Citation Nr: 21063610 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 18-15 231 DATE: October 14, 2021 ORDER The appeal to reopen a claim of entitlement to service connection for a cervical spine disability based on the receipt of new and material evidence is granted. REMANDED Entitlement to service connection for a cervical spine disability is remanded. Entitlement to service connection for a gastrointestinal disability, to include irritable bowel syndrome, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety, adjustment disorder, major depressive disorder, and posttraumatic stress disorder (PTSD), is remanded. Entitlement to service connection for anemia is remanded. Entitlement to a disability evaluation in excess of 10 percent for patellofemoral pain syndrome of the left knee is remanded. Entitlement to a disability evaluation in excess of 10 percent for patellofemoral pain syndrome of the right knee is remanded. Entitlement to increased disability evaluations for asthma, rated as noncompensable prior to April 8, 2016, and as 10 percent disabling since April 8, 2016, is remanded. Entitlement to an effective date prior to May 12, 2014, for the grant of service connection for asthma. FINDINGS OF FACT 1. The claim of entitlement to service connection for a cervical spine disability was originally denied in a December 1991 Rating Decision; no material evidence was received within one year of the decision and the Veteran did not appeal the decision, which became final. 2. Subsequent to the December 1991 final decision, new and material evidence was received to reopen the previously denied claim of entitlement to service connection for a cervical spine disability. CONCLUSIONS OF LAW 1. The December 1991 Rating Decision which denied the Veteran's claim of entitlement to service connection for a cervical spine disability is final. 38. C.F.R. §§ 3.104, 20.302, 20.1103. 2. The criteria to reopen the previously denied claim of entitlement to service connection for a cervical spine disability have been met. 38 U.S.C. § 5108; 38 C.F.R. §§ 3.156(a), 3.159. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1987 to September 1991. These matters come before the Board of Veterans Appeals (Board) on appeal from May 2013 and April 2015 Rating Decision of a Department of Veterans' Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board virtual hearing in May 2021. A transcript of that hearing has been associated with the claims file. The Board notes that the Veteran's March 2018 VA Form 9 also appealed the issue of entitlement to service connection for degenerative arthritis of the thoracolumbar spine. However, in an April 2018 Rating Decision, the RO granted entitlement to service connection for degenerative arthritis of the thoracolumbar spine. As such, this issue is no longer before the Board. The Board also notes that the record was held open for an additional 90 days following the May 2021 Board virtual hearing in order to allow the Veteran to submit additional medical evidence in support of her claims. Additionally, in correspondence dated on June 25, 2021, the Veteran's attorney requested a further 30-day extension to submit medical evidence in support of the Veteran's claims. Those initial 90 days expired on August 12, 2021, while the additional 30 days expired on September 11, 2021. As such, the Board finds that promulgating a decision at this time is appropriate, despite the Veteran not having submitted additional evidence. The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2014); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. § §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). Here, neither the Veteran nor her attorney have raised any issues with regard to the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381(Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran seeks to reopen a previously denied claim of entitlement to service connection for cervical spine disability. The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. In this regard, the Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). Generally, a claim which has been denied in an unappealed Board decision or an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, then the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what new and material evidence is, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Here, with respect to his claim of entitlement to service connection for a cervical spine disability, the Veteran initially filed a claim of entitlement to service connection in September 1991. In a December 1991 Rating Decision, the RO denied the claim on the basis that the Veteran gave no history of injury and service treatment records were negative for neck problems. The Veteran was notified of this decision in December 1991. Although the Veteran submitted a Notice of Disagreement in November 1992, she did not appeal the issue of entitlement to service connection for a cervical spine disability, nor was new and material evidence received during the appeal period. Thus the decision became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103. Subsequent to the December 1991 final decision, the Veteran was provided with a VA Neck (Cervical Spine) Conditions examination in April 2013, at which time she was diagnosed as having degenerative joint disease of the cervical spine and the Veteran reported that she initially injured her neck in 1989 while attempting