Citation Nr: 21062255 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 19-27 864 DATE: October 6, 2021 ORDER Prior to August 7, 2020, entitlement to an initial rating of 50 percent, but no higher, for posttraumatic stress disorder (PTSD) with chronic sleep impairment is granted. From August 7, 2020, entitlement to an initial rating in excess of 50 percent for PTSD with chronic sleep impairment is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran's PTSD has been manifested by occupational and social impairment with reduced reliability and productivity due to such symptoms as: disturbances of motivation and mood, irritability, and difficulty in establishing and maintaining effective work and social relationships. The Veteran's PTSD was not manifested by occupational and social impairment with deficiencies in most areas or a total occupational and social impairment. 2. Since November 15, 2017, the Veteran has had a 70 percent rating for service-connected disabilities that have rendered him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to August 7, 2020, the criteria for an initial 50 percent rating, but not higher, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434. 2. From August 7, 2020, the criteria for an initial rating in excess of 50 percent for PTSD have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.130, Diagnostic Code 9434. 3. The criteria for a TDIU have been satisfied. 38 U.S.C. §§ 1155, 7104; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1951 to January 1953 and from October 1953 to January 1956. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2020, the Veteran and his cousin testified at a videoconference hearing before the undersigned. A transcript of the hearing is associated with the claims file. In February 2020, the Board remanded the issue of an increased rating for PTSD; and in December 2020 and July 2021, the issues of an increased rating for PTSD and TDIU were remanded. The July 2021 Board remand directed the RO to obtain the Veteran's treatment records from the Vet Center in Detroit. Treatment records from the Vet Center were associated with the file in July 2021. See Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an initial rating of 50 percent, but no higher, for PTSD with chronic sleep impairment The Veteran filed his claim for service connection for PTSD in November 2017. He is currently rated as 30 percent disabling prior to August 7, 2020 and 50 percent disabling thereafter. In his June 2018 notice of disagreement, he indicated he was seeking a 70 percent evaluation. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. Part IV. If two evaluations are potentially applicable, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Under the General Formula for Mental Disorders (General Formula), a 30 percent rating is assigned when symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, or mild memory loss (such as forgetting names, directions, or recent events), cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and normal conversation). A 50 percent rating is assigned when symptoms such as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation or own name. The Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). The Veteran underwent a mental health outpatient consultation in July 2017. The behavioral observations by the psychologist at that time were all within normal limits. The Veteran was assessed with adjustment disorder. The Veteran reported he was there for therapy and to understand the process for filing a claim for PTSD. It was noted the Veteran would be referred to the Detroit Vet Center for therapy. Initial Vet Center treatment notes from August 2017 reflect the Veteran reported symptoms including increased irritability and anger, difficulty falling asleep, and frequent intrusive thoughts about combat experiences. He denied suicidal and homicidal ideation. In his post military history, documented in August 2017, the Veteran's symptoms were noted as anger and irritability, insomnia, nightmares, anxiety, hypervigilance, and isolation. It was noted he used his family and church members as social support and was unemployed. At that time, the Veteran reported symptoms of anxiety, poor sleep, anger, irritability, depression, and nightmares. He was cooperative and appropriate during the session. Treatment notes from September 2017 reflect the Veteran reported he continued to experience anxiety, anger, irritability, isolation, and insomnia. The Veteran reported anxiety six out of seven days, anger six out of seven days, and insomnia six out of seven days the week before. These symptoms continued to be reported in individual sessions throughout 2017. In a November 2017 letter, the Veteran's therapist noted symptoms of overwhelming emotions, anger, irritability, isolation, anxiety, nightmares, recurrent memories, and hypervigilance. Treatment notes from February 2018 reflect the Veteran was stable in treatment. The Veteran also participated in a PTSD group at the Vet Center, and was generally noted as participating in group discussion and being cooperative and appropriate. The Veteran underwent a VA examination in March 2018. At that time, the examiner noted a diagnosis of PTSD. The examiner noted occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. It was noted the Veteran lived alone. He had a good relationship with his son and two grandchildren. He had a few friends but stated most people angered him. He attended church. The examiner listed the following symptoms that applied to the Veteran's diagnosis: depressed mood, anxiety, and chronic sleep impairment. Vet Center treatment notes throughout 2018 reflect the Veteran largely attended and appropriately participated in mostly group sessions. Treatment plan reviews in April and October 2018 reflect the Veteran agreed to work on his PTSD symptoms including poor sleep and anxiety. VA emergency department records from November 2018 reflect the Veteran was taken to the