Citation Nr: 21064293 Decision Date: 10/19/21 Archive Date: 10/19/21 DOCKET NO. 11-03 520 DATE: October 19, 2021 ORDER Entitlement to a compensable rating for cystitis cystica prior to June 22, 2010 is denied. Entitlement to a rating in excess of 20 percent for cystitis cystica from June 22, 2010 to February 1, 2015 is denied. Entitlement to a compensable rating for cystitis cystica from February 1, 2015 is denied. Entitlement to a rating in excess of 10 percent for a cervical spine disability from January 28, 2009 to June 22, 2010 is denied. Entitlement to a rating in excess of 20 percent for a cervical spine disability from June 22, 2010 is denied. FINDINGS OF FACT 1. Prior to June 22, 2010, the Veteran's cystitis cystica was asymptomatic and did not manifest by voiding dysfunction. 2. Between June 22, 2010 and February 1, 2015, the Veteran's cystitis cystica did require the use of absorbent materials, cause obstructed voiding causing urinary retention requiring intermittent or continuous catheterization, or cause daytime voiding interval less than one hour or awakening to void five or more times per night. 3. From February 1, 2015, the Veteran's cystitis cystica is asymptomatic and did not manifest by voiding dysfunction. 4. Between January 28, 2009 and June 22, 2010, the Veteran's cervical spine disability manifested by occasional spasm, forward flexion of the cervical spine was greater than 30 degrees, and combined range of motion of the cervical spine was greater than 170 degrees; there was no finding of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 5. From June 22, 2010 there is no indication that the Veteran's cervical spine disability manifests with forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for cystitis cystica prior to June 22, 2010 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012). 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.14, 4.20, 4.27, 4.115a, 4.115b, Diagnostic Code 7529-7512 (2020). 2. The criteria for a rating in excess of 20 percent for cystitis cystica between June 22, 2010 and February 1, 2015 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012). 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.14, 4.20, 4.27, 4.115a, 4.115b, Diagnostic Code 7529-7512 (2020). 3. The criteria for a compensable rating for cystitis cystica from February 1, 2015 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012). 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.14, 4.20, 4.27, 4.115a, 4.115b, Diagnostic Code 7529-7512 (2020). 4. Between January 28, 2009 and June 22, 2010, the criteria for a disability rating in excess of 10 percent for the Veteran's cervical spine disability are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242 (2020). 5. From June 22, 2010, the criteria for a disability rating in excess of 20 percent for the Veteran's cervical spine disability are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5242 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty as a U.S. Navy commissioned officer from June 1955 to August 1959 and from February 1960 to June 1986 including service in Southeast Asia. These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2009 rating decision. During the pendency of the appeal, the RO awarded an increased evaluation for the service-connected cervical spine disability from 0 percent to 10 percent, effective January 28, 2009, and from 10 percent to 20 percent, effective June 22, 2010. The RO also awarded an increased evaluation for the service-connected cystitis cystica from 0 percent to 20 percent, effective June 22, 2010. The Veteran appeared at a hearing before a Decision Review Officer in January 2014. A transcript of the hearing is in the Veteran's file. A November 2014 rating decision reduced the rating for cystitis cystica from 20 percent to 0 percent, effective February 1, 2015. As the Veteran has not appealed the propriety of the reduction, the Board has jurisdiction only over the claim for a higher rating for cystitis cystica. This case was most recently before the Board in May 2020, when it was remanded to the RO for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). The Veteran was formerly represented by Military Order of the Purple Heart. In correspondence in August 2021, the Board informed the Veteran that this organization was no longer accredited to represent veterans and provided an opportunity to designate another representative within 30 days. No response or new designation was received. Increased Rating Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran's disability, 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. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. 1. Entitlement to a compensable rating for cystitis cystica prior to June 22, 2010 2. Entitlement to a rating in excess of 20 percent for cystitis cystica between June 22, 2010 and February 1, 2015 3. Entitlement to a compensable rating for cystitis cystica from February 1, 2015 The Veteran has a noncompensable rating for cystitis cystica prior to June 22, 2010, a 20 percent rating between June 22, 2010 and February 1, 2015, and a noncompensable rating thereafter. The RO has rated the Veteran's cystitis cystica under Diagnostic Code 7529-7512. Hyphenated codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. See 38 C.F.R. § 4.27. Here, Diagnostic Code 7529 references benign neoplasms of the genitourinary system and the actual disability rating for cystitis cystica are rated under DC 7512, for chronic interstitial cystitis, which notes to rate the condition under voiding dysfunction. See 38 C.F.R. § 4.115b, DC 7512. The criteria for rating voiding dysfunction require the condition to be rated as either urine leakage, urinary