to do sit-ups during physical training. Additionally, the Veteran testified at her May 2021 Board virtual hearing that she injured her neck during an episiotomy performed in service in September 1989, and that she experienced neck symptomatology continuously since that time. She further testified that her neck symptoms were a "continuum" of her service-connected low back symptoms, suggesting a theory of secondary service connection. The Board notes that the Veteran is competent to describe an accident and any symptoms related to an injury. Indeed, a veteran is competent to report symptoms that he or she experiences at any time because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465, 470 (1994); see also Barr v. Nicholson, 21 Vet. App. 303, 309 (2007) (when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disability is not a determination "medical in nature" and is capable of lay observation). In this regard, the Veteran has been found credible by the Board regarding her complaints of cervical spine symptomatology during and following service. Thus, due consideration should be given to the lay testimony provided by the Veteran regarding the origin and progression of her cervical spine condition. As this evidence is clearly new and material to the basis for the prior final denial, the claim of entitlement to service connection for a cervical spine disability may now be reopened on that basis and reviewed on the merits de novo. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS FOR REMAND The Veteran seeks entitlement to service connection for a cervical spine disability, a gastrointestinal disability, an acquired psychiatric disorder, anemia, as well as entitlement to increased disability evaluations for patellofemoral pain syndrome of the left knee, patellofemoral pain syndrome of the right knee, and asthma. Unfortunately, the Board finds that additional development must be undertaken before these claims can be adjudicated on the merits. With respect to all claims, the Board notes that VA treatment records were most recently associated with the claims file in October 2018, over three years ago. At her May 2021 Board virtual hearing, the Veteran testified that she received ongoing treatment through the Atlanta VA Health Care System in Atlanta, Georgia, and received treatment from a physician at the VA Women's Wellness Clinic as recently as April 2021. VA treatment records, even if not in the claims file, are nevertheless considered part of the record on appeal because they are within VA's constructive possession. See 38 U.S.C. § 5103A (b); Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that VA adjudicators are deemed to have constructive notice of VA treatment records). Here, as there is evidence of outstanding VA treatment records relevant to the claims addressed herein which have not yet been associated with the claims file, the Board finds that the RO must associate with the record any and all outstanding VA treatment records dated from September 2018 to the present from the Atlanta VA Health Care System. Entitlement to service connection for a cervical spine disability With respect to the claim of entitlement to service connection for a cervical spine disability, the Veteran testified that she injured her neck during an episiotomy performed in service in September 1989, and that she experienced neck symptomatology continuously since that time. At the time of her April 2013 VA Neck (Cervical Spine) Conditions examination, she reported that she initially injured her neck in 1989 while attempting to do sit-ups during physical training. The Veteran further testified at her May 2021 hearing that her neck symptoms were a "continuum" of her service-connected low back symptoms, suggesting a theory of secondary service connection. At the time of her April 2013 VA Neck (Cervical Spine) Conditions examination, the Veteran was diagnosed as having degenerative joint disease of the cervical spine, with the "date of diagnosis" listed as 1989. However, the VA examiner then opined that the diagnosed degenerative joint disease of the cervical spine was less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the examiner explained that, "After reviewing medical records dated 11/24/92, 11/13/91, 8/1/91 and performing physical exam, it is less likely as not that the veteran's backs condition are service connected as there are no medical records showing diagnosis, treatment for the neck and/or back condition or any related spine condition while she is on active duty. Record dated 11/13/91 showing muscle strain of the neck and back however it was after her active duty." The RO subsequently found that the April 2013 VA opinion was inadequate because it stated the Veteran did not have any in-service injury, event, or treatment for spine symptomatology, although the Veteran was treated for mechanical low back pain in September 1990. Specifically, in September 1990, the Veteran sought treatment for pain in the mid back following a history of trauma / overexertion one week prior, manifested by lower thoracic and lower lumbar paraspinal tenderness, which was diagnosed as mechanical low back pain. As such, a new VA examination was conducted in April 2018, at which time the VA examiner opined that the Veteran's claimed degenerative joint disease/degenerative disc disease was at least as likely as not incurred in or caused by the mechanical low back pain documented in her