Citation Nr: 21063458 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-10 982 DATE: October 14, 2021 ORDER Entitlement to service connection for a lumbar spine disability, to include as secondary to pes planus, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) also is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disability is not caused or being aggravated by any service-connected disability, including especially by his pes planus, and is not otherwise related or attributable to his service and did not onset within one year of his separation from service. 2. The Veteran's service-connected disabilities do not meet the schedular rating requirements for a TDIU and do not render him incapable of obtaining and maintaining substantially gainful employment to warrant considering his entitlement to this benefit alternatively on an extra-schedular basis. CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to service connection for a lumbar spine disability either as directly due to service, presumptively due to service, or as secondary to any service-connected disability. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 2. The criteria also are not met for entitlement to a TDIU, including on an extra-schedular basis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1989 to March 1994. This appeal to the Board of Veterans' Appeals (Board) is from a November 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified in support of these claims during a hearing before the undersigned Veterans Law Judge (VLJ) of the Board in April 2019. A transcript of the hearing is of record. The Board since has remanded these claims back to the RO on three occasions for further development and consideration initially in July 2019, then again in August 2020, and most recently in May 2021, including to obtain an addendum medical opinion concerning the origins of the Veteran's lumbar spine disability, especially in terms of whether caused or aggravated by his service or a service-connected disability, specifically, his pes planus. The remand directives were completed, as instructed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Service Connection 1. Entitlement to service connection for a lumbar spine disability, including as secondary to pes planus (flat feet) The Veteran asserts that his lumbar spine disability is either directly due to his service or secondary to a service-connected disability, including especially his pes planus. Service connection is warranted on a direct basis where the evidence of record establishes that a particular injury or disease resulting in disability was directly incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or a disease, and (3) a nexus, or link, between the current disability and the disease or injury in service. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Certain diseases, including arthritis, also may be presumed to have been incurred in service if they manifested to a compensable degree (generally meaning to at least 10-percent disabling) within a year after the Veteran's separation from service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). Here, though, during his May 2011 VA examination, the Veteran conceded that his lumbar spine (low back) disability had onset in 2001, so some 7 years after his separation from service in March 1994. There is no probative indication he had arthritis in his low back within a year of his discharge from service, meaning by March 1995, so service connection based on a presumption of an onset of this chronic disease during his service is not warranted. Service connection also may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310(a) and (b); see also Allen v. Brown, 7 Vet. App. 439 (1995). The Board concludes that, while the Veteran has a current lumbar spine disability consisting of degenerative arthritis and intervertebral disc syndrome (IVDS), the preponderance of the evidence is against finding that his lumbar spine disability is the direct result of his service, or, as already explained, onset within a year of his separation from service to warrant presuming it was incurred during his service, or is secondarily related to his service as mentioned, meaning caused or being aggravated by a service-connected disability, particularly by his pes planus. 38 U.S.C. §§ 1110, 1101, 1112, 1113, 1131, 1137; 38 C.F.R.§§ 3.303, 3.307, 3.309, 3.310. VA treatment records from September 2002 show the Veteran was in a motor vehicle accident (MVA) two months earlier and had experienced lower back, hip, and leg pain since that accident. A March 2003 VA treatment record shows he continued to complain of lower back pain attributable to that accident in 2002. So, there is indication of intervening ("intercurrent") injury to his low back that is unrelated to his service or service-connected disability. In May 2011 the Veteran underwent a VA lumbar spine examination. He reported an onset of back pain in around 2001, and the examiner confirmed a diagnosis of IVDS with degenerative arthritis. In providing an opinion on service connection, however, the examiner stated that he could not provide an opinion as to secondary service connection without resorting to mere speculation. A July 2015 VA treatment record shows the Veteran underwent an x-ray of his lumbar spine because he "continues to experience pain in lower back, hips, and legs" since the 2002 MVA. During his April 2019 