percent schedular evaluation. Subjective criteria, set forth at 38 C.F.R. §§ 4.16(a), provide for a TDIU when, due to service-connected disability, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Discussion Prior to October 29, 2018, the Veteran was service connected for the following disabilities: 1) posttraumatic stress disorder (PTSD) at 50 percent, effective from July 6, 2010; 2) diabetes mellitus type 2 at 20 percent, effective from September 7, 2011; and 3) tinea versicolor at 10 percent, effective from September 7, 2011. Thus, the Veteran did not meet the schedular requirements for entitlement to a TDIU prior to October 29, 2018. See 38 C.F.R. § 4.16(a). Nevertheless, the Board will assess whether entitlement to a TDIU was warranted based on an extraschedular basis. For the reasons set forth below, the Board finds that the evidence of record does not substantiate a reasonable possibility that the Veteran was unemployable by reason of his service-connected disabilities alone prior to October 29, 2018. Ray v. Wilkie, 31 Vet. App. 58 (2019) (holding that the initial extraschedular referral decision under § 4.16(b) addresses whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities). Upon an October 2011 VA examination, a clinician opined that the Veteran's diabetes mellitus type 2 did not impact the Veteran's ability to work. Upon a January 2012 examination, a clinician did not indicate that the Veteran's tinea versicolor was productive of functional impairmentsocially or occupationally. Upon a November 2012 VA examination, a clinician reported that the Veteran's PTSD causes occupational and social impairment with reduced reliability and productivity. The VA clinician noted that the Veteran does describe occasional hallucinations, which have been consistently reported for decades. However, the VA examiner reported that the hallucinations are not frightening or threatening. In September 2014, the private psychologist consultant reported that the Veteran was unemployed and subsequently unemployable due to his service-connected PTSD. Further, the consultant indicated that that the Veteran's PTSD causes occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. In a February 2016 VA examination report, a clinician noted that there was no clear indication of psychosis as the Veteran's report of hearing voices appears to be a sleep experience, rather than an experience he has when awake. The clinician reported that the Veteran's PTSD causes occupational and social impairment with reduced reliability and productivity. As noted above, in lay contentions, the Veteran's siblings note that the Veteran experiences major panic attacks; works minimally; experiences memory problems and anxiety; and cannot tolerate the presence of groups of people. The record shows that the Veteran graduated from high school and attended one year of college. Professionally, the evidence of record shows that the Veteran has many years of experience working in the hair care and barbering industry. Further, the Veteran's military occupational specialty (MOS) was an ammunition storage specialist. The Veteran also has professional experience in the general metals industry. While the Veteran and his representative advance that service-connected disabilities rendered the Veteran unable to obtain or retain employment consistent with his education and experience prior to October 29, 2018, the evidence of record shows that he has a high school degree, a year of college. and education and a professional the hair care and metallurgy industries. And, the psycho-medical evidence, with the outlying consultant's September 2014 report of diminished probative weight, fails to show that any one disability or combination of disability rendered the Veteran unable to obtain or retain employment prior to October 29, 2018. In accordance with the Court's holding in Ray, the Board has considered the economic and noneconomic components of the Veteran's TDIU claim. Ray, 31 Vet. App. 58. Collectively, the Board finds that this combination of education and work experience prior to October 29, 2018 were more than sufficient for the Veteran to obtain and maintain substantial employment considering her specific education and specific work in several professions. See Withers v. Wilkie, 30 Vet. App. 139 (2018). The Board recognizes that prior to October 29, 2018, the Veteran experienced bouts of occupational and social impairment with reduced reliability and productivity. However, these limitations did not rise to the level of rendering the Veteran totally impaired physically, occupationally, or socially. Indeed, the evidence of record does not reveal that any one of her service-connected disabilities, or the entirety of his service-connected disabilities, precluded him from obtaining and maintaining gainful employment prior to October 29, 2018. Here, the Board takes especial notice that the psycho-medical evidencewith the outlying consultant's September 2014 report of diminished probative weightshows that the Veteran's PTSD at worst was productive of occupational and social impairment with reduced reliability and productivity prior to October 29, 2018. Prior to October 29, 2018, the Veteran's job skills would have lent themselves to employment in the hair care or metallurgy industries in a "behind the scenes capacity," such as ordering and maintaining inventory; maintaining appointment logs; running payroll and cashiering duties; and a host of additional capacities (to include training less-experienced beauticians and general metal industry workers). As already noted, the Veteran did not meet the schedular requirements for entitlement to a TDIU prior to October 29, 2018. And the evidence of record fails to reveal that exceptional circumstances existed prior to October 29, 2018, which would warrant consideration under 38 C.F.R. § 4.16(b). The rating schedule was created as a guide to evaluating disabilities resulting from all types of diseases and injuries encountered, and the percentage ratings that are assigned represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. Accordingly, the grant of a TDIU on an extraschedular basis prior to October 29, 2018 is denied. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. J. Komins, 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.