Citation Nr: 21064020 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-36 324A DATE: October 18, 2021 ORDER Entitlement to service connection for residuals of mycobacterium tuberculosis is denied. Entitlement to an increased initial rating in excess of 30 percent for tension headaches is denied. Entitlement to an initial rating in excess of 10 percent prior to November 5, 2020, and in excess of 30 percent thereafter for cervical spine intervertebral disc syndrome (IVDS) is denied. Entitlement to an initial rating in excess of 20 percent prior to November 5, 2020, and in excess of 40 percent thereafter for lumbar spine intervertebral disc syndrome (IVDS) is denied. Entitlement to an initial compensable rating for residuals scars status post lumbar spine surgery is denied. FINDINGS OF FACT 1. The preponderance of the evidence of record is against finding that the Veteran has had residuals of mycobacterium tuberculosis at any time during or approximate to the pendency of the claim. 2. During the appeal period, the Veteran experienced migraines with characteristic prostrating attacks occurring on average once a month over the last several months. His migraines did not manifest in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 3. The Veteran's cervical spine IVDS is manifest by forward flexion of 15 degrees and a total range of motion of 100 degrees at its worst. 4. The Veteran's lumbar spine IVDS is manifest by forward flexion of 30 degrees and a total range of motion of 55 degrees at its worst. 5. The Veteran's scars, post lumbar spine surgery, are neither unstable nor painful. CONCLUSIONS OF LAW 1. The criteria for service connection for residuals of mycobacterium tuberculosis are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a disability rating in excess of 30 percent for migraines have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8100. 3. The criteria for a rating in excess of 10 percent prior to November 5, 2020, and in excess of 30 percent thereafter for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 4. The criteria for a rating in excess of 20 percent prior to November 5, 2020, and in excess of 40 percent thereafter for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 5. The criteria for a compensable disability rating for scars, post lumbar spine surgery, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from April 1987 until his honorable discharge in October 2011. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2012 rating decision of the Regional Office of the Department of Veterans Affairs (VA). After requesting additional time, the Veteran filed an untimely Substantive Appeal in response to the May 2017 Statement of the Case (SOC). Nevertheless, there is no indication that the Regional Office closed the case for failure to file a timely substantive appeal because the Regional Office certified the case to the Board in December 2018. See Percy v. Shinseki, 23 Vet. App. 37, 42-45 (2009). In February 2020, the Board remanded the case to the Regional Office for further development. Specifically, the Board directed the Regional Office to obtain private and VA treatment records as well as relevant VA examinations. Service Connection VA provides compensation for a disability resulting from disease or injury incurred in or aggravated by service. This is referred to as a "service connection." 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service the so-called "nexus" requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Furthermore, in deciding whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (2014); 38 C.F.R. § 3.102 (2018); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the benefit of the doubt will be given to the Veteran. Id. 1. Entitlement to service connection for residuals of mycobacterium tuberculosis. The Veteran asserts that he has permanent scarring of his left lung due to a tuberculosis infection during service. Unfortunately, there is no current diagnosed residuals from mycobacterium tuberculosis of record. Without a current disability the Veteran is not entitled to service connection. The Board empathizes with the Veteran and the hardship he faced during service; however, there is no current medical diagnosis for which service connection can be granted. During numerous VA treatment appointments, he is noted to have "clear breath sounds to auscultation, no rales, wheezes or rhonci." See May 2012 VA Treatment Records. A later January 2017 record notes that the chest has a "normal configuration" and that he is "not using accessory muscles," there is "no dullness on percussion," and the lungs are "clear" with "no rales, ronchi, or rubs." See VA Treatment Records. He was consistently "negative for cough, sputum, wheezing, chest pain, dyspnea, dyspnea with exertion, palpitations." See June 2018 VA Treatment Record. The October 2011 VA examiner noted the Veteran's concerns about shortness of breath, however, the examiner concluded that there were no residuals from his TB diagnosis in service. The examiner stated, "Normal gross inspection of the chest and lungs. There is no evidence of tenderness on palpation. Breath sounds are symmetric. No rhonchi, rales, or wheezes[.] Expiratory phase is within normal limits. TB has not caused structural damage to the lungs." Furthermore, his chest x-ray was within normal limits. As there is no current disability, the claim for residuals of mycobacterium tuberculosis is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). INCREASED