service treatment records. Based on this finding, the Veteran was awarded entitlement to service connection for degenerative arthritis of the thoracolumbar spine in an April 2018 Rating Decision. However, the April 2018 VA opinion did not address the Veteran's cervical spine claim. In light of the Veteran's testimony that her neck symptoms were a "continuum" of her service-connected low back symptoms, the Board finds that another VA examination should be obtained to determine the likelihood that the Veteran's diagnosed degenerative joint disease of the cervical spine was related to the September 1990 trauma / overexertion incident which caused her service-connected degenerative arthritis of the thoracolumbar spine, as well as the likelihood that her diagnosed degenerative joint disease of the cervical spine was caused or aggravated by her service-connected degenerative arthritis of the thoracolumbar spine. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (once VA undertakes the effort to provide an examination, it must provide an adequate one); see also El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (indicating that findings of "not caused by," and "not related to" a service-connected disability are insufficient to address the question of aggravation under 38 C.F.R. § 3.310(b)). Entitlement to service connection for irritable bowel syndrome and anemia With respect to the claims of entitlement to service connection for irritable bowel syndrome and anemia, the Veteran testified that these disabilities first manifested in service as a result of her diet and environmental exposures, and that they were manifested by bloating. A review of the Veteran's service treatment records confirms that she sought treatment in August 1991 for excessive abdominal bloating as well as sharp pain in her right lower quadrant. Treatment records from Kaiser Permanente confirm that the Veteran was diagnosed as having anemia and an iron deficiency, and the Veteran testified at her Board hearing that she still takes iron supplements for her blood deficiency. The Veteran was provided with a VA Intestinal Conditions examination in February 2015, at which time she was diagnosed as having irritable bowel syndrome manifested by bloating, crampy abdominal pain, constipation, and occasional diarrhea. However, in a March 2015 addendum opinion, the VA examiner opined that the Veteran's irritable bowel syndrome was less likely than not incurred in or caused by an in-service injury, event, or illness. In support of this conclusion, the VA examiner simply stated that, "Veteran's service records do not document a chronic on-going treatment or condition for IBS. She was retired on a MEB but no mention was made of IBS. She was seen briefly for bloating." The Board finds that this opinion is inadequate. See Barr, supra. First, the examiner failed to address the Veteran's credible reports of a continuity of gastrointestinal symptoms since service. Second, the examiner failed to explain how the treatment for bloating in service was unrelated to the Veteran's current diagnosis of irritable bowel syndrome manifested by bloating. As such, on remand, the Veteran should be provided with another VA examination which addresses these inadequacies. Additionally, an opinion should be obtained as to the likelihood that the anemia diagnosed in the Veteran's Kaiser Permanente treatment records had its onset in or is otherwise related to her period of active-duty service, to include the bloating and right lower quadrant pain documented in her service treatment records. Entitlement to service connection for an acquired psychiatric disorder With respect to the claim of entitlement to service connection for an acquired psychiatric disorder, the Veteran testified that she currently experiences psychiatric symptoms as a result of a traumatic in-service episiotomy she underwent in September 1989. Alternatively, the Veteran has asserted that she developed psychiatric symptomatology secondary to service-connected disabilities such as asthma. A review of the Veteran's service treatment records confirms that she underwent an episiotomy during childbirth in September 1989. Post-service treatment records confirm diagnoses of anxiety, adjustment disorder, and major depressive disorder. On remand, the Veteran should be provided with a VA examination to determine the likely etiologies of all diagnosed psychiatric disorders. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). Entitlement to increased disability evaluations for patellofemoral pain syndrome of the left knee, patellofemoral pain syndrome of the right knee and asthma With respect to the Veteran's claims of entitlement to increased disability evaluations for her service-connected patellofemoral pain syndrome of the left knee, patellofemoral pain syndrome of the right knee, and asthma, the Veteran was last provided with a VA Knee & Lower Leg Conditions examination in April 2013 (over eight years ago) and a VA Respiratory Conditions examination in September 2018 (over three years ago). At her May 2021 Board virtual hearing, the Veteran testified that the symptomatology associated with these disabilities had worsened since they were last examined. While the Board is not required to direct a new examination simply due to the passage of time, a new examination is appropriate when there is evidence that the disability in question has undergone an increase in severity