frequency, or obstructed voiding. See 38 C.F.R. § 4.115a. For voiding dysfunction, a 20 percent rating is warranted when wearing of absorbent materials which must be changed less than 2 times per day is required. A 40 percent rating is warranted for when absorbent materials must be changed 2 to 4 times per day. A 60 percent rating is warranted when use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day is required. For urinary frequency, a 10 percent rating is warranted for daytime voiding interval between two and three hours or awakening to void two times per night. A 20 percent rating is warranted for daytime voiding interval between one and two hours or awakening three to four times per night. A 40 percent rating is warranted for daytime voiding interval less than one hour or awakening to void five or more times per night. For obstructed voiding, a 0 percent rating is warranted for obstructive symptomatology with or without stricture disease requiring dilatation 1 to 2 times per year. A 10 percent rating is warranted for marked obstructive symptomatology such as hesitancy, slow or weak stream, or decreased force of stream (with one or a combination of: post-void residuals greater than 150 cc; markedly reduced peak flow rate on uroflowmetry; recurrent urinary tract infection secondary to obstruction; or stricture requiring periodic dilatation. A 30 percent rating is warranted for urinary retention requiring intermittent or continuous catheterization. The Veteran submitted a claim for entitlement to a higher rating for cystitis cystica in January 2009. In a March 2009 VA examination, the Veteran reported urinary urgency and frequency that improved with medication starting one year earlier. He did not experience incontinence. He reported no treatment for cystitis cystica and was unaware of any symptoms for this disorder. In February 2010 correspondence, the Veteran stated that he woke up to void at least three times a night. The Veteran attended a VA examination in June 2010. He told the examiner that his bladder problems began about three years prior with increased nocturia and occasional severe urgency. He reported nocturia was present four times and he had daytime urination every two to three hours. There was no hesitancy, dysuria, or abnormality of the stream. He had intermittent minimal incontinence but did not require the use of absorbent material or an appliance. In February 2011 correspondence, the Veteran stated that he woke up to void at least four times a night and once per hour during the day. The Veteran attended another VA examination in May 2012. He reported an onset of urinary symptoms in 2006. He denied urinary leakage. He reported nocturia was present two times and he had daytime urination every two to three hours. There was no hesitancy, dysuria, or abnormality of the stream. The examiner determined that the Veteran's cystitis cystica would not impact his ability to work. A VA opinion regarding the etiology of the Veteran's voiding symptoms was obtained in July 2012. Following a review of the Veteran's medical history and the claims file, a VA examiner determined that the Veteran's current voiding symptoms were not due to cystitis cystica, but instead due to benign prostatic hypertrophy. The physician explained that the Veteran's cystitis cystica was discovered in 1977 and was asymptomatic. He was diagnosed with benign prostatic hypertrophy in 2006. The physician explained that it was less likely than not that cystitis cystica would be asymptomatic for about 30 years and then cause urinary issues. During February 2013 VA treatment, the Veteran's treating physician explained to him that she agreed with the RO's decision to decrease his cystitis cystica disability to noncompensable because his urinary symptoms were due to his nonservice-connected benign prostatic hypertrophy. The Veteran attended a hearing at the RO in January 2014. He stated that his urinary urgency and nocturia stemmed from a 1971 vasectomy. The Veteran submitted a statement from his VA physician in January 2014. The VA physician stated that although the Veteran had bladder cysts during his service, it was not clear that those cysts were related to his current urinary symptoms which were more consistent with prostatic enlargement. During a September 2014 VA examination, the examiner attributed voiding dysfunction to benign prostatic hypertrophy. Veteran reported daytime voiding between one and two hours and nighttime 3 to 4 times with no use of absorbent materials. An August 2018 VA opinion determined that the Veteran's urinary incontinence was due to his Parkinson's disease. An August 2018 rating decision granted a 60 percent disability evaluation for urinary problems associated with the Veteran's service-connected Parkinson's disease. The Veteran attended a VA examination in October 2020. Following an examination and review of the claims file, the VA examiner determined that the Veteran's cystitis cystica was asymptomatic. While there has been some apparent confusion as to the extent, or presence, of any residuals from the Veteran's service-connected cystitis cystica, the Board concludes that the Veteran's voiding dysfunction, manifested by frequency, urgency, nocturia, and leakage, is more likely than not related to nonservice-connected benign prostatic hypertrophy and service-connected Parkinson's disease. As explained above, the Veteran was granted a 60 percent disability evaluation for urinary problems associated with the Veteran's service-connected Parkinson's disease in an August 2018 rating decision. The evaluation of the Veteran's Parkinson's disease and resulting complications are not on appeal. The Board recognizes that the Veteran was awarded a 20 percent evaluation for cystitis cystica between June 22, 2010 to February 1, 2015. Although that decision appears to be inconsistent with the medical records, there will be no retroactive disturbance to that award. However, because the evidence of record overwhelmingly reflects that Veteran's cystitis cystica has not manifested by voiding dysfunction or any other symptoms, entitlement to higher ratings during any of the periods on appeal is not warranted. 