RATING Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). In addition, when VA evaluates musculoskeletal disabilities under the Rating Schedule, it must determine whether or not the factors listed in 38 C.F.R. §§ 4.40, 4.45, and 4.59 are properly accounted for within the applicable DC criteria. Under section 4.40, VA must consider whether there is evidence of functional loss due to pain on movement and diminished excursion, strength, speed, coordination, and endurance, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.40; Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2001). Pain on movement, standing alone, is not sufficient to warrant a higher rating under section 4.40. Id. (reaffirming that pain must affect some aspect of "the normal working movements of the body... in order to constitute functional loss"). Section 4.45 expands upon the concept of functional loss, noting six factors that VA must consider when evaluating a disability, namely: (1) less or (2) more movement than is normal; (3) weakened movement; (4) excess fatigability; (5) incoordination; and (6) pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing, to include during flare-ups or after repetitive use. 38 C.F.R. § 4.45. Noticeably, the aspects of functional loss listed in section 4.40 closely parallel the factors listed in section 4.45. Section 4.45 applies to muscles, nerves, as well as the entire musculoskeletal system. DeLuca v. Brown, 8 Vet. App. 202, 207 (1995). Under section 4.59, a veteran may be awarded the minimum compensable evaluation available under a given musculoskeletal DC, even if application of that DC would not support a compensable evaluation, where there is evidence of "actually painful, unstable, or malaligned joints." 38 C.F.R. § 4.59; Petitti v. McDonald, 27 Vet. App. 415, 427 (2015). Section 4.59 does not require medical evidence; it may be satisfied with lay and other non-medical evidence. Id. at 428. Thus, pain alone is compensable under section 4.59 for joint disabilities in general. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). 1. Entitlement to an increased initial rating in excess of 30 percent for tension headaches. The Veteran asserts that he is entitled to a higher rating for his tension headaches. He first applied for service connection for tension headaches in August 2011, which was granted in a September 2012 rating decision with a 30 percent rating. He appealed and the Regional Office processed the appeal as timely. Tension or migraine headaches can be found in 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating states in relevant part as follows: "With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability 50 [percent, and] With characteristic prostrating attacks occurring on an average once a month over last several months 30 [percent.]" Over the period on appeal, he had three VA examinations, one in October 2011, another in May 2017, and the last in November 2020. While he was diagnosed with tension headaches in the October 2011 VA examination, there was no discussion of frequency or severity. The Veteran was awarded a 30 percent rating due to the following findings: "On exam, you state you experience headaches on the average as often as four times a day with each occurrence lasting for two hours and functional impairment: all activities are limited until headaches subsides; the ability to perform daily functions during flare-up you must rest. The treatment is Fioricet and Aspirin." The May 2017 VA examination found that the Veteran did not have characteristic prostrating attacks, but that he did experience pain. He described his headaches as "bi-temporal and bi-frontal" and as "bend around the head." Whereas the November 2020 VA examination found that he had less frequent characteristic prostrating attacks and head pain for less than a day. This examination also found that his headaches caused a functional impact because he had difficulty concentrating and finishing tasks during episodes. There is no medical or probative lay evidence of record establishing that he has very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Although the Veteran challenged the adequacy of the May 2017 VA examination in his Form 9, there is no additional evidence that he had frequent prolonged attacks. He has not raised any issues with the November 2020 examination which found he had "less frequent" attacks and he was working for at least part of the period on appeal. See VA Treatment Records. As such, he is not entitled to the next highest rating of 50 percent and his claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to an initial rating in excess of 10 percent prior to November 5, 2020, and in excess of 30 percent thereafter for cervical spine intervertebral disc syndrome (IVDS). The Veteran asserts that his cervical spine disability rating should be increased. He applied for service connection in August 2011; his claim was granted, and he was awarded a ten percent rating in September 2012. He appealed and his rating was then increased in November 2020 to 30 percent effective November 5, 2020. Separate ratings may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). As such, the period on appeal is from the date VA received his claim, August 30, 2011, to the present. Cervical spine disabilities can be found in 38 C.F.R. § 4.71a, Diagnostic Code 5243. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. See § 4.71a. The Board will address each for the period on appeal below. