Citation Nr: 21064261 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 16-41 342 DATE: October 19, 2021 ORDER From May 12, 2014, an increased disability rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder is granted. From May 12, 2014, a total disability rating based on individual unemployability is granted. FINDINGS OF FACT 1. From May 12, 2014, the severity, frequency, and duration of the Veteran's mental health symptoms most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, and did not more closely approximate total occupational and social impairment. 2. From May 12, 2014, the Veteran's service-connected disabilities prevented him from being able to secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. From May 12, 2014, the criteria for a disability rating of 70 percent, but no higher, for posttraumatic stress disorder have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. From May 12, 2014, the criteria for a total disability rating based on individual unemployability have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.400, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from January 1967 until his honorable discharge in December 1968. This appeal is being treated expeditiously on the Board of Veterans' Appeals' (Board) docket pursuant to 38 U.S.C. §§ 5109B, 7112 and 38 C.F.R. § 20.902(d). This case comes before the Board on appeal from a December 2014 rating decision by the Portland, Oregon, Regional Office of the United States Department of Veterans Affairs (VA), which continued a 30 percent disability rating for the Veteran's service-connected posttraumatic stress disorder (PTSD). In May 2019, the Veteran testified at a Board hearing before a Veterans Law Judge. In an October 2019 decision, the Board denied an increased disability rating in excess of 30 percent prior to August 4, 2016, and granted an increased disability rating of 50 percent thereafter for the Veteran's service-connected PTSD. The Veteran subsequently appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). Based on a Joint Motion to Remand submitted by the parties, the Court entered an order in October 2020 vacating the Board's decision in full and remanding the matter to the Board for readjudication. The Veterans Law Judge who held the hearing in this case is no longer with the Board. Nevertheless, the Veteran's representative submitted an appellate brief following remand from the Court indicating that the Veteran did not wish to testify before the Board following the Court's remand. As such, the Board will proceed to adjudicate his claims on appeal. Evidentiary Standards In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. VA is required to give due consideration to all pertinent medical and lay evidence when rating disabilities. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 C.F.R. § 4.3. To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The law requires the Board address its reasons for rejecting evidence favorable to the Veteran. Timberlake v. Gober, 14 Vet. App. 122, 12829 (2000). The Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1381 (Fed. Cir. 2000). The analysis below focuses on the most salient and relevant evidence within the period on appeal and on what this evidence shows, or fails to show, on the claim. 1. From May 12, 2014, an increased disability rating of 70 percent, but no higher, for service-connected posttraumatic stress disorder is granted. Increased Ratings A claim for an increased rating is a new, distinct claim. See Suttman v. Brown, 5 Vet. App. 127, 136 (1993) (a claim for an increase is "based upon facts different from the prior claim"). An increased disability rating is generally assigned based on a showing that a service-connected disability has worsened. The Board is to consider each disability in relation to 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); 38 C.F.R. § 4.1. The Board must also determine if it is factually ascertainable that the disability worsened within one year preceding the filing of the claim because an earlier effective date for an increased disability rating may be warranted. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities 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. Diagnostic codes (DC) are assigned to individual disabilities. Diagnostic codes provide rating criteria specific to a particular disability. If two diagnostic codes are applicable to the same disability, the diagnostic code that allows for the higher disability rating applies. 38 C.F.R. § 4.7. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Id. Rating Criteria PTSD Under the General Formula for Mental Disorders (General Formula), 38 C.F.R. § 4.130, 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). The symptoms listed in the VA's general rating formula for mental disorders are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, which would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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, 11418 (Fed. Cir. 2013). The General Formula, 38 C.F.R. § 4.130, DC 9411, provides, in pertinent part, as follows: Rating (%) 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; memory loss for names of close relatives, own occupation, or own name. 100 Occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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); inability to establish and maintain effective relationships. 70 Occupational and social impairment with reduced reliability and productivity due to such symptoms 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; difficulty in establishing and maintaining effective work and social relationships. 