Citation Nr: 21064919 Decision Date: 10/22/21 Archive Date: 10/22/21 DOCKET NO. 09-11 247A DATE: October 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, subject to regulations governing payments of monetary awards. FINDING OF FACT The Veteran's service-connected disabilities of posttraumatic stress disorder (PTSD) with alcohol dependence, rated 70 percent; ischemic heart disease with myocardial infarction, rated 10 percent; tinnitus, rated 10 percent; and residuals of malaria, rated 0 percent, are reasonably shown to be of such nature and severity as to preclude his participation in any regular substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The schedular criteria for a TDIU rating are met, and a TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from December 1967 to December 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision that, inter alia, continued a 50 percent rating for PTSD. [An August 2017 rating decision explicitly denied entitlement to a TDIU rating.] A November 2017 Board decision granted a 70 percent rating for PTSD (and denied a higher schedular rating for such) throughout the period under review. The Board noted that a TDIU rating was denied in an August 2017 rating decision and found such was not separately raised by the record. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (CAVC), resulting in a July 2018 Joint Motion for Partial Remand (JMPR) by the parties. The parties agreed that the Board erred when it found that the issue of entitlement to a TDIU rating was not raised by the record; the JMPR states that "the issue remains on appeal as part of the underlying claim for an increased rating." A July 2018 CAVC Order remanded the matter for compliance with the JMPR instructions. [The Veteran did not appeal the 70 percent rating assigned for PTSD, and that matter is no longer before the Board.] A January 2019 Board decision denied entitlement to a TDIU rating. The Veteran appealed the Board's decision to the CAVC, resulting in an October 2019 Joint Motion for Remand (JMR). A November 2019 CAVC Order remanded the matter for compliance with the JMR instructions. A February 2020 Board decision again denied entitlement to a TDIU rating. The Veteran again appealed the Board's decision to the CAVC, resulting in an October 2020 JMR by the parties. A November 2020 CAVC Order remanded the matter for compliance with the JMR instructions. [Although the case was returned to the Board in November 2020, the Veteran's attorney's three extension requests were granted by the Board across 2021. In August 2021, a fourth extension request was denied. In September 2021, he submitted argument and additional medical evidence in support of the claim; he waived AOJ consideration of such evidence and asked the Board to adjudicate the matter.] Entitlement to a TDIU rating is granted. Legal Criteria A TDIU rating may be assigned, where the schedular rating is less than total, when the Veteran is unable to maintain a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Total disability will be considered to exist when there is impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. Substantially gainful employment is defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). In Faust v. West, 13 Vet. App. 342 (2000), the U.S. Court of Appeals for Veterans Claims (CAVC) defined substantially gainful employment as "an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income." The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The dispositive question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In a claim for a TDIU, the ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination instead is for the adjudicator. See 38 C.F.R. § 4.16(a); see also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). 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; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Factual Background The Veteran's service-connected disabilities (PTSD with alcohol dependence, rated 70 percent, ischemic heart disease, rated 10 percent, tinnitus, rated 10 percent, and residuals of malaria, rated 0 percent) are rated 80 percent, combined. The 38 C.F.R. § 4.16(a) schedular rating requirements for a TDIU rating is met. The remaining (and dispositive) question is whether his service-connected disabilities render him incapable of maintaining regular substantially gainful occupation consistent with his education and work experience. In an August 2017 VA Form 21-8940, the Veteran reported that he is unable to work due to PTSD. He reported that he last worked in the cement industry from February 2000 to December 1, 2013 (all for a single company), and that he completed two years of high school; he denied additional education or training. On May 2006 VA PTSD examination, the Veteran reported "a relatively stable job history after leaving the service," including 6 years at his then-current job placing rebars in concrete, and 15 years at his prior job in a cement block plant. He "denied ever being fired and denied problems with supervisors or colleagues during his career." On May 2006 VA audiological examination, the Veteran described his tinnitus as a constant ringing in both ears. At a May 2007 informal DRO conference, the Veteran reported that he had not experienced a relapse of malaria or related symptoms in several decades. A May 2007 private psychological report notes that the Veteran was then employed, since 2000, at a pre-cast concrete plant, and that he previously had worked at a cement block plant for 15 years. The examiner opined that he is able to manage his own