hearing before this Board, the Veteran testified that doctors had told him that his lumbar spine disability was caused by his service-connected pes planus because the pes planus impacts the way he walks. However, a review of the medical evidence of record does not show that this assertion was recorded in the written record, i.e., reduced to writing to confirm that this is this doctor's actual belief. Generally speaking, a claimant's account of what a doctor purportedly said, filtered as it is through a layman's sensibilities, is simply too attenuated and inherently unreliable to constitute competent medical evidence in support of a claim for service connection. See Robinette v. Brown, 8 Vet. App. 69, 77 (1995). See also LeShore v. Brown, 8 Vet. App. 406, 409 (1995) (the mere transcription of medical history does not transform the information into competent medical evidence merely because the transcriber happens to be a medical professional). In October 2019, following the Board's initial remand of this claim, the Veteran again underwent a VA lumbar spine examination, and the examiner provided multiple requested service connection opinions. Concerning direct service connection, the examiner opined that it is less likely than not the Veteran's lumbar spine disability is the result of his military service because his service treatment records (STRs) do not show any complaints of back pain and the first notation of a back disability in his record is from 2003, some 9 years after his separation from service. Concerning secondary service connection, the Board sees that, throughout the pendency of this appeal, the Veteran's pes planus, tinnitus, hypertension, and bilateral hearing loss have been adjudicated service-connected disabilities. However, the October 2019 examiner opined that it is less likely than not the Veteran's lumbar spine disability was either aggravated by or proximately due to his bilateral hearing loss, tinnitus, or hypertension. The rationale being that medical literature does not support any causation or aggravation relationship between a lumbar spine disability and hearing loss, tinnitus, or hypertension, and generally the lumbar spine is medically unrelated to hearing loss, tinnitus, or hypertension. Concerning the pes planus, the examiner opined that it also is less likely than not the Veteran's lumbar spine disability was aggravated by or is proximately due to his pes planus. However, as discussed in the Board's subsequent August 2020 additional remand of this claim, that opinion was found inadequate because the examiner then provided rationale as to the Veteran's lumbar spine disability conversely aggravating his pes planus, rather than the requested opinion of whether his pes planus instead aggravates his lumbar spine disability. Further, the Board found the opinion inadequate because the examiner conceded that she was unable to confirm a chronic diagnosis of a lumbar spine disability, however, a current lumbar spine disability is well documented in the medical evidence of record. The Veteran resultantly underwent an additional VA lumbar spine examination in December 2020. Unfortunately, that examiner did not provide the fully requested opinion, so the Board again remanded this claim in May 2021. In July 2021, a VA examiner provided the requested addendum opinion based on a review of the Veteran's claims file. The examiner opined that it is less likely than not the Veteran's lumbar spine disability is the direct result of his military service. The rationale was that the Veteran's STRs do not indicate the details of any spinal injury during his service, but a review of his medical records from after his separation from service show that he was in a MVA in 2002, and the records also show an onset of lumbar spine pain three months after that MVA. The examiner explained that the Veteran's lumbar spine disability has progressed consistent with the etiology of degenerative disc disease (DDD) and IVDS. The examiner further pointed out that there is a lack of treatment or complaints of any back pain during the Veteran's service and after separation until the 2002 MVA. Additionally, the medical evidence of record shows a clear onset of the back pain after that MVA in 2002 and consistent treatment since. Concerning the Veteran's claim that his pes planus caused or aggravates his lumbar spine disability, this July 2021 VA examiner made note of the fact that the Veteran's medical records show no correlation between his back condition and his underlying flat feet. His flat feet have not severely worsened such that it would cause gait impairment that would lead to chronic back pain. And, finally, pes planus does not cause DDD of the lumbar spine. In support of this conclusion, the examiner cited a May 2011 physical examination showing the Veteran's pes planus was in remission, at the same time IVDS and DDD were diagnosed, which is clear indication that, despite his pes planus being asymptomatic, his lumbar spine continued to deteriorate. Ultimately, the July 2021 VA examiner did not find any relationship between the Veteran's lumbar spine disability and his service-connected pes planus or that his lumbar spine disability is otherwise attributable to his service, in turn meaning the preponderance of the evidence is against this claim. Because the Veteran is a layman, he does not have the competence to give a probative opinion concerning the etiology of his lumbar spine disability or to say that his service-connected pes planus, hypertension, hearing loss, or tinnitus have caused or are aggravating his lumbar spine disability. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). This critical determination is beyond his lay competence because degenerative arthritis and DDD/IVDS are complex, not merely simple, medical conditions. The question of whether lay versus medical evidence is needed to substantiate a claim is a case-by-case determination and dependent on the type of condition being claimed in terms of whether medically complex versus simple. See Kahana v. Shinseki, 24 Vet. App. 428 (2011). Thus, the July 2021 VA examiner's opinion against this claim is more probative and, in fact, determinative of the ultimate disposition. See King v. Shinseki, 700 F.3d 1339, 1345 (Fed. Cir. 2012) (indicating lay evidence must demonstrate some competence and affirming the Court's conclusion that the Board did not improperly discount the weight of a lay opinion in finding a medical expert's opinion more probative on the issue of medical causation). Consequently, the Board gives more probative weight to the July 2021 VA examiner's opinion and other the medical evidence of record showing an onset of chronic lumbar spine pain owing to the 2002 MVA rather than to anything that occurred during the Veteran's time in the military or owing to any of his service-connected disabilities, especially his pes planus and claim of compromised gait. As such, service connection for a lumbar spine disability on a direct, presumptive, or secondary basis is not warranted. TDIU 2. Entitlement to a TDIU The Board previously found that this issue of entitlement to a TDIU was raised by the record when the Veteran submitted a May 2012 income statement indicating that he had last worked in 2010 and attributed it, in part, to his service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). To date, however, the Veteran has not submitted an official TDIU Application (VA Form 21-8940). The duty to assist is not a one-way street. If he wishes help in fully developing this claim, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Moreover, it is his responsibility to present and support a claim for benefits. See 38 U.S.C. § 5107(a); Fagan v. Shinseki, 573 F.3d 1282, 1287 (Fed. Cir. 2009). Despite requests that he submit the TDIU application (VA Form 21-8940), the Veteran has not returned the form or otherwise provided the requested information, which, according to current protocol, is reason enough alone to deny this claim. On June 17, 2013, VA released a Fast Letter that is binding on the RO but not the Board. The stated purpose of which was to revise and clarify VA procedures relating to claims for a TDIU. The changes noted included the following: VA will require the claimant complete and submit a TDIU application (VA Form 21-8940) to substantiate the claim for this benefit; VA will administratively deny TDIU claims if VA requests, but the Veteran does not submit, required forms or evidence. Under the heading "Requirement for VA Forms 21-8940 and 21-4192," the following was stated: "[i]f a claim for TDIU has been expressly or reasonably raised by the evidence of record, but a current VA Form 21-8940 [so TDIU application] is not on file, provide it to the Veteran for completion. Before VA will consider a claim for IU the Veteran must complete a VA Form 21-8940, and the Veteran with multiple service-connected disabilities must specify one or more service-connected disabilities that he or she believes cause the unemployability. It was instructed that, if the Veteran fails to complete and return the VA Form 21-8940, the claim would be denied." Guidance concerning that June 17, 2013, VA Fast Letter indicates that a substantially complete VA Form 21-8940 (TDIU application) is required to establish entitlement to a TDIU because it gathers relevant and indispensable information regarding a claimant's disabilities and employment and educational histories. The form concludes with a series of sworn certification statements, and in endorsing it a Veteran both attests to his/her employment status and signals understanding of the TDIU benefit's incompatibility with substantially gainful work. A properly signed and executed VA Form 21-8940 enables VA to gather the information necessary to determine the Veteran's entitlement to a TDIU and recover TDIU compensation that is later discovered to have been awarded on fraudulent terms. VA will grant a TDIU when the evidence shows the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience by reason of his service-connected disabilities. Neither the Veteran's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that a Veteran is unable to obtain or follow a substantially gainful occupation as a result of service connected disabilities and has a single service-connected disability ratable at 60 percent or more, or two or more service-connected disabilities when one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability or disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities will be considered as one disability: (1) disabilities of one or both upper extremities, or of 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. See 38 C.F.R. § 4.16(a). Throughout the period on appeal, the Veteran's service-connected disabilities do not have sufficient ratings to meet the § 4.16(a) schedular criteria for