50 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 conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 30 38 C.F.R. § 4.130, DC 9411 does provide for ratings lower than 30 percent. In this case, however, the Veteran is in receipt of a disability rating of 30 percent. Thus, an analysis of the ratings lower than 30 percent is unwarranted, absent legal and factual bases to issue a reduction in the Veteran's current rating. See 38 C.F.R. § 3.344. Considerations in rating a mental disorder include the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating must be based on all evidence of record that bears on occupational and social impairment rather than solely on an examiner's assessment of the level of disability at the moment of the examination. Id. Although the extent of social impairment is a consideration in determining the level of disability, the rating may not be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b). The United States Court of Appeals for the Federal Circuit held that evaluation under 38 C.F.R. § 4.130 is "symptom-driven," meaning that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Vazquez-Claudio, 713 F.3d at 11617. Analysis The Veteran filed a claim for an increased disability rating for his service-connected PTSD on May 12, 2014. He did not appear for his scheduled VA examination in October 2014, and the VA Regional Office denied his claim. Following a timely notice of disagreement, the Veteran was rescheduled for a VA examination, which occurred in August 2016. During the examination, the Veteran reported living alone, being single for a long period of time, and only seeing his neighbors and sister. He spent his time gardening. Due to his anxiety, he stopped hunting and going out in public. He quit working due to constant body pain. He reported difficulty sleeping, hypervigilance, fatigue, and sadness. The VA examiner endorsed clinical symptoms including intrusive memories, avoidance measures, exaggerated negative beliefs, detachment from others, hypervigilance, exaggerated startled response, depression, anxiety, suspiciousness, chronic sleep disturbances, and difficulty in establishing and maintaining effective work and social relationships. These symptoms lasted for more than one month. The examiner did not observe abnormal behavior, to include speech or thought. Overall, the examiner concluded the Veteran's symptoms caused clinically significant distress or impairment in social, occupational, or other important areas of functioning. Yet, the examiner opined that the Veteran's symptoms were "mild to moderate." The examiner stated that the Veteran "appears able to complete activities of daily living and maintaining a few relationships." During the Veteran's Board hearing, he testified that he had completely isolated himself from people. He only saw his sister on rare occasions, two to three times per year. His neighbor did most of his shopping for him because of his social isolation. He slept two hours per night on average because he had nightmares almost every night. This increased his stress and anxiety, further affecting his social isolation. He locked his doors to keep people from coming to his home because he would rather be by himself. He quit working around 2016 because his PTSD affected him to the point he could not be around people and his body hurt. He testified that he has not driven in 30 years, he did not attend VA organizations or public gatherings due to his social anxiety, but he went to the library once a week. Following remand of this case from the Court, the Veteran submitted a private vocational evaluation from a certified rehabilitation counselor dated July 27, 2021. During the evaluation, the Veteran reported increased anxiety for the majority of each day. He felt "on edge" around people. He was easily irritated and frustrated in social settings. His anxiety prevented him from concentrating for prolonged periods. He reported hypervigilance, checking locks repeatedly. He had a depressed mood, lack of motivation, and negligible energy to accomplish simple daily tasks. He experienced chronic sleep disturbances and daytime fatigue due to anxiety and nightmares. His neighbors drove him to appointments and he rarely used public transportation. Based on the evidence of record, the Board finds the Veteran's PTSD symptoms most closely approximated occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood as of May 12, 2014, the date the Veteran filed his claim for an increased rating. First, the Board acknowledges that within the parties' Joint Motion for Remand at the Court they stated that the Board did not consider whether the Veteran could establish relationships apart from maintaining his existing relationships (noting that the 70 percent rating criteria lists both "establishing" and "maintaining" relationships). The Board finds the evidence establishes that the Veteran's PTSD symptoms prevent him from establishing effective relationships apart from maintaining his existing relationships. From May 12, 2014, the Veteran's anxiety caused him to isolate himself from society. He avoided crowds, public transportation, quit work due to his anxiety, locked his doors to keep people away, and otherwise chose not to interact with people. While he maintained his existing relationship with his neighbor and his sister, that is not evidence of his ability to establish effective relationships. Particularly, he had a relationship with his neighbor for 20 years and his sister for his lifetime, which are relationships existing well-prior to his May 12, 2014, claim for an increased rating. Second, although there is an absence of suicidal ideations, abnormal speech or thought, and obsessional rituals which interfere with routine activities, the Veteran's chronic sleep disturbances affect his concentration, stress, anxiety, motivation, and energy to the point that they significantly affect his ability to complete simple daily activities. He quit his job due to his inability to cope with stressful circumstances, including interaction with the public. He repeatedly reported experiencing nightmares every night, receiving little sleep, feeling fatigued daily, which resulted in an inability to do daily tasks around his home resulting in more depression. Finally, his symptoms include significant irritability, more than that contemplated by the 30 percent or 50 percent rating criteria. While he did not report violent outbursts, his irritability contributed to his social isolation. He reported an inability to be around people, which increased his anxiety and made him feel "on edge." This, in turn, inhibited his ability to establish effective relationships because his symptoms caused him to avoid people. Overall, the Board finds the Veteran experienced symptoms in frequency, duration, and severity most closely approximating the 70 percent rating criteria. His constant efforts to avoid people were exacerbated by his severe