self-care in all major areas of daily living. An August 2007 VA PTSD examination report notes a similar work history. The Veteran reported that he can be "irritable and mean" and that the "people at work know him" so they stay away from him. The examiner noted that the Veteran's PTSD causes some impairment, but that he has managed to stay in a construction job "because of his good work habits since childhood." On December 2009 VA PTSD examination, the Veteran reported that his symptoms have remained stable since the prior examination was noted. Although "he seems to choose activities that do not involve a large crowd," he "appears to maintain his work by keeping to himself and choosing jobs with minimal interaction." The Veteran reported no lost time from work during the prior 12 months. A March 2010 VA audiology consult record notes that there "has been no significant change" since the 2006 examination. At a March 2011 DRO hearing, the Veteran testified that he had worked for seven years at his then-current position, where he worked with one man on a daily basis. He reported that he worked with three people at his prior position at the concrete panel plant. He denied being hospitalized for PTSD. At an October 2011 Board hearing, the Veteran testified that he was then working tying rebar, and that after work he enjoys hunting and fishing. His spouse testified that he did not get along with coworkers. An October 2011 private psychological assessment from Dr. W.C. notes psychiatric diagnoses of PTSD, major depressive disorder, generalized anxiety disorder, panic disorder without agoraphobia, cannabis abuse, and alcohol dependence (in sustained full remission). Dr. W.C. noted that the Veteran's "emotional symptoms interfere with work," including having "weapons close to his work station for quick defense." The Veteran reported that his boss "understands my problems." Dr. W.C. noted that the Veteran takes Ativan to manage anxiety at work, and also noted that it appears the Veteran's "supervisor allows for breaks when symptom flare-ups occur; at least once a day." He opined that the symptoms associated with PTSD, MDD, and anxiety (including the alcohol or drugs use to manage stress and emotional symptoms) are "persistent, debilitating" and "cause clinically significant distress or impairment in social, occupational, or other important areas of functioning." In an April 2012 statement (received in May 2012), the Veteran's former representative reported that he "has been laid off since 12/2/11." In a May 2012 statement, Dr. W.C. noted his diagnoses from October 2011 and opined that the Veteran is unemployable. He opined that the Veteran would not have difficulty with short and simple instructions, but "would probably have difficulty carrying out detailed instructions." He also opined that because of his "emotional symptoms," the Veteran would have difficulty performing activities with a schedule, maintaining regular attendance, responding appropriately to supervision and coworkers, responding to pressure in a work setting, and completing a normal workday without interruptions. In 2013, the plant where the Veteran worked closed. See October 2017 statement. A March 2013 Social Security Administration (SSA) disability determination found that the Veteran was not disabled due to PTSD, anxiety, depression, bilateral knee pain, left wrist pain, and hearing loss. The report noted that medical records show some impairment from these symptoms, but that he is able to complete the activities of daily living (ADLs), go hunting, and complete simple work-related tasks. The report also notes that he was laid off from "January March [2011] but then worked full time until employment terminated on 12/20/2011." [SSA earnings records show he earned a consistent income through 2010, a reduced income in 2011, and no income since.] In connection with his SSA claim, the Veteran underwent several examinations (physical and mental) from the Ohio Division of Disability Determination (DDD). On February 26, 2013, physical examination by Dr. S.S., the examiner noted that the Veteran was laid off in December 2011, that he was on unemployment for one year, and that he has not been offered a job "at present due to the winter season." The impressions were history of prior possible arthroscopy and arthritis complaints of the knee, hypertension without heart failure, possible bronchitis related to smoking habit, and spontaneous rupture of the right arm biceps tendon without complications. Dr. S.S. opined that the Veteran "may be limited to medium labor," that he can carry 20-25 pounds frequently and 30-50 pounds occasionally, that he can sit 4-6 hours, walk 3-4 hours, and stand 3-4 hours during an 8-hour shift, and that his hearing, speaking, and traveling are normal. On February 27, 2013 psychological evaluation by Dr. G.S., the Veteran reported that he has an 11th grade education, "has been unemployed for 1-1/2 years," and his "last job was in a factory for 12 years until he was laid off." He reported that "he was fired from one job 'for missing work,'" but did not specify which job or when it occurred. He expressed a belief that he "can't physically do it [work] anymore"; he also noted that he does not like people. He reported that his hobbies include walks in the woods, hunting, fishing, and riding his motorcycle; his spouse does the household shopping, bill-paying, and household management. Dr. G.S. opined that the Veteran is "moderately impaired" in the functional assessment categories of: understanding, remembering, and carrying out instructions; maintaining