Citation Nr: 21062104 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 17-56 364 DATE: October 6, 2021 ORDER Entitlement to a disability rating greater than 10 percent for left knee limitation of flexion prior to April 28, 2021 is denied. Entitlement to a disability rating greater than 30 percent for left knee limitation of flexion from April 28, 2021 is denied. Entitlement to a compensable disability rating for left knee limitation of extension prior to April 28, 2021 is denied. Entitlement to a disability rating greater than 10 percent for left knee limitation of extension from April 28, 2021 is denied. Entitlement to an increased rating of 30 percent, but no higher, for left knee instability is granted. FINDINGS OF FACT 1. Prior to April 28, 2021, the Veteran's left knee exhibited painful, decreased range of motion but was not manifested by limitation of flexion to 30 degrees or less, or limitation of extension to 10 degrees or more. 2. From April 28, 2021, the Veteran's left knee exhibited painful, decreased range of motion manifested by limitation of motion to 5 degrees or less, it was not manifested ankylosis in flexion between 10 and 20 degrees, or limitation of extension to 15 degrees or more. 3. During the appeal period, the Veteran's left knee was manifested by severe instability. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 10 percent for left knee limitation of flexion prior to April 28, 2021 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.7, 4.71a, 20.608, 20.704, Diagnostic Code 5003-5260 (2020). 2. The criteria for a disability rating greater than 30 percent for left knee limitation of flexion from April 28, 2021 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.7, 4.71a, 20.608, 20.704, Diagnostic Code 5003-5260 (2020). 3. The criteria for a compensable disability rating for left knee limitation of extension prior to April 28, 2021 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.7, 4.71a, 20.608, 20.704, Diagnostic Code 5010-5261 (2020) (2021). 4. The criteria for a disability rating greater than 10 percent for left knee limitation of extension from April 28, 2021 have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.7, 4.71a, 20.608, 20.704, Diagnostic Code 5010-5261 (2020) (2021). 5. The criteria for a disability rating of 30 percent, but no higher, for left knee instability have been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257 (2020) (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2001 to May 2005, and July 2002 to April 2003. He appealed an April 2017 rating decision by the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ) denying entitlement to a disability rating greater than 10 percent for left knee degenerative joint disease (DJD) instability. During the course of the appeal, the AOJ reduced the Veteran's left knee instability rating to noncompensable, effective October 1, 2019. A Board of Veterans' Appeals (Board) hearing was held in October 2020. A transcript is of record. In March 2021, the Board remanded the appeal to obtain an adequate VA examination. Subsequent to an April 2021 VA examination, the AOJ increased the Veteran's 10 percent rating for left knee flexion to 30 percent, and increased his noncompensable rating for left knee extension to 10 percent, effective April 28, 2021. The appeal is now back before the Board. Disability ratings are determined by applying a schedule of ratings based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran contends his left knee condition is more severe than his current ratings indicate. He is currently service connected for left knee DJD with limitation of flexion, rated at 10 percent prior to April 28, 2021 and 30 percent thereafter under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5003-5260. He also has a separate rating for left knee limitation of extension rated as noncompensable prior to April 28, 2021 and 10 percent thereafter under DC 5010-5261. Finally, the Veteran has a separate rating for left knee instability under DC 5257, rated at 10 percent prior to October 1, 2019 and noncompensable thereafter. Knee disabilities are generally rated under DCs 5256 through 5263 of 38 C.F.R. § 4.71a. DC 5256 addresses ankylosis of the knee. DC 5257 addresses recurrent subluxation or lateral instability. DC 5258 addresses dislocated semilunar cartilage in the knee manifested by frequent episodes of "locking," pain, and effusion into the joint. DC 5259 addresses symptomatic residuals related to removal of semilunar cartilage. DC 5260 addresses limitation of motion on flexion while DC 5261 addresses limitation of motion on extension. DC 5262 addresses impairment of the tibia and fibula from malunion or nonunion. DC 5263 addresses genu recurvatum. The Board must consider the Veteran's service-connected left knee condition under each diagnostic code and apply the appropriate ratings without having any of the symptomatology by duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran cannot receive compensation under two