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes IVDS can be found in 38 C.F.R. § 4.71a, Diagnostic Code 5243. The regulation states in relevant part: Intervertebral disc syndrome: With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months 20 [percent,] With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months 10 [percent]. 38 C.F.R. § 4.71a. The Veteran has had three VA examinations for the cervical spine, one in October 2011, another in May 2017, and the most recent in November 2020. There is no evidence of incapacitating episodes occurring during the period on appeal. A rating under the formula for rating IVDS would result in a noncompensable rating. Although the October 2011 examination noted that he had an incapacitating episode in November 2010, this is outside the period on appeal. General Rating Formula for Diseases and Injuries of the Spine The general rating formula for the spine, in relevant part, is as follows: Unfavorable ankylosis of the entire cervical spine ... 40 [percent,] Forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine 30 [percent,] ... forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, ... the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis [20 percent,] ... forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, ... combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height 10 [percent.] 38 C.F.R. § 4.71a. Although this regulation was updated in 2021, none of the updates are relevant to this claim. The October 2011 examiner found that the Veteran had a forward flexion of 40 degrees and total range of motion for the cervical spine of 220 degrees. There were no additional limitations due to repetitive use, pain, fatigue, weakness, lack of endurance, or incoordination. He was diagnosed with degenerative disc disease of the cervical spine. See May 2017 VA Examination. Range of motion was not provided as the examiner was unable to successfully conduct the testing due to possible "suboptimal effort" by the Veteran. The examiner concluded that the Veteran's "extremely limited [range of motion was] inconsistent with the known medical diagnosis." Id. The same was true for repetitive use testing as the examiner found "[Range of motion] on current exam is consistent with total Ankylosis that is not confirmed by current imaging studies." Id. In the November 2020 examination the Veteran had a passive forward flexion of 25 degrees and a total range of motion of 190 degrees. After repetitive use his forward flexion was 20 degrees, and his total range of motion was 160 degrees. Finally, pain and lack of endurance caused his forward flexion to decrease to 15 degrees and his total range of motion to 100 degrees. This placed the Veteran in the 30 percent rating criteria. "Ankylosis" is the "immobility and consolidation of a joint due to disease, in jury, or surgical procedure." Dorland's Illustrated Medical Dictionary 94 (33d ed. 2019). No medical evidence of record documented that the Veteran experienced favorable or unfavorable ankylosis of the entire cervical spine or entire spine during the appeal period. Nor does the evidence of record establish, or reasonably suggest, that the Veteran experienced the functional equivalent of ankylosis of the entire cervical spine or entire spine during the appeal period, favorable or unfavorable. See Chavis v. McDonough, 34 Vet. App. 1, 2021 U.S. App. Vet. Claims LEXIS 660, 25-34 (April 16, 2021). Thus, in absence of evidence establishing or approximating ankylosis of the entire thoracolumbar spine or entire spine, favorable or unfavorable, during the appeal period, a rating in excess of 30 percent is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. Entitlement to an initial rating in excess of 20 percent prior to November 5, 2020, and in excess of 40 percent thereafter for lumbar spine intervertebral disc syndrome (IVDS). The Veteran asserts that his lower back should have a higher rating. Lumbar spine disabilities can be found in 38 C.F.R. § 4.71a, Diagnostic Code 5243. Intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating. See § 4.71a. The Board will address each for the period on appeal below. Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes IVDS can be found in 38 C.F.R. § 4.71a, Diagnostic Code 5243. The regulation states in relevant part: Intervertebral disc syndrome: With incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months 20 [percent,] With incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months 10 [percent]. 38 C.F.R. § 4.71a. The Veteran has had three VA examinations for the lumbar spine, one in October 2011, the next in May 2017, and the most recent in November 2020. There is no evidence of incapacitating episodes occurring during the period on appeal. A rating under the formula for rating IVDS would result in a noncompensable rating. General Rating Formula for Diseases and Injuries of the Spine The general rating formula for the spine, in relevant part, is as follows: Unfavorable ankylosis of the entire thoracolumbar spine 50 [percent,] ... forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine 40 [percent,] Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, ... the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, ... muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis [20 percent.] 