attention and concentration, maintaining persistence and pace, and performing simple tasks and multistep tasks; responding appropriately to supervision and coworkers in a work setting; and, responding appropriately to work pressures in a work setting. An April 3, 2013 VA treatment record notes that the Veteran was not working and that he last worked in December 2011. A June 2013 VA treatment record notes that the Veteran retired "as he was not able to find work." An April 2014 VA treatment record notes that the Veteran is seeking a part-time job because he wants to go elk hunting "with a few other guys in the Fall in Colorado." [An August 2014 treatment record notes his report that he likely will not be able to go on the hunting trip due to limited funds and because his "knees and hips [are] bothering him as well."] An October 2015 VA (fee basis) heart examination report notes that an interview-based METs test estimated that the Veteran is able to achieve a workload of 7 to 10 METs, a level consistent with jogging, climbing stairs quickly, and sawing wood. The examiner opined that the Veteran's heart disability has no impact on his ability to work. On June 2016 VA PTSD examination, the examiner rated the Veteran's impairment in psychosocial functioning as moderate. She noted that the Veteran attributed the impairment "primarily to irritability." She also noted that he last worked in 2013 "and reported minimal occupational impairment from 2009...until 2013. He speculated that he did well in his position because he was fairly isolated. The Veteran has been unable to find employment since that time and worries that he would be unable to be successful if he were to find employment in a place that required him to work with more than 3-4 people at a time." A July 2017 VA general surgery consult record notes that the Veteran was physically active, including cutting and splitting wood. In August 2017, the Veteran sustained an acute non-ST elevation myocardial infarction. Due to abnormal stress testing in early September 2017, he underwent left heart catheterization; findings were "normal with mild" coronary artery disease (CAD) and "false positive stress test" with left ventricle ejection fraction of 65%. See September 26, 2017 private clinical record. On October 2017 VA heart examination, CAD and valvular heart disease were diagnosed; the examiner noted a detailed history of an August 2017 heart attack and subsequent treatment. The Veteran reported that he last worked in 2013 when his concrete plant closed. The examiner opined that the Veteran's heart disability would not impact his ability to obtain/maintain sedentary employment, but would impact his ability to obtain/maintain physical labor employment, particularly in the setting of his recent heart attack as physical exertion/activity is typically restricted for at least 30 days. [The Veteran's heart disability was assigned a temporary total rating from August 6, 2017 to December 1, 2017.] On October 2017 VA PTSD examination, PTSD, cannabis use disorder, and major depressive disorder (MDD) were diagnosed. The examiner opined that, together, they cause occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The examiner explained that chronic cannabis use and major depression "together contribute much more than PTSD to occupational and social impairment." He noted that symptoms of PTSD include nightmares, flashbacks, lack of motivation, and efforts to avoid traumatic memories; symptoms of cannabis use disorder include time spent on drug use activities, failure to fulfill obligations, and slowed speech and cognition; symptoms of MDD include slowed cognition, sad affect, lethargy, amotivation, and helplessness. The examiner opined that the Veteran's cannabis use is "severe" as he smokes "at least 10 bowls per day" since 1968. He noted the Veteran's belief that cannabis can be helpful, but explained that it can impact cognition, thinking, psychomotor behavior, motivation, and pleasure. He explained that the Veteran's cannabis use pre-dated his PTSD, and thus was less likely caused or aggravated by the PTSD. Regarding employability, the examiner opined that the Veteran's PTSD symptoms are not severe enough to prevent him from attending to, learning, and persisting to completion of work-related tasks. He noted that the Veteran can perform personal care, drive independently, and maintain appointments. He can use a calendar, clock, and telephone. He can perform simple home maintenance and lawn care (and heats with firewood and cuts his own). He has maintained a marriage for more than 30 years, has some friends, and maintains family contact with his children. He has kept in touch with a couple of military "buddies and is a member of VFW. The veteran was pleasant, likeable, capable, and cooperative here, and exhibited quite good social skills. The veteran reported not liking to be around people and often isolating at home." The parties to the October 2019 JMR agreed that "the Board erred when it failed to address (1) a [February 2013] psychological evaluation report that indicated that [the Veteran] was fired from a job for missing work and (2) evidence that [the Veteran] was laid off prior to 2012." The JMR specifically identified records that suggest he stopped working prior to 2013, including: Dr. W.C.'s May 2012 statement; a SSA record that reports he was "terminated on 12/20/2011"; Dr. G.S.'s February 27, 2013 report that the Veteran was unemployed for 1-1/2 years; Dr. S.S.'s February 26, 2013 statement that the Veteran was laid off in December 2011; and an April 3, 2013 VA treatment