different codes for the same manifestations of symptoms as this would constitute impermissible pyramiding under 38 C.F.R. § 4.14. The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. However, the new rating criteria are not applicable prior to its effective date of February 7, 2021. For rating the knee, changes were made to DCs 5257 and 5262. Additionally, changes were made to DC 5010 for arthritis. Thus, both the old and new rating criteria for these diagnostic codes will be analyzed by the Board for the Veteran's ratings. A. Limitation of Motion The Veteran's left knee DJD was initially rated as 10 percent disabling based on demonstrated pain with movement under DCs 5003-5260. See December 2014 rating decision. He additionally received an initial noncompensable rating for limitation of extension under DC 5010-5261. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under the old rating criteria, DC 5010 provides that arthritis due to trauma is to be evaluated as degenerative arthritis pursuant to DC 5003. DC 5003 provides the criteria for rating disabilities that are due to degenerative arthritis. In instances where the loss of motion is non-compensable under the appropriate diagnostic code, a rating of 10 percent is assigned for each major joint or group of minor joints affected by the loss of motion. In the absence of any loss of motion, a 20 percent disability rating is assigned where there is x-ray evidence of involvement of two or more major joints with occasional incapacitating exacerbations. See 38 C.F.R. § 4.71a, DC 5003. Knees are considered major joints for rating purposes. See 38 C.F.R. § 4.45. Under this diagnostic code, the Veteran would not be entitled to a rating greater than 10 percent as the left knee is only one major joint. Under the new rating criteria, DC 2010 provides that post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. Thus, under both the old and new rating criteria, the Board must analyze the Veteran's left knee's range of motion under DCs 5260 and 5261, which did not change with the new rating criteria. Under DC 5260, a 10 percent disability rating is assigned where flexion of the leg is limited to 45 degrees. See 38 C.F.R. § 4.71a. A 20 percent disability rating is in order where leg flexion is limited to 30 degrees. Id. A maximum schedular 30 percent disability rating is assigned where leg flexion is limited to 15 degrees. Id. Similarly, DC 5261 provides ratings for limitation of extension with the following ratings assigned: 10 percent for limitation of extension to 10 degrees, 20 percent for limitation of extension to 15 degrees, 30 percent for limitation of extension to 20 degrees, 40 percent for limitation of extension to 30 degrees, and 50 percent for limitation of extension to 45 degrees. Id. For reference, normal range of motion for the knee is defined under the regulations as consisting of extension to zero degrees and flexion to 140 degrees. See 38 C.F.R. § 4.71, Plate II. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, or flare-ups is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. This includes any functional loss resulting in the equivalent of ankylosis during flareups or with repeated use over time. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors such as decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement. Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Therefore, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Additionally, when there is evidence of painful motion, 38 C.F.R. § 4.59 operates to provide at least the minimum compensable rating available under the appropriate diagnostic code for the joint. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). Prior to April 28, 2021 At a December 2015 VA examination, the Veteran's flexion was limited to 100 degrees with full extension. He had pain on all movement and his flexion was limited to 90 degrees with repetitive use. After this examination, the Veteran stated his knee had become worse and he was afforded a second examination in November 2017. See June 2017 notice of disagreement (NOD); October 2017 VA Form 9. In November 2017, a VA examiner similarly measured the Veteran's flexion to 100 degrees with full extension. At this examination, the Veteran did not have any extra limitation of motion after repetitive use. During the appeal period, the Veteran has had numerous physical therapy treatments and appointments for his left knee condition. On average, the Board finds these two examination results consistent with the record. For example, sometimes the Veteran had full range of motion of his left knee; whereas, on other occasions his flexion is limited to 70 degrees. See, e.g., February 2016 Rhode Island Limb Company records (range of motion is within normal limits); September 2016 VA treatment records (flexion to 70 degrees; flexion 135 standing). The record reflects the Veteran has always had full extension of his left knee. As such, the Veteran's left knee condition would not be compensable