4. Entitlement to a rating in excess of 10 percent for a cervical spine disability between January 28, 2009 to June 22, 2010 The Veteran contends that he is entitled to a higher rating for his neck disability. The Veteran was assigned a 10 percent rating for his neck disability between January 28, 2009 and June 22, 2010 and a 20 percent rating thereafter under Diagnostic Code 5003. Under Diagnostic Code 5003, degenerative arthritis is rated on the basis of limitation of motion of the specific joint involved. When limitation of motion is noncompensable, a 10 percent rating is for application for each major joint. In the absence of limitation of motion, a maximum schedular 20 percent rating is assigned for degenerative arthritis of two or more major joints or two or more minor joint groups, with occasional incapacitating episodes. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine; or, when forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, the combined range of motion of the cervical spine is 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. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. The Veteran's orthopedic doctor submitted a letter in November 2008, stating that he treated the Veteran for low back, hip and knee pain. He did not mention any treatment for neck pain or cervical arthritis. The Veteran submitted a claim for an increased rating for his neck disability in January 2009. The Veteran attended a VA examination in March 2009. He reported periodic neck spasms, stating the last spasm requiring treatment was two years prior. He denied any neck pain that restricted him from engaging in his usual activity, but he explained that he refrained from turning his neck too quickly because that sometimes lead to dizziness. Examination was negative for paraspinous tenderness. Range of motion testing revealed flexion to 40 degrees, extension to 30 degrees, lateral bending to 35 degrees bilaterally, and rotation to 70 degrees bilaterally. He denied pain with movement, or pain with repeated motion. He also denied weakness, fatiguability, or lack of coordination with repetitive movement. Diagnostic testing revealed moderate degenerative join disease. The Veteran attended another VA examination on June 22, 2010. He reported a "squeezing" intermittent pain in his neck that occurred daily. He denied any current treatment and said he did not experience flare-ups. His associated features were limited to an occasional muscle spasm and did not include weakness, decreased motion, numbness, paresthesias, leg or foot weakness, or bladder or bowel complaints. He stated that his neck condition did not limit his ability to do his work or recreational activities or interfere with his daily activities. Range of motion testing revealed flexion to 20 degrees, extension to 30 degrees, and rotation to 70 degrees bilaterally. Repetitive activity produced no apparent pain, crepitation or change in the range of motion due to pain, fatigue, weakness, lack of endurance or incoordination. The examiner determined that the Veteran's neck disability would cause a minimal degree of functional impairment. After review of all the evidence regarding the orthopedic manifestations of the Veteran's cervical spine disability, the Board finds that a rating in excess of 10 percent is not warranted. A 20 percent rating is warranted for 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. Prior to June 22, 2010, the most probative evidence of record does not indicate that the Veteran's cervical spine disability was manifested by 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. Forward flexion and combined range of motion documented in the March 2009 VA examination report discussed above is much greater than the required criteria for a higher 20 percent rating. Moreover, the VA examination reports document no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. There are no objective findings contrary to the VA examination report during the period under consideration and the Veteran denies receiving any medical treatment for his neck during this period. Accordingly, the 10 percent evaluation is warranted for limitation of motion. With regard to the DeLuca factors, the Board notes the Veteran denied flare-ups or any functional loss following repetitive use. Under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25 (2019); see also Esteban v. Brown, 6 Vet. App. 259, 261 (1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14 (2019); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Note (1) under the General Rating Formula for Diseases and Injuries of the Spine directs evaluation of any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. See also Bierman v. Brown, 6 Vet. App. 125 (1994) [holding that under former Diagnostic Code 5293 a separate rating for neurological disability may be appropriate when its manifestations are distinct from the musculoskeletal disorder]. The Veteran's report of periodic dizziness when moving his neck too quickly during the March 2009 VA examination. However, the Veteran is already separately service connected for labyrinthitis with vertigo. The Board finds that the preponderance of the evidence is against the Veteran's claim for entitlement to a higher rating for his neck disability prior to June 22, 2010. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. Entitlement to a rating in excess of 20 percent for a cervical spine disability from June 22, 2010 The Veteran attended another VA examination for his neck in August 2012. He reported an audible click with movement but denied any pain or receiving any treatment. He also denied flare-ups. Range of motion testing revealed flexion to 45 degrees or greater, extension to 45 degrees or greater, lateral flexion to 25 degrees bilaterally, and lateral rotation to 50 degrees bilaterally. There was no objective evidence of painful motion. Repetitive activity produced no apparent pain, crepitation or change in the range of motion due to pain, fatigue, weakness, lack of endurance or incoordination. The examiner determined that the Veteran's neck disability would not impact his ability to work. The Veteran attended a hearing at the RO in January 2014. He stated that his spine condition was more severe, but it was not clear whether he was referring to his neck or his low back. Upon VA examination in September 2014, the Veteran reported a click in his posterior neck on head turning with accompanying moderate neck pain. Range of motion testing revealed flexion to 50 degrees or greater, extension to 45 degrees or greater, right lateral flexion to 30 degrees, left lateral flexion to 20 degrees, right lateral rotation to 55 degrees, and left lateral rotation to 70 degrees. There was no objective evidence of painful motion. Pain, weakness, fatigability or incoordination did not significantly limit functional ability of the cervical spine during flare ups or when the cervical spine was used repeatedly over a period of time. There was no additional range of motion loss of the cervical spine due to repetition or flare ups or repeated use over a period of time. The examiner determined that the Veteran's neck disability would not impact his ability to work. During February 2015 and September 2016 medical treatment, the Veteran denied any neck symptoms, but did report lower back pain. The Veteran attended a VA examination in May 2017. He told the examiner that he did not remember reporting any neck problems aside from occasional tingling or spasm. He denied any pain, or any flare-ups, but then said that he had increased pain with walking and weight bearing. Range of motion testing revealed flexion to 45 degrees, extension to 45 degrees, lateral flexion to 15 degrees bilaterally, and lateral rotation to 35 degrees bilaterally. Pain was noted with right and left lateral flexion. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Spasms, localized tenderness and guarding did not result in an altered gait. The examiner determined that the Veteran's neck disability would make lifting difficult. January 2018 private treatment records reveal that the Veteran's neck was normal. Upon VA examination in October 2020, the Veteran reported an increase in severity with moderate pain which increased in intensity with crepitus. He denied flare-ups. Range of motion testing revealed flexion to 35 degrees, extension to 35 degrees, lateral flexion to 35 degrees bilaterally, and lateral rotation to 45 degrees bilaterally. There was objective evidence of painful motion. Pain, weakness, fatigability or incoordination did not significantly limit functional ability of the cervical spine during flare ups or when the cervical spine was used repeatedly over a period of time. Pain did significantly limit functional ability with repeated use over a period of time. Muscle strength was normal. The Veteran reported the daily use of pain medication. The examiner estimated that followed repeated use, range of motion would decrease by 5 degrees in all facets. There was no objective pain with non-weight bearing and his active range of motion was the same as his passive range of motion. The Veteran reported difficulty looking upward but the measured range of extension of 35 degrees would not limit upward view. The examiner determined that the Veteran would need to engage in nonphysical forms of work which did not require working overhead due to decreased range of motion and pain as a result of cervical spine osteoarthritis and degenerative disc disease. After review of all the evidence regarding the orthopedic manifestations of the Veteran's cervical strain, the Board finds that a rating in excess of 20 percent is not warranted. A 30 percent rating is warranted for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. The most probative evidence of record does not indicate that the Veteran's cervical spine disability was not manifested by forward flexion of the cervical spine 15 degrees or less. In this regard, forward flexion documented in all of the VA examination reports discussed above is much greater than the required criteria for a higher 30 percent rating. There are no objective findings contrary to the VA examination reports during the period under consideration. Accordingly, an evaluation in excess of 20 percent is not warranted. With regard to the DeLuca factors, the Board notes the Veteran's complaints such as pain with repeated use, and the Board has taken those complaints into consideration in its above discussion. However, the Board finds that the evidence does not support a finding that the Veteran's functional loss causes additional disability that approximates a 30 percent rating. (continued next page) The Board finds that the weight of competent and credible evidence is against the Veteran's claim for entitlement to a higher rating for his neck disability from June 22, 2010. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 5557 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.