record which notes the Veteran's report of last working in December 2011. In the October 2020 JMR, the parties agreed that February 2020 Board decision failed to comply with the terms of the October 2019 JMR in that it did not adequately explain its use of the term "sedentary employment," and how it interprets that concept in the context of this case (citing Withers v. Wilkie, 30 Vet. App. 139 (2018)). The parties also agreed that the Board did not adequately address the factors discussed in Ray v. Wilkie, 31 Vet. App. 58 (2019), as to whether the Veteran could "secure or follow a substantially gainful occupation," including his work history, education, skill, training, physical ability, and mental ability. The parties specifically noted that the Board found that he can perform simple home maintenance and lawn care (such as cutting his own firewood), but did "not address the Veteran's specific physical and mental limitations and how those would allow for the completion of certain household tasks, but may not permit potentially more demanding factory or construction work." [The Board notes that in the February 2020 decision, the Board did not find the Veteran is able to perform more demanding factory or construction work; in fact, the Board specifically found that his service-connected heart disability may preclude his ability to work in occupations requiring heavy physical labor.] In September 2021, VA received a private medical opinion from Dr. E.Z., a psychologist. Following an August 2021 interview of the Veteran's spouse and review of the record, she provided three main opinions. First, she opined that the symptoms associated with the Veteran's PTSD, depression, and cannabis use (i.e., pervasive negative mood state, sleep disturbance, decreased participation in activities, distorted cognitions, impaired concentration, and self-destructiveness) overlap to such a degree that they are inextricably intertwined and cannot be differentiated without resort to speculation. She explained that under the DSM-5, MDD and PTSD share similar symptoms, such as: persistently depressed mood vs. persistent inability to experience positive emotions and/or a persistent negative emotional state; and markedly diminished interest or pleasure in all/almost all activities vs. markedly diminished interest or pleasure in all significant activities. She also noted that suicidal ideation, distorted cognitions, and a diminished inability to think or concentrate are identified as symptoms of both MDD and PTSD. Accordingly, she explained that when the MDD and PTSD co-occur, "there is no reasonable method by which to parse out the etiology of specific symptoms; the overlap is simply too great." She explained "that depression has been an aspect of his PTSD for many years." In support of that conclusion, she cited to various clinical records noting the Veteran's depression was treated with his PTSD, "as if they were related," such as a May 2007 private medical opinion, which notes strong evidence of chronic and severe PTSD co-occurring with depression and anxiety, and a September 2013 VA treatment record when an antidepressant was prescribed to treat "mood and PTSD symptoms." She also opined that it is at least as likely as not that the Veteran's cannabis use developed as a means of coping with his PTSD symptoms; she explained that he became increasingly reliant on such once medical consequences of alcohol (including emergency treatment for bleeding ulcer) use eliminated that option (explaining that he has been in full alcohol remission since 2014). She noted that symptoms of cannabis withdrawal include irritability, anxiety, sleep difficulty, decreased appetite, and depressed mood, "all of which are also common to PTSD and depression." Therefore, she disagreed with the conclusions offered on June 2016 and October 2017 examinations. Second, Dr. E.Z. opined that the psychiatric symptoms caused by the Veteran's PTSD, MDD, and cannabis use disorder have manifested in social and occupational impairment with deficiencies in most areas since at least February 2006. [The Board notes that his PTSD has been assigned a 70 percent rating since February 2006, and that the matter of such rating is no longer before the Board. See July 2018 CAVC JMPR.] She noted the Veteran's spouse's report that his mood is "awful, grumpy," that he lacks interest in activities he used to enjoy, that he does not "like people or trust people," that he keeps guns "on dressers and on corners," that he rarely socializes with his children, and that she takes care of most of his ADLs, including cooking and reminding him to shower and take his medication. The Veteran's spouse noted "he might engage in lawncare but indicated his ability to persevere in the face of frustration was minimal." His spouse also noted that he used to look forward to deer hunting and riding an all-terrain vehicle (ATV) or motorcycle; she stated that "they've been sitting for two years. There's nothing physical holding him back. He just doesn't want to anything or talk to anybody." Dr. E.Z. cited to various notations in the record and on VA examinations to support her conclusion, including a March 2006 private opinion which noted a gross inability to relate to others and "rage reactions," an August 2007 VA examination notation that the Veteran's work colleagues stay away from him, a December 2009 VA examination notation that he has no relationship with most of his family, a February 2013 evaluation notation of having "little understanding" of the emotional complexities of relationships, and an October 2017 VA