emergency department by VA police after he told staff in the audiology department, he had no reason to live after he received a notice for back taxes. He stated he did not know what else to do but buy a gun and shoot himself. He reported his problems began when his service connection was cut 30 percent and he could not make financial ends meet. His mood and affect at that time were depressed, sad, and angry. He was preoccupied with suicidal ideations. His insight and judgment were fair. His speech was clear, slow, and logical. The rest of his mental status examination was within normal limits. The Veteran was admitted to the hospital from the emergency department, on a voluntary basis, from November 26, 2018 to November 29, 2018. During his hospitalization, the Veteran reported a disturbance of sleep, sleeping two to three hours per night, and nightmares about his military history. He reported intact concentration, energy level, and appetite; and denied any suicidal ideation, intent, or plan. A spiritual assessment during that time reflects the Veteran reported suicidal ideation since a substantial disability cut. During a mental status examination, it was noted he was preoccupied with benefits being cut. While he denied suicidal ideation, he reported homicidal thoughts. Upon discharge, a primary diagnosis of adjustment disorder with depressed mood and a secondary diagnosis of chronic PTSD suicidal ideation was noted. During a telephone call in December 2018, the Veteran reported he was doing okay. He was not sleeping great but had had that problem for a long time. He denied suicidal and homicidal ideation. During a face-to-face visit in December 2018, the Veteran denied suicidality and homicidally. A mental status examination from that time indicated his mood and affect were pleasant, but he expressed concerns regarding his benefits being cut. His hygiene and grooming were fair. His insight and judgement were fair. The Veteran declined mental health services and supports. Vet Center treatment notes from December 2018 and January 2019 reflect the Veteran missed several group sessions and explained he had had surgery on his eye, had been sick, and did not want to drive in the bad weather. The Veteran largely attended group sessions starting again in February 2019, and was generally noted as participating and being cooperative and appropriate. During phone conversations when the Veteran missed a session, for example in March 2019, it was generally noted that no suicidal or homicidal ideation was expressed. During his individual session in April 2019 his noted symptoms continued to include anxiety and poor sleep. He was cooperative and appropriate, voiced no suicidal or homicidal ideation, and his mental and psychological functioning appeared appropriate. His Vet Center treatment notes remained largely consistent. A progress note from September 2019 reflects the Veteran continued with group therapy weekly and received individual counseling as needed. A note from November 2019 reflects the Veteran missed an appointment and told his counselor he did not have transportation to the Vet Center. His case was closed until he could get transportation and arrange to have it reopened. During the February 2020 Board hearing, the Veteran explained that he had panic attacks or anxiety when somebody would come and put any kind of pressure on him. That was why he had to stay away from people. He explained sometimes he would just go off completely, and that was what his problem was. He stated this had been going on since he returned from Korea, but it worsened in the last ten or 15 years. He testified that for the most part he did not interact with others and did not engage in social events. He went to dinner with his cousin, and it ended up with a problem. He stated he was having cognitive issues. He felt that the VA examination did not adequately address the true symptoms of his condition. He indicated he had to live by himself because he could not have anyone knock on his door while sleeping because it would scare him half to death. He explained he could not talk to people for long. He indicated his condition was why he lost his job. He stated he has been retired since 1978 and everything had been better off. The Veteran's cousin testified that she noticed that in the last few years that he did not come to family functions. She noticed a lack in other things that he used to go out and do. A progress note from March 2020 reflects the Veteran was counseled over the telephone. The Veteran focused on his benefits. He was fully oriented, and it was noted he was managing his symptoms safely at home. The records reflect the Veteran continued to receive some counseling over the telephone and the progress notes were largely consistent with earlier notes addressing symptoms such as sleep, anxiety, and irritability. Clinic notes from May to June 2020 reflect the Veteran had gone to the VHMC because he had not been able to connect with the Vet Center. He wanted to speak to someone about his anger; and he had an increase in his depression since the pandemic. The Veteran underwent a PTSD program assessment in July 2020. It was noted the primary symptoms of concern at the time of referral included: nightmares related to trauma, avoidance, unwanted thoughts/memories, anxiety and/or panic, and depressive symptoms. He reported his current concerns were that only a few people understood him, feeling anxious, and getting angry lots of the time. The Veteran stated his problems had gotten worse as he got older. His primary coping mechanism had been to stay alone and limit social interactions. The Veteran reported nightmares that woke him up, significant difficulties with sleep onset and sleep maintenance. He got two hours of sleep per night on average. The Veteran also described cognitive avoidance. He reported feeling distant and cut-off from others. He described his dog as his closest companion and stated other people did not understand him