38 C.F.R. § 4.71a. Although this regulation was updated in 2021, none of the updates are relevant to this claim. He was diagnosed with degenerative disc disease of the lumbar spine in the May 2017 VA examination. The November 2011 VA examiner found that he had forward flexion of 45 degrees and a total range of motion of 140 degrees for the thoracolumbar spine. Pain decreased forward flexion to 40 degrees and the total range of motion to 100 degrees. This puts the Veteran in the 20 percent rating criteria. The May 2017 VA examiner again noted suboptimal effort by the Veteran and concluded that the severe ankylosis like symptoms on examination were not reliable as they were not consistent with the current imaging studies available at that time. In other words, the imaging studies for his back did not show a disability that would cause severe ankylosis. The most recent VA examination in November 2020 showed an initial forward flexion of 45 degrees and a total range of motion of 120 degrees. Forward flexion decreased to 40 degrees and total range of motion decreased to 115 after repetitive use testing. Pain and lack of endurance caused further decrease after repeated use over time with a forward flexion of 35 degrees and a total range of motion of 95 degrees. Finally, flare-ups caused a decrease in forward flexion to 30 degrees and in total range of motion to 55 degrees. Muscle spasms were present but did not cause an abnormal gait or spinal contour. Ankylosis was not present, nor were neurological abnormalities. This places the Veteran within the 40 percent rating criteria. No medical evidence of record documented that the Veteran experienced favorable or unfavorable ankylosis of the entire thoracolumbar spine or entire spine during the appeal period. Nor does the evidence of record establish, or reasonably suggest, that the Veteran experienced the functional equivalent of ankylosis of the entire thoracolumbar spine or entire spine during the appeal period, favorable or unfavorable. See Chavis v. McDonough, 34 Vet. App. 1, 2021 U.S. App. Vet. Claims LEXIS 660, 25-34 (April 16, 2021). Thus, in absence of evidence establishing or approximating ankylosis of the entire thoracolumbar spine or entire spine, favorable or unfavorable, during the appeal period, a rating in excess of 40 percent is not warranted. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 5. Entitlement to an initial compensable rating for residuals scars status post lumbar spine surgery. The Veteran asserts that he has five painful scars. See Notice of Disagreement. The Veteran first applied for service connection in August 2011, which was granted in September 2012. He then appealed. As such the period on appeal is from the date his claim was received by VA, August 30, 2011, to the present. VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. That diagnostic code requires consideration as to whether the scar is unstable or painful. See 38 C.F.R. § 4.118. The relevant criteria are as follows, one or two unstable or painful scars for a 10 percent rating. There are two notes to diagnostic code 7804, "Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar" and "Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars." See 38 C.F.R. § 4.118. The first examiner found that there were three scars related to the Veteran's lumbar spine surgery, the first was 11 by .2 centimeters, the second was 6 by .2 centimeters, and the third was 3 by .1 centimeters. The examiner concluded that the scars were not painful; did not have skin breakdown; were superficial with no underlying tissue damage; did not have inflammation, edema, nor keloid formation; and were not disfiguring. The scars also did not limit motion or cause a functional impact. The Veteran then appealed asserting that there were five painful scars as a result of his surgery. See Notice of Disagreement. The next VA examination in May 2017 found that there were four scars from the surgery and that they were 12, 6, 5, and 3 centimeters in length with widths of 0.3 centimeters. The examiner concluded that they were all linear, well-healed, non-tender, and stable. The final examination in November 2020 also found four scars related to the surgery that were 12, 7, 7, and 4 centimeters in length with widths of .25 centimeters. No underlying tissue damage was present. The scars were found to have no functional impact and were not painful according to the examiner. As there is no medical evidence of record establishing that the scars are unstable or painful, the claim is denied. The Board acknowledges that the Veteran believes the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Veteran's inconsistent statements included within the Veteran's hearing testimony, VA treatment records, and VA examinations compel the Board to find that the Veteran's more recent statement as to painful scars are not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-511 (1995) (Board must evaluate credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). The Board finds that his statements are not credible because he asserts that he has five painful scars, however, all of the VA examiners found that there was no pain on palpation and that his scars were well healed. His VA treatment records do not refer to painful scars or treatment for such a disability. The inconsistencies noted above, compel a conclusion that the Veteran is not an accurate historian as to these particular statements. See Caluza, 7 Vet. App. at 510-11. Therefore, the Board cannot assign them probative weight. Id. As such, his claim is denied. In reaching this decision, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Johnston, 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.