for VA benefits under DC 5260 or 5261 as a compensable rating requires either flexion limited to 45 degrees or less, or, extension limited to 10 degrees or more. However, when there is evidence of painful motion, 38 C.F.R. § 4.59 operates to provide at least the minimum compensable rating available under the diagnostic code for the painful joint. See Sowers, 27 Vet. App. at 478. Here, the Veteran is already in receipt of the minimum compensable rating of 10 percent under DC 5260 due to painful motion. Id. Thus, the Veteran would only be entitled to a higher rating if his right knee flexion was limited to 30 degrees or less, or extension was limited to 10 degrees or more. For this, the Board must also consider whether a higher rating is warranted based on any additional functional loss due to pain, weakness, fatigability, incoordination during flare-ups or with repeated use over time that results in the equivalent flexion limited to 30 degrees or less or extension limited to 10 degrees or more. See DeLuca, 8 Vet. App. at 204-07; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. During the entire appeal period, the Veteran noted he suffered from flareups and functional loss with repeated use over time. Neither VA examiner estimated the potential loss of motion or function of the left knee with repeated use over time or during flare ups; thus, these examinations are not probative in this regard. See Sharp, 29 Vet. App. at, 35. Fortunately, the Veteran provided ample lay and medical evidence for the Board to consider functional loss during flareups and with repeated use over time. When describing flareups at the December 2015 VA examination, the Veteran noted to have worse pain by the end of the day; this helps the Board understand the daily nature of the Veteran's knee condition, but does not describe his flareups. Additionally, this conflicts with his August 2019 statement that his pain is worse in the morning. See August 2019 SRA records. However, the Veteran consistently stated his pain was worse after walking long distances, and increased with bending, crouching, and walking up and down steps. See December 2015 VA examination report; August 2019 SRA records (worse pain from activities); September 2020 SRA records (more pain after a physical therapy session than when he starts). For example, at the November 2017 VA examination, the Veteran noted he had "difficulty walking long distances" and was unable to run or kneel. He also noted left knee flareups occur when he is "walking on uneven terrain" and noted his left knee gives out, occasionally locks, and pops. See November 2017 VA examination report. The Veteran similarly testified that, at times, his knee will lock when he kneels, bends, or sits down too long to the severity that he has needed help from his wife getting up from the ground after playing with his children. See October 2020 Board Hearing Tr. at 3, 5. He also testified his knee pain increases with activity, such as prolonged walking or standing. Id. at 6 (flareups of knee pain...trying to be more active). Overall, the record reflects the severity of left knee symptoms increase with repeated use, bending, or kneeling, and primarily result in increased pain, instability, and locking of the knee. However, the records do not reflect that even during flareups or with repeated use over time, his left knee pain would result in flexion limited to 30 degrees or less or extension limited to 10 degrees or more. For example, at a July 2020 National Physical Therapy (NPT) treatment session, the Veteran's flexion was limited to 58 degrees and his pain level was noted to be a 4 out of 10. Later, at an August 2020 NPT session, the Veteran reported his pain to be a 7 out of 10 but his flexion was only limited to 110 degrees. It was also noted at separate July and August 2020 NPT sessions the Veteran's left knee had severe knee pain with all motion and "was only able to tolerate a very light pressure." Although the physical therapist did not note the Veteran's range of motion, he completed his physical therapy sessions which included manual therapy of patella mobility, where the knee was moved from a flexed to extended position. Importantly, the Veteran stated his worst pain during flare ups was a "6 to 7 out of 10." See April 2021 VA examination report. Thus, the NPT treatment records discussed above are probative for estimating functional loss during flareups and with repeated use over time as the Veteran reported his pain at level 7 and his flexion was only limited to 110 degrees. See August 2020 NPT treatment records. Thus, the evidence reflects the Veteran cannot run or walk for long periods of time and he cannot climb stairs due to increased pain and the occurrence of flare-ups, but it does not reflect his range of motion decreased to flexion limited to 30 degrees or less or extension limited to 10 degrees or more during these flare-ups. As such, the Board finds the evidence of record does not reflect flare-ups and repeated use over time