or combat. As a result, he found himself getting upset with others for misunderstanding him. Therefore, he kept mostly to himself to limit frustration. He indicated there were a few people that he felt close to, including his grandson and a few veterans. He also reported difficulty experiencing positive emotions. He described his typical mood as being angry or feeling ashamed of the things he did when angry. He described pervasive irritability with periods of anger outbursts. He stated he is quick to anger and will yell and occasionally throw things. The Veteran appeared slightly disheveled with stained clothing and fair hygiene. The Veteran endorsed passive suicidal thoughts, such as he wished he had never been born, but denied active suicidal ideation and denied plan or intent for self-harm. The Veteran stated these thoughts were precipitated by various psychosocial stressors, primarily financial in nature. With respect to symptom severity, the clinician indicated "severe/markedly elevated" for the criteria of feelings of detachment from others, sleep disturbance, and impaired social functioning. "Moderate/threshold" symptoms included: unpleasant dreams about the trauma, avoidance of thoughts or feelings about trauma, strong persistent negative feelings, reduced emotional experience, irritability or anger outbursts, elevated startle response, and subjective distress. "Mild/subthreshold" symptoms included: unwanted memories of the trauma, emotional distress at reminders, avoidance of external reminders of trauma, strong persistent negative beliefs, and hypervigilance. In response to the suicide severity rating scale, the Veteran reported over the past month he wished he was dead or wished he could go to sleep and not wake up, but did not have any actual thoughts of killing himself. The Veteran underwent another VA examination in August 2020. The examiner found the Veteran had occupational and social impairment with reduced reliability and productivity. The examiner noted the Veteran struggled to provide a thorough chronological history of any psychological treatment. The examiner noted the following symptoms that applied to the Veteran's diagnosis for VA rating purposes: depressed mood; anxiety; suspiciousness; panic attacks that occur weekly or less often; chronic sleep impairment; mild memory loss; flattened affect; speech intermittently illogical, obscure, or irrelevant; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. The examiner noted the Veteran's voice was weak and at times difficult to understand. His overall cognition, insight, and awareness were somewhat impaired, and his speech was at times difficult to understand. She noted the Veteran could benefit from a relative joining him for evaluations to help him with his history as he struggled to provide detailed information during the interview. Vet Center progress notes from September 2020 reflect the Veteran needed additional funds and was waiting to have a video conference concerning benefits for his PTSD. He had no other complaints to discuss. Progress notes from later in September 2020 reflect the Veteran continued to be frustrated with the time it was taking to get paid. It was noted the Veteran had problems sleeping and was having difficulty paying his bills. It was further noted he appeared to be managing his PTSD symptoms safely. Treatment notes from October 2020 reflect the Veteran was happy to report a higher disability rating. He still experienced symptoms of started response and nightmares on occasion, and had a very difficult time sleeping at night. Progress notes from December 2020 indicate the Veteran focused on "coping and symptom management, daily and upcoming stressors, and safety issues to include depressed mood and suicidal and homicidal ideation." Treatment notes from January 2021 note the Veteran seemed to have a reduction in irritability and anxiety episodes. Treatment notes from February 2021 reflect that the Veteran reported difficulty sleeping and getting agitated around people. Treatment notes from March 2021 reflect the Veteran had learned to stay away from people who upset him, and he was managing his PTSD symptoms safely. Progress notes through July 2021 continue to reflect the Veteran was addressing isolating himself, irritability, anxiety, and anger, but was managing his PTSD symptoms safely. The Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating for the entire period on appeal. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. While significant weight is afforded the March 2018 VA examiner's opinion in light of the examiner's medical expertise, the record reflects the Veteran's symptoms more closely approximated the symptoms contemplated by a 50 percent rating than a 30 percent rating as she opined. The Board notes that the March 2018 VA examiner indicated she reviewed the VA e-folder. However, the Veteran's Vet Center treatment records were not added to the file until July 2021. The Vet Center records discuss the Veteran's symptoms of irritability, anger, and need to isolate in addition to his chronic sleep impairment, depressed mood, and anxiety. The Veteran's testimony at the February 2020 Board hearing was largely consistent with his Vet Center treatment notes. The Veteran's need to isolate to avoid getting angered by others suggests difficulty in establishing and maintaining effective work and social relationships, which is a symptom contemplated by a 50 percent rating. The Board notes that the Veteran expressed suicidal ideation, which is similar to persistent danger of self-harm, which is contemplated by the 100 percent criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). However, the severity, frequency, and duration of the Veteran's suicidal ideation has not risen to the level contemplated by the 100 percent disability rating. The Veteran regularly denied thoughts, intent, or a plan involving self-harm in existing treatment records. While the Veteran did experience symptoms contemplated