examination notation of "often isolating at home." Finally, Dr. E.Z. opined that "the evidence clearly indicates the combination of the [V]eteran's psychiatric symptoms (i.e., intrusive memories, avoidance, negative distorted beliefs about himself and others, irritability, chronic sleep disturbance, avolition, suicidal ideation, lack of interest and pleasure, and secondary cannabis abuse) causes severe occupational impairment such that it is at least as likely as not that, due to his PTSD, he is unable to secure and follow substantially gainful employment." The Veteran's spouse felt he was "lucky" to previously find employment; she noted that he was able to work by himself, "smoke a joint if he got freaked out by anything," and was allowed to carry a handgun at work. His spouse opined that "nobody is going to hire him." Dr. E.Z. cited to evidence in support of her opinion, such as a March 2006 notation of "gross inability to relate to others on most levels" and "general inability to function in any way society would consider normal," an August 2007 VA examination notation that he is irritable, mean, and that others avoided him, and a May 2012 medical opinion that he was unemployable due to psychiatric symptoms. [She also cited to four medical journals pertaining to cannabis use in veterans with PTSD, alcohol and drug use to self-medicate symptoms of PTSD, and substance use disorders in veterans.] Analysis Upon longitudinal review of the evidence of record, and resolving reasonable doubt in the Veteran's favor, the Board finds the evidence at least in equipoise that a TDIU rating is warranted. The Veteran has a limited (to tenth grade) education, and has had no additional education or training. See August 2017 and September 2021 VA Forms 21-8940. His occupational experience has primarily been in physically demanding work/heavy labor with precast concrete and rebar. His occupational experience has included very limited interaction with coworkers/managers (no more than 3 or 4 people at a time, and often by himself), and does not include customer-facing interaction. Notably, several notations in the record show he kept weapons near his workstation and (at times) carried a handgun to work. The record suggests he was also provided with breaks when psychological symptom flare-ups occurred. The Veteran's ischemic heart disease, rated 10 percent, may limit his ability to engage in heavy physical labor. The Board notes that he reported in October 2017 that he heats his home with firewood he cuts himself, suggesting he can participate in some physical labor. And on August 2021 interview, his spouse reported that he, at times, engages in lawn care, and stated that there is "nothing physical holding him back" from deer hunting or riding an ATV or motorcycle. Such statements suggest he retains the ability to perform at least light physical labor, albeit not necessarily the heavy labor he previously performed while working with concrete and rebar. The Veteran's tinnitus, rated 10 percent, has been described as a constant ringing in both ears, and may somewhat limit his ability to conversate with others. And the Veteran has denied having symptomatic residuals of malaria. The remaining question is whether the Veteran's PTSD precludes participation in any regular substantially gainful employment consistent with his education and occupational experience. On this matter, the Board finds the September 2021 private medical opinion from Dr. E.Z. credible and persuasive. The Board previously denied this claim, based in part on a finding that the May 2012 opinion in support of the claim failed to differentiate the symptoms attributable to each psychiatric disability (particularly those for which service-connection was not established, such as cannabis use) and failed to discuss the impact of the Veteran's PTSD, alone, on his ability to work; the preponderance of the other evidence weighed against the claim. Considering Dr. E.Z.'s opinion (received after the Board's February 2020 denial), the Board finds the competent evidence in this matter now in equipoise. Dr. E.Z. opined, with citation to supporting evidence of record and medical journals, that the Veteran's cannabis use developed as a means of coping with his PTSD symptoms, particularly once it became clear his alcohol use/abuse posed a serious health risk and he discontinued such. She also explained why (with citation to DSM-5 and the clinical record) the symptoms associated with PTSD, depression, and cannabis use (i.e., pervasive negative mood state, sleep disturbance, decreased participation in activities, distorted cognitions, impaired concentration, and self-destructiveness) overlap to such a degree that they are inextricably intertwined and cannot be differentiated without resort to speculation. In conclusion, she opined that the evidence clearly indicates that the Veteran's psychiatric symptoms (specifically intrusive memories, avoidance, negative distorted beliefs about himself and others, irritability, chronic sleep disturbance, avolition, suicidal ideation, lack of interest and pleasure, and secondary cannabis abuse) cause severe occupational impairment such that it is at least as likely as not that, due to his PTSD, he is unable to secure and follow substantially gainful employment. Resolving any remaining reasonable doubt in the Veteran's favor, as required (see 38 C.F.R. § 4.3), the Board finds that a TDIU rating is warranted.[The effective date of the award is a downstream issue for the AOJ to address in the first instance.] GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.