and continuous anxiety, stress, depression, hypervigilance, and negative emotional state. His PTSD symptoms resulted in occupational and social impairment, with deficiencies in most areas, from May 12, 2014. The Board has considered whether the severity of Veteran's PTSD symptoms support the assignment of a 100 percent disability rating as of May 12, 2014, and finds they do not. While the Veteran's PTSD symptoms are severe, the evidence does not show that they result in total occupational and social impairment. The symptoms did not result in any gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives or his own name. The Veteran did not report experiencing these symptoms, or similar symptoms, nor did medical professionals or the private vocational examiner document such symptoms. While the evidence demonstrates that the Veteran's symptoms resulted in an intermittent inability to perform activities of daily living due to lack of motivation and fatigue, the Board finds this symptom is best captured by the 70 percent rating criteria as a deficiency not resulting total impairment. Finally, the Board has considered whether the Veteran's PTSD symptoms warrant an increased rating for the year preceding May 12, 2014. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). The Board finds a lack of evidence relating to the Veteran's symptoms for the year preceding his May 12, 2014, claim for an increased rating. Therefore, an increased rating for the Veteran's PTSD is not warranted for the year preceding May 12, 2014. 2. From May 12, 2014, entitlement to a total disability rating based on individual unemployability is granted. TDIU A request for total disability evaluation based on individual unemployability (TDIU) is "part and parcel" of a claim for an increased disability rating and is not a separate freestanding claim itself but rather an alternate way to obtain a total disability rating without being rated 100 percent disabled under the Rating Schedule. Rice v. Shinseki, 22 Vet. App. 447, 45355 (2009) (TDIU is implicitly raised whenever a veteran, who presents cogent evidence of unemployability, seeks to obtain a higher disability rating). In this case, the Veteran sought an increased disability rating for his service-connected PTSD and presented evidence of unemployability during his May 2019 testimony before the Board. Therefore, whether the Veteran is entitled to an award of TDIU is properly considered part of his claim for an increased rating for his PTSD. See Rice, 22 Vet. App. at 45455. For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91. VA General Counsel precedential opinions are binding on the Board. 38 U.S.C. § 7104(c); 38 C.F.R. § 14.507. For a veteran who does not qualify for a schedular 100 percent disability rating, according to 38 C.F.R. § 4.16(a), a veteran is entitled to TDIU if the veteran is unable to secure and follow substantially gainful employment by reason of his or her service-connected disabilities, and: 1. The veteran has one service-connected disability rated at 60 percent or more; or 2. The veteran has two or more service-connected disabilities, at least one of which is rated at 40 percent or more, and the combined rating of all service-connected disabilities is 70 percent or more. See also 38 C.F.R. § 4.25 (combined ratings table). If the veteran meets the foregoing schedular criteria, then the Board will inquire whether the veteran is unable to secure and follow substantially gainful employment by reason of his or her service-connected disabilities). 38 C.F.R. § 4.16(a). "Substantially gainful employment" includes two components: a noneconomic component and economic component. The noneconomic component considers whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Ray, 31 Vet. App. at 73. When determining whether a veteran can "secure and follow substantially gainful employment," the Board, as appropriate, should consider: 1. The veteran's history, education, skill, and training; 2. Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (i.e., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and 3. Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. (citations omitted). The Board is precluded from considering the Veteran's age, previous unemployability status, and impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.17, 4.19; see Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). The economic component considers the Veteran's ability to earn more than marginal income as determined by the U.S. Department of Commerce as the poverty threshold for one person. Ray, 38 Vet. App. at 72; 38 C.F.R. § 4.16(a). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a); see Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016). "[A] veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his [or her] particular case." Ortiz-Valles, 28 Vet. App. at 71 (emphasis added). Marginal employment on a facts-found basis includes, but is not limited to, employment in a protected environment, such as a family business or sheltered workshop, even when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). "Protected environment" is not defined by statutes or VA regulations, but the Board finds that it generally means a work environment in which the employer makes special and significant accommodations beyond those reasonably required by law and that are reasonably necessary to accommodate the veteran. In this respect, the Board is mindful of the Americans with Disabilities Act (ADA), especially its mandate that employers provide reasonable accommodations for individuals with disabilities such as "job restructuring, part-time or modified work schedules, . . . [and] acquisition or modification of equipment or devices." 