result in functional loss equivalent to flexion limited to 30 degrees or less or extension limited to 10 degrees or more. Further, the Veteran is not entitled to a separate rating under DC 5261. Any second, separate rating under DC 5261 for painful motion is impermissible as his right knee symptoms of painful motion are fully addressed under DC 5260 and assigning an additional rating would violate the rules prohibiting pyramiding as it would compensate the Veteran twice for the same symptomatology of pain. 38 C.F.R. § 4.14; Sowers, 27 Vet. App. at 478. Thus, the Board finds the Veteran is not entitled to a rating greater than 10 percent for left knee limitation of flexion or a compensable rating for limitation of extension prior to April 28, 2021. From April 28, 2021 At the April 2021 VA examination, the Veteran's left knee symptoms were significantly more severe than at any time reflected in the record. At the examination, the Veteran's flexion was limited to 5 degrees and he could not perform repetitive-use testing due to "fear of pain." See April 2021 VA examination report. Interestingly, the VA examiner did not state this examination was conducted during a flareup or immediately after repeated use. As such, the VA examiner estimated any additional functional loss during a flareup would result in a decrease of 5 degrees of motion. As a result of this VA examination report, the AOJ increased the Veteran's disability rating to 30 percent for limitation of flexion, effective the date of the examination. The AOJ then increased the Veteran's limitation of extension to the minimum compensable rating available under DC 5261, or 10 percent, for painful motion. See Sowers, 27 Vet. App. at 478. This was also granted effective the date of the VA examination. The Veteran is not entitled to an increased disability rating from April 28, 2021. Under DC 5260, the Veteran is currently in receipt of the highest rating, or 30 percent. He is also not entitled to a rating greater than 10 percent under DC 5261 as the record reflects he has full extension of his left knee. See April 2021 VA examination report. Thus, from April 28, 2021, the Board denies a rating greater than 30 percent for limitation of flexion and a rating greater than 10 percent for limitation of extension. B. Instability As noted above, the rating criteria under DC 5257 changed on February 7, 2021. As such, the Board must consider the Veteran's instability under both the new and old rating criteria. Under the old rating criteria, DC 5257 provides ratings for demonstrated knee joint instability with the following ratings assigned: 10 percent for slight, 20 percent for moderate, and 30 percent for severe, recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, DC 5257. The words "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." See 38 C.F.R. § 4.6. "Nothing in [Code] 5257 provides that objective medical evidence is required or is to be favored over lay evidence." See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Under the new rating criteria for a recurrent subluxation of instability of the knee, a 10 percent rating is warranted for a sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. See 38 C.F.R. § 4.71a, DC 5257. A 20 percent rating is warranted for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation, or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Id. Finally, a 30 percent rating is warranted for a disability manifest as unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Id. For patellar instability of the knee, a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Id. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. Id. And a 30 percent rating is applied for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id. The Veteran's left knee instability is rated at 10 percent disabling under DC 5257, prior to October 1, 2019 and has a noncompensable rating thereafter. The record does not reflect the Veteran has a history of left knee sprain, ligament tear, or repaired ligament tear; the record also does not reflect the Veteran ever had a diagnosed condition involving the patellofemoral complex. See, e.g., August 2019 Southeast Rehabilitation Association (SRA) records (2016 MRI shows no abnormalities); April 2021 VA examination report. As such, an increased rating for left knee instability under the new rating criteria from February 7, 2021 is not warranted. Thus, the Board will proceed to rate the entire appeal period under the old rating criteria. Under the old criteria, after review of the medical and lay evidence of record, the Board finds the Veteran's right knee exhibited severe instability during the appeal period. The record reflects the Veteran regularly used a left knee brace during the entire appeal period. See, e.g., March 2016 NOD; April 2021 VA examination report. In February 2016, the Veteran was fitted with a prescribed custom metal brace to specifically address his instability. See January 2016 VA treatment records ("he would benefit from a