by a 70 percent ratingsuch as suicidal ideation and difficulty adapting to stressful circumstances, as suggested by his response to his reduction in benefits, the record does not suggest the severity, frequency, or duration, of these symptoms demonstrate the level of impairment contemplated by the 70 percent rating. While the Veteran was hospitalized for suicidal ideation, even while hospitalized he reported that he was not suicidal. Passive suicidal ideation was again noted in July 2020, however, treatment records from the Vet Center, where the Veteran received regular counseling, largely reported no suicidal or homicidal ideation. The evidence overall does not demonstrate the level of impairment associated with a 70 percent rating. For example, the Veteran did maintain some relationships, including with his family, and established relationships with other veterans in group counseling. He did not exhibit most of the symptoms listed at the 70 percent level or other symptoms of similar severity. While several of the Veteran's symptoms, including chronic sleep impairment, anxiety, and depressed mood are expressly contemplated by a 30 percent rating, overall, the Veteran's symptoms are most consistent with a 50 percent rating. Additionally, significant weight is afforded the opinion of the August 2020 VA examiner considering her medical expertise. Moreover, the Veteran has not demonstrated total occupational and social impairment to warrant a 100 percent rating. In sum, the Veteran's PTSD more nearly approximated the criteria for a 50 percent rating for the appeal period. Entitlement to a TDIU The Veteran seeks a TDIU. In his VA Form 21-8940 He contends that he cannot work because of his age, hearing problems, health, and PTSD. A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) Disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3)disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran has the following disabilities that are service connected: PTSD (rated 50 percent from November 15, 2017); bilateral hearing loss (rated 30 percent from May 13, 2014 and 50 percent from August 24, 2020); and tinnitus (rated 10 percent from May 13, 2014). Based on the forgoing, the Veteran has at least one disability rated at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent. Accordingly, the Board may consider the claim for a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). For the reasons that follow, the Board finds that a TDIU is warranted. The Veteran indicated in his VA Form 21-8940 Application for Increased Compensation Based on Unemployability that he has an eighth-grade education and no other education or training. The section regarding past employment was left blank. However, in his November 2014 VA examination he reported that prior to joining the Army he was a laborer with Ford Motor Company. After leaving the Army, he tried to get his job at Ford back, but indicated he was denied employment and was told he was too old. He reported he purchased his own truck and was self-employed doing odd jobs including hauling trash. He stated he continued to work into his 70s. In a November 2017 letter, the Veteran's therapist indicated the Veteran never had steady work after discharge from the military and had been self-employed with menial jobs. During the February 2020 Board hearing, the Veteran testified that he lost his job because he could not talk to people for long and he had been retired since 1978 and everything had been better off since then. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the physical effects of his bilateral hearing loss. During the January 2018 VA hearing loss examination, the examiner noted the Veteran's hearing loss impacts ordinary conditions of daily life, including ability to work. The Veteran reported he had significant difficulty hearing and understanding speech. Speech discrimination testing was attempted, but the Veteran's responses could not be clearly understood due to speech articulation. Treatment notes from December 2018 indicate the Veteran was verbal but had severe hearing loss and had to be spoken to directly so he could read lips as well to understand. The testimony of the Veteran's cousin at the February 2020 Board hearing similarly reflected the need to speak to the Veteran in person and his difficulty understanding telephone conversations. She stated the Veteran was just saying yes, but was not understanding what was being said. She would have to go and talk to him in person. During the March 2020 VA examination, the examiner reported the Veteran's hearing loss impacted his ability to work. The Veteran reported even with hearing aids he had a difficult time understanding others, especially on the telephone. The Veteran's ability to secure and follow a substantially gainful occupation is impacted by the mental effects of his PTSD. The Veteran reported needing to isolate himself, irritability, anger, anxiety and not doing well under stress. His therapist explained in a November 2017 letter that he had been self-employed with menial jobs and his irritability was heightened for the lack of stimulus, thus prolonged combat fight or flight chemistry, in which he has used isolation as a negative coping skill. The therapist described the Veteran's PTSD symptoms as "incurable." (Continued on the next page) Given the forgoing, the Veteran's service-connected PTSD and bilateral hearing loss preclude him from the ability to secure and follow a substantially gainful occupation consistent with his education, skills, training, and work history. Considering the Veteran's difficulty tolerating others, need to isolate, irritability, and difficulty understanding others, when considered together, and in conjunction with his limited work history and education, the Board finds that he is precluded from employment. Accordingly, a TDIU is warranted. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Vemulapalli, 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.