42 U.S.C. § 12111(9)(B). Where a veteran's employer is required by law to provide reasonable accommodations pursuant to the ADA and those accommodations allow the veteran to engage in a substantially gainful occupation, a TDIU award would, in effect, constitute a second paycheck on the back of the taxpayer. In short, the economic component simply 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, and that the noneconomic component requires the Board to fully explain why it concluded a veteran was capable of such employment. Ray, 31 Vet. App. at 73. The ultimate issue of whether TDIU should be awarded is not a medical issue; rather, it is a determination for the adjudicator based on all individualized facts and circumstances. Id. at 72, 7576. Analysis Schedular Criteria Within this decision, the Board has granted the Veteran an increased disability rating of 70 percent for his service-connected PTSD as of May 12, 2014 9 (the date he filed his claim). Therefore, as of May 12, 2014 the Veteran is service connected for the following disabilities with associated ratings: Disability Rating 1. Posttraumatic stress disorder 70% 2. Gunshot wound right foot 10% 3. Residuals, shell fragment wound, right lateral leg with retained foreign body 10% 4. Residuals, shell fragment wound, right lower chin 0% 5. Bilateral hearing loss 0% Accordingly, the Veteran meets the schedular criteria under 38 C.F.R. § 4.16(a) because his PTSD is rated at 70 percent. Substantially Gainful Employment Non-economic component The most probative evidence of record addressing the Veteran's ability to secure and following substantially gainful employment is the private vocational assessment report dated July 27, 2021. A certified rehabilitation counselor evaluated the Veteran. The counselor appropriately documented the Veteran's service-connected disabilities and indicated that he reviewed the Veteran's entire claims file. The Board has already set forth the symptoms reported by the Veteran to the counselor during his evaluation in the analysis of the Veteran's claim for an increased disability rating for his PTSD. The Board incorporates that discussion here. In addition, as to his bilateral hearing loss, the counselor opined that the disability further impaired the Veteran's ability to interact with others. He requires little to no background noise to hear people, requires people to speak loudly, and has chronic difficulty hearing high-pitch tones, such as alarms. The counselor discussed the Veteran's prior work experience and education. He noted the Veteran graduated from high school and did not pursue higher education or additional trade skills. He last worked as a janitor from 2005 to 2011, 30 hours a week. Generally, the Veteran worked independently in the early hours before customers arrived at the establishment and prior to his boss arriving at work. When offered additional hours, the Veteran could not accept the extra work because of his social anxiety as he would have had to work around crowds of people. He ultimately resigned from his position in 2011. The examiner documented that the Veteran's prior occupation was classified under the Dictionary of Occupational Titles as "medium exertional level." The counselor opined that it was at least as likely as not that the Veteran "has been unable to secure and follow substantially gainful employment, to include both skilled and unskilled sedentary work, since at least May 2014 to the present" due to his PTSD and bilateral hearing loss. The counselor reasoned that the Veteran's symptoms, to include difficulty maintaining appropriate social behavior; difficulty interacting with coworkers, peers, and the general public; and significant limitations with maintaining concentration, focus, and pace due to anxiety depression, chronic sleep impairment, irritability, overall lack of motivation, and daytime fatigue would make him unable to meet the basic non-exertional needs of all work, even at an unskilled sedentary exertional level. The counselor cited and discussed specific symptoms associated with the Veteran's PTSD and hearing loss, to include his statements to the August 2016 VA examiner and his Board hearing testimony. The counselor specifically highlighted the Veteran's chronic sleep impairment and impaired motivation that resulted in a lack of focus on work tasks for at least two consecutive hours, inability to move at an adequate pace, and inability to interact with the public and coworkers, as impediments to securing a gainful occupation in a competitive labor market. Based on his included qualifications, the Board finds the counselor competent to evaluate the Veteran and render a professional opinion based on the evidence he considered. The Board finds no evidence in the record that contradicts the counselor's assessment of the Veteran or his opinions addressing the Veteran's inability to secure and follow substantially gainful employment. Accordingly, the Board finds the private vocational assessment is credible and highly probative. The non-economic component weighs in favor of awarding TDIU benefits. Economic component The Veteran submitted a TDIU benefits application in September 2021. Within the application, he stated that he last worked in 2011 as a janitor, working 30 hours per week, earning $726.00 per month. 2011 is the year he cited when he became too disabled to work due to his service-connected disabilities. He stated the most he earned in one year was $21,038.00 in 1999, which a Social Security Administration Earnings Record confirms. The Earning Records also indicates he made $3,413.00 in 2011, and no more than $8,000.00 per year since 2002. The poverty threshold for one person, under the age of 65 in 2020 was $13,456.00, the most recently revised threshold. See United States Census Bureau, Poverty Thresholds, 2020, available at https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html (last accessed Oct. 15, 2021). The evidence of record indicates that since 2002 the Veteran has not earned above the poverty threshold. To note, the poverty threshold for one person for the years dating back to 2002 never rose above $13,456.00. Furthermore, the Veteran's service-connected disabilities prevent him from obtaining a position that would make more than the poverty thresholds from May 12, 2014, for the reasons just discussed. Therefore, the economic component weighs in favor of awarding TDIU benefits. (Continued on the next page) Conclusion From May 12, 2014, the Veteran met the criteria for a total disability rating based on individual unemployability due to his service-connected disabilities. His service-connected disabilities prevent him from securing and following substantially gainful employment and he met the schedular criteria for TDIU benefits. M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. F. Sawka, 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.