left knee orthotic to address this instability"); see also February 2016 Rhode Island Limb Company records. Prior to the metal brace, he was prescribed a neoprene orthosis by VA which he constantly used. See April 2016 VA treatment records. The Veteran consistently contends his left knee braces are for support and stability as his left knee will often lock of give away. See, e.g. March 2016 NOD ("therapist recommended a knee brace because there is too much movement"); September 2016 VA treatment records ("left knee gives out while walking"); November 2017 VA examination report ("left knee gives out"); July 2020 National Physical Therapy (NPT) records ("left knee gives out; not had more than two falls in the past year"). At the October 2020 Board hearing, the Veteran testified that without a brace, he will lose his balance and fall due to his left knee giving away. See 2020 Board Hearing Tr. at 4-5, 10. He noted when he takes his brace off at home, he has to "grab a chair or couch that is stable," or lean on a counter or railing to prevent his knee from giving away. Id. The Board finds the Veteran competent to report the frequency and severity of his left knee instability. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). His statements are also credible as they have been reported consistently during his various left knee treatments throughout the appeal period. Further supporting the Veteran's contentions is the medical evidence reflecting left knee instability during the appeal period. For example, as noted above, the Veteran's VA physical therapist noted the Veteran would "benefit from a left knee orthotic to address [his] instability." See January 2016 VA treatment records. Also, a November 2017 VA examiner noted the Veteran had slight lateral instability. Thus, based on the medical evidence of record and the credibility of the Veteran, the Board finds the Veteran's statements probative. As such, the Veteran's left knee instability more closely approximated severe instability and he is therefore entitled to a rating of 30 percent under DC 5257 for the entire appeal period. This is the maximum rating under DC 5257; therefore, the Veteran is not entitled to a higher rating. As such, the Board grants an increased rating of 30 percent, but no higher, for right knee instability. C. Other Diagnostic Codes Ankylosis of the knee is rated under DC 5256. The Board notes ankylosis is defined as immobility and consolidation of a joint due to disease, injury, or surgical procedure. 38 C.F.R. § 4.71a (defining ankylosis as fixation of a joint in a particular position). A 30 percent rating is warranted for favorable angle ankylosis in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is warranted for ankylosis fixated in flexion between 10 and 20 degrees. A 50 percent rating is warranted for ankylosis fixated in flexion between 20 and 45 degrees. Finally, a 60 percent rating is warranted for extremely unfavorable ankylosis with flexion fixated at 45 degrees or more. A veteran may experience the functional equivalent of ankylosis during flareups or with repeated use over time due to pain, fatigue, weakness, or loss of coordination. See Chavis, 34 Vet. App. 1. Here, the April 2021 VA examiner noted the Veteran could not move his knee during flareups due to pain and was locked at 0 degrees. This functional loss due to pain during flareups is the equivalent of ankylosis. However, the Veteran is already in receipt of a 30 percent rating for limitation of flexion from the date of the April 2021 VA examination. He would not be entitled to a higher rating under DC 5256 unless this functional equivalent of ankylosis resulted in flexion locked at 10 degrees or greater. The record does not reflect this level of ankylosis during flare ups. As such, the Veteran is not entitled to a separate or higher rating under DC 5256. Additionally, the evidentiary record does not suggest impairment of tibia and fibula or genu recurvatum. As such, separate disability ratings under DCs 5262 and 5263 are not warranted during the appeal period. Finally, DCs 5258 and 5259 address the dislocation and removal of semilunar cartilage. The record does not reflect the Veteran has a dislocated or removal of semilunar cartilage; hence, disability ratings under DCs 5258 or 5259 are not applicable. (Continued on the next page) Accordingly, all potentially applicable diagnostic codes have now been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). In summation, the Board denies a rating greater than 10 percent for left knee limitation of flexion prior to April 28, 2021 and 30 percent thereafter under DCs 5003-5260. The Board also denies a compensable rating for left knee limitation of extension prior to April 28, 2021 and 10 percent thereafter under DC 5010-5261. However, the Board grants entitlement to an increased rating of 30 percent, but no higher, for left knee instability. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Bona, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.