since the time of the last examination. See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); see also Bolton v. Brown, 8 Vet. App. 185, 191 (1995); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995). As such, the Board finds that the matters must be remanded so that the Veteran can be provided with contemporaneous VA examinations to assess the current severity of her left knee, right ankle, and asthma disabilities. Entitlement to an earlier effective date for the grant of service connection for asthma Finally, the Veteran's April 2016 Notice of Disagreement and November 2019 VA Form 9 contested the May 12, 2014, effective date assigned to the RO's grant of entitlement to service connection for asthma. While the October 2018 Statement of the Case adjudicated the issue of entitlement to an increased disability evaluation for asthma, it did not appear to directly adjudicate the earlier effective date issue. To date, the RO has not issued a Statement of the Case addressing this issue. Consequently, the Board finds that a remand is required for this issue. See Manlicon v. West, 12 Vet. App. 238 (1999). The matters are REMANDED for the following action: 1. Obtain all outstanding VA treatment records dated from September 2018 to the present from the Atlanta VA Health Care System in Atlanta, Georgia, and all associated outpatient clinics. All attempts to obtain these records must be documented in the claims file. The Veteran and her attorney must be notified of any inability to obtain the requested documents. 2. Provide the Veteran with a VA examination to determine the probable etiology of her diagnosed degenerative joint disease of the cervical spine. The claims file must be made available to the examiner and the examiner must indicate that a review of the claims file was completed. Following a review of the claims file and an examination of the Veteran, the VA examiner is asked to opine as to the following: a. Is it at least as likely as not (50 percent probability or greater) that the diagnosed degenerative joint disease of the cervical spine was caused by or is otherwise related to her period of active-duty service, to include the September 1990 trauma/overexertion incident which caused her service-connected degenerative arthritis of the thoracolumbar spine? b. If not, is it at least as likely as not (50 percent probability or greater) that the diagnosed degenerative joint disease of the cervical spine was caused by her service-connected degenerative arthritis of the thoracolumbar spine? c. If not, is it at least as likely as not (50 percent probability or greater) that the diagnosed degenerative joint disease of the cervical spine was aggravated by her service-connected degenerative arthritis of the thoracolumbar spine? A complete rationale must be provided for the opinions offered. The examiner should note that a finding that a disability is "not due to," "not caused by," and "not related to" a service-connected disability is insufficient to address the question of aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). "Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, then the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. In providing these opinions, the examiner must consider and address the Veteran's various lay statements regarding continuity of cervical spine symptomatology since service. If there is a medical basis to support or doubt the Veteran's reports of symptomatology, then the examiner should provide a fully reasoned explanation. 3. Schedule the Veteran for a new VA examination with an appropriate examiner to assess the nature and etiology of her diagnosed irritable bowel syndrome and anemia. The claims file and a copy of this remand must be made available to the reviewing examiner, and the examiner should indicate in the report that the claims file was reviewed. The examiner is asked to provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed irritable bowel syndrome and anemia / iron deficiency were caused by, incurred in, or otherwise related to her period of active service from October 1987 to September 1991. Complete rationales must be provided for the opinions proffered. In rendering the requested rationales, the examiner must address the Veteran's in-service complaints of excessive abdominal bloating as well as sharp pain in her right lower quadrant in August 1991. In addition, the examiner is asked to address the diagnosis of anemia/iron deficiency from the Veteran's 2009 Kaiser Permanente treatment records. Moreover, the examiner must address the Veteran's various lay statements regarding continuity of symptomatology since service. Specifically, the Veteran testified at her May 2021 Board virtual hearing that she experienced intestinal symptoms such as bloating, gastritis, and constipation since service. If the examiner is unable to render any opinion without resorting to speculation or if the examiner finds the Veteran is not credible for any reason, then a complete explanation must be provided. In formulating these opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. 4. Schedule the Veteran for a VA examination with an appropriate examiner to determine the etiology of any psychiatric disorder. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. All pertinent symptomatology and findings must be reported in detail. The examiner must record all pertinent medical complaints, symptoms, and clinical findings, and must review the results of any testing prior to completion of the report. a. The examiner is asked to identify all psychiatric disorders found proximate to, or during, the pendency of the appeal, and to determine whether the Veteran meets the diagnostic criteria for PTSD under the Diagnostic and Statistical Manual of Mental Disorders (DSM-5). In doing so, the examiner should discuss the previous diagnoses of record, to include anxiety, adjustment disorder, and major depressive disorder. If the Veteran does not meet the diagnostic criteria for PTSD, then the examiner must detail which criteria were and were not met, and why. b. If the Veteran is found to have a PTSD diagnosis, then examiner should state whether the Veteran's claimed stressor (the September 1989 episiotomy and any related complications) is sufficient to have caused PTSD, and offer an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the claimed stressor caused the Veteran's PTSD. c. If a psychiatric disorder other than PTSD is identified proximate to, or during, the pendency of the appeal, then opine as to whether it is at least as likely as not (50 percent probability or greater) that it had its onset in active service, was caused or related to active service, or in the case of any diagnosed psychosis, whether it manifested within one year of the Veteran's separation from active service. d. If not, then the examiner is asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the diagnosed psychiatric disorder was caused by any of the Veteran's service-connected disabilities, to include asthma. e. If not, then the examiner is asked to opine as to whether it is at least as likely as not (50 percent probability or greater) that the diagnosed psychiatric disorder was aggravated by any of the Veteran's service-connected disabilities, to include asthma. A complete rationale must be provided for the opinions offered. The examiner should note that a finding that a disability is "not due to," "not caused by," and "not related to" a service-connected disability is insufficient to address the question of aggravation. See El Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). "Aggravation" means any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease, and not due to the natural progress of the nonservice-connected disease. If aggravation is found, then the examiner should attempt to quantify the extent of additional disability resulting from the aggravation. If the examiner is unable to render any opinion without resorting to speculation or if the examiner finds the Veteran is not credible for any reason, then a complete explanation must be provided. In formulating these opinions, the term "at least as likely as not" does not mean "within the realm of possibility." Rather, it means that the weight of the medical evidence both for and against the claim is so evenly divided that it is as medically sound to find in favor of the claim as it is to find against it. 5. Schedule the Veteran for a VA examination to determine the current nature and severity of all manifestations associated with her service-connected patellofemoral pain syndrome of the right knee and left knee. The Veteran's claims file, to include a copy of this Remand, should be made available to the examiner in conjunction with the examination. All medically-indicated tests should be accomplished. After a review of the evidence, to include VA treatment records, and with consideration of the Veteran's lay statements regarding her symptoms, the examiner should identify the extent of the Veteran's patellofemoral pain syndrome in accordance with VA rating criteria, to include all manifestations and functional impairment. A complete rationale should be provided for the opinions or conclusions expressed. 6. Schedule the Veteran for a VA examination to determine the current nature and severity of all manifestations associated with her service-connected asthma. The Veteran's claims file, to include a copy of this Remand, should be made available to the examiner in conjunction with the examination. All medically-indicated tests should be accomplished. After a review of the evidence, to include VA treatment records, and with consideration of the Veteran's lay statements regarding her symptoms, the examiner should identify the extent of the Veteran's asthma in accordance with VA rating criteria, to include all manifestations and functional impairment. A complete rationale should be provided for the opinions or conclusions expressed. (Continued on the next page) 7. Issue the Veteran and her attorney a Statement of the Case and notification of her appellate rights with respect to the issue of entitlement to an effective date for the grant of service connection for asthma. Inform the Veteran that to vest jurisdiction over this issue with the Board, a timely substantive appeal must be filed following the issuance of the Statement of the Case. If the Veteran perfects an appeal as to the claim, then it must be certified to the Board for appellate review. 8. Readjudicate the claims remaining on appeal considering the newly-submitted evidence added to the record. If any claim remains denied, then a Supplemental Statement of the Case must be provided to the Veteran and her attorney. After an adequate opportunity to respond has been provided, then the appeal must be returned to the Board for appellate review. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.