a TDIU. He has been in receipt of service connection for pes planus, rated as 30-percent disabling; tinnitus, rated as 10-percent disabling; and hypertension and bilateral hearing loss, each rated as 0-percent disabling (noncompensable). This is a combined rating of 40 percent for the entire period on appeal with no single disability rated as 40 percent or higher. Hence, he does not have sufficient ratings for these service-connected disabilities to qualify for a TDIU on a schedular basis, meaning according to § 4.16(a). However, even if, as here, a Veteran fails to meet the applicable percentage standards set forth in § 4.16(a), the Board should consider whether to refer the claim to the Director of the Compensation Service for extra-schedular TDIU consideration under the special provisions of § 4.16(b). But, at most, the Board can consider whether this referral is warranted, not instead grant a TDIU on an extra-schedular basis in the first instance. See Barringer v. Peake, 22 Vet. App. 242 (2008). "Substantially gainful employment" is employment "that 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 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 mere fact that a veteran is unemployed or has difficulty obtaining employment is not enough since a disability rating, itself, is recognition that there is impairment of earning capacity. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). On March 14, 2019, so during the pendency of this appeal, the Veterans Court (CAVC) issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that "substantially gainful employment," in the TDIU context, contains economic and noneconomic components; the economic component means "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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The CAVC also provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities Here, though, the evidence of record does not tend to show that the Veteran's service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment to, in turn, warrant referring this claim to the Director of the Compensation Service for extra-schedular consideration under the special provisions of § 4.16(b). A May 2011 x-ray report shows that complete x-rays of both feet in weightbearing and non-weightbearing were normal, meaning there was no showing of pes planus upon x-ray examination. Upon examination in May 2011, the Veteran reported that the functional loss from his feet prevents him from standing for long periods or he has to walk on the outsides of his feet, and he has sharp pain in his feet while driving. He stated that his hypertension affects his ability to focus and that his hearing loss and tinnitus impact his ability to communicate and concentrate. On a May 2012 VA Income Net Worth and Employment Statement, the Veteran indicated that he had last worked in 2010 and prior to that had worked as a security guard and a bodyguard. He indicated that he was having problems with his feet, hearing, lower back, and hip pain. On his November 2012 VA Form 21-2680, Examination for Housebound Status or Permanent Need for Regular Aid and Attendance (a separate claim that since has been denied), the Veteran stated that he required a cane to walk due to back and lower extremity pain. He further stated that his depression had significant impact on his day-to-day life. But no spinal or psychiatric disability has been determined to be attributable to his military service (i.e., service connected). Additionally, the Veteran is in receipt of Social Security Administration (SSA) benefits. A review of the record shows that, in November 2012, he was found to be disabled for SSA purposes due to the DDD of his lumbar spine, a substance abuse disorder, an adjustment disorder, and an anxiety disorder. But, to reiterate, these are not adjudicated service-connected disabilities so irrespective of any relevance of SSA disability determinations to VA disability determinations. Martin v. Brown, 4 Vet. App. 136, 140 (1993) (while a SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a Veteran's claim); see also Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). A July 2013 VA treatment record states the Veteran was unemployable at that time owing to severe major depression that would make it difficult to function in a work-like setting. His major depression is not a service-connected disability. A September 2017 VA treatment record shows the Veteran reported that pain prevented him from working, however, the record does not specify if his pain was due to a service-connected disability or, instead, non-service connected disabilities. The Veteran underwent a VA hypertension examination in October 2019 at which time the examiner found that the Veteran's hypertension had no functional impact on his ability to work. At an October 2019 VA foot examination, the examiner found that the Veteran's pes planus has some functional impact on his ability to work in that long periods of standing result in foot pain. The Veteran reported that he was unable to work due to inability to walk in a straight line or stand, and he also reported that he cannot drive due to foot pain. In November 2019, he had a VA audiology examination. The examiner found that the Veteran's hearing loss has no functional impact on his ability to work, however, his tinnitus causes functional impact in that "people cannot whisper in [his] ear or talk directly into [his] ear." He further reported that he cannot sit directly in front of a television or radio and that, when the ringing starts, he must sit down and wait for it to stop. In VA audiology examinations, the audiologist must describe the functional effects caused by a hearing loss disability in the final report. See Martinak v. Nicholson, 21 Vet. App. 447, 455-456 (2007). In this regard, the Veteran has stated that he has difficulty hearing conversations (also because of his tinnitus) and cannot hear clearly. But these complaints are symptoms of hearing loss and tinnitus and contemplated by the schedular rating criteria. Indeed, he already has the maximum permissible schedular rating for tinnitus. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), citing 38 C.F.R. § 4.87, Diagnostic Code (DC) 6260. Consider also that a panel decision issued in December 2017 by the higher Veterans Court (CAVC) affirmed a December 2015 Board decision that had denied a compensable schedular rating for bilateral hearing loss, as well as referral for a rating based on extra-schedular consideration under 38 C.F.R. § 3.321(b)(1). See Rossy v. Shulkin, 29 Vet. App. 142 (2017). That appeal to the Court was filed after the Court had decided Doucette v. Shulkin, 28 Vet. App. 366 (2017), which had affirmed a Board decision denying extra-schedular referral when the only functional effects alleged were aspects of hearing loss. The Court concluded that Doucette directed the outcome of the appeal in Rossy, as well. In Doucette, the Court addressed how to conduct an extra-schedular analysis, specifically, the first Thun inquiry in the contest of a hearing loss claim. The Court held that the rating criteria for §§ 4.85 and 4.86 contemplate, and thus compensate for, the functional effects of hearing loss, namely, difficulty understanding speech and the inability to hear sounds in various contexts. While leaving open the possibility that extra-schedular consideration for hearing loss might be warranted by other symptoms or functional effects associated with that disability, the Court further held that extra-schedular referral is not reasonably raised when complaints of difficulty hearing are the only complaints of record. The Court saw no basis to distinguish that appeal from Doucette; as in this case, the only hearing loss problem alleged by the Veteran is difficulty understanding conversations, particularly in noisy or crowded circumstances (i.e., with background noise). Absent other factors, the Court found that this sort of complaint is squarely within the type of symptoms and functional effects contemplated and compensated by VA's schedular rating criteria. The Court found that the Appellant had failed to demonstrate any error regarding his bilateral hearing loss. The Court affirmed the Board's decision. Recognizing all of this, the threshold element for extra-schedular consideration is not met and any further consideration of governing norms or referral to the appropriate VA officials for extra-schedular consideration is unnecessary. See Thun v. Peake, 22 Vet. App. 111 (2008). That is, when considering the collective body of evidence, the Board finds that the Veteran's symptoms attributed to his pes planus, hypertension, hearing loss, and tinnitus are contemplated by his current ratings for each disability. Generally, the degrees of disabilities specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 C.F.R. §§ 4.1, 4.15. A TDIU requires more occupational impairment than that, even if not total occupational impairment. See Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001) (explaining that use of the term "substantially" is intended to impart flexibility into the determination). The Court clarified in Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993), that the disability rating, itself, is recognition that industrial capabilities are impaired. So, above and beyond this, the record must reflect some factor that takes a particular case outside the norm for a claim for a TDIU to prevail. As the Court further explained in Van Hoose, the mere fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether he can perform the physical and mental acts required by employment, not whether he can find employment. Here, as discussed, VA examinations, VA treatment records, and the Veteran's SSA records, along with his personal written statements and hearing testimony, do not show a functional impact on employment owing to his service-connected disabilities above and beyond what is contemplated by the ratings he has for these disabilities. Consequently, the Board finds that the preponderance of the evidence weighs against granting a TDIU or for referring this claim to the Director of the Compensation Service for consideration of this entitlement on an extra-schedular basis under § 4.16(b). See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner."). The Board emphasizes that this determination has been reached without consideration of the Veteran's nonservice-connected disabilities since they cannot factor into his claim of unemployability. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Accordingly, as the preponderance of the evidence is against this claim, the benefit of the doubt rule does not apply. Therefore, entitlement to a TDIU, including on an extra-schedular basis, is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Pak 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.