Citation Nr: A21016810 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 200221-70678 DATE: October 15, 2021 ORDER A 3-month extension of the Veteran's temporary total evaluation based on continued use of a wheelchair or crutches, is granted from April 1, 2019, subject to the laws and regulations governing the award of monetary benefits. The rating decision dated January 3, 2019, reducing the rating for the Veteran's right ankle disability from 30 percent to a 10 percent rating, is void ab initio and a rating of 30 percent is restored. A rating in excess of 30 percent for a right ankle disability is denied. A total disability rating based on individual unemployability (TDIU) based solely on the Veteran's service connected right ankle disability is denied. FINDINGS OF FACT 1. The evidence of record shows that the Veteran's post-surgical right ankle convalescence necessitated the continued use of a wheelchair and/or crutches of a major joint, after April 1, 2019. 2. The January 3, 2019 rating decision, which decreased the Veteran's assigned rating for her service-connected right ankle disability, from 30 percent to 10 percent, with an effective date of April 1, 2019, did not consider required regulatory provisions and denied the Veteran due process. 3. From July 1, 2019, the Veteran's right ankle was not shown to cause ankle ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion, or eversion deformity. 4. The weight of the evidence fails to show that the Veteran is unable to obtain or maintain substantially gainful employment based solely on her right ankle disability. CONCLUSIONS OF LAW 1. The criteria for a temporary total evaluation based on convalescence for service-connected right ankle disability have been met from April 1, 2019. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.102, 4.30 2. The criteria for restoration of a 30 percent disability rating for a right ankle disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105 (e), 3.344. 3. The criteria for a rating in excess of 30 percent for a right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5270-74. 4. The criteria for a TDIU based solely on the Veteran's right ankle disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2001 to October 2001. The Veteran provided testimony at a March 2021 Board hearing before the undersigned Veterans Law Judge (VLJ). A complete transcript is of record. The Veterans Appeals Improvement and Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA), took effect on February 19, 2019. The AMA applies to all claims for which the agency of original jurisdiction (AOJ) issues the initial decision on or after February 19, 2019, even if the claim was filed under the so-called legacy system that preceded the AMA. 38 C.F.R. § 3.2400 (a). This matter is on appeal from an October 2019 AMA rating decision. VA received the Veteran's convalescence claim and increased rating claim for the right ankle disability on August 5, 2019. An October 2019 rating decision assigned a temporary evaluation of 100 percent based on surgical treatment necessitating convalescence from February 1, 2019 to April 1, 2019. Prior to the surgery, the Veteran was in receipt of a 30 percent rating for her right ankle disability, but after the surgery, the disability rating was assigned a 10 percent rating, effective April 1, 2019. The Veteran disagreed with those decisions and filed a VA Form 10182 Notice of Disagreement and selected the AMA review hearing lane, on February 21, 2020. Accordingly, in adjudicating the issues on the merits, the Board is required to consider the evidence of record at the time of RO's October 2019 rating decision, evidence submitted by the Veteran at the hearing, as well as evidence submitted within 90 days following the March 15, 2021 hearing. 38 C.F.R. § 20.302 (b). Accordingly, the Board will consider evidence of record as of the October 2019 AMA rating decision, as well as evidence received at the hearing and within 90 days following the hearing. 1. Entitlement to a 3-month extension of a temporary total evaluation based on continued use of a wheelchair or crutches is granted from April 1, 2019 The Veteran testified that after her February 2019 surgery, she wore a CAM boot, as well as used crutches until June 2019, when she received a cane. She also testified that her right ankle disability did not improve during this period. She reported that some hardware was taken out of her ankle, which was supposed to improve her condition, but she found that the surgery unfortunately did not correct the balance issues caused by her right ankle. For example, she testified that walking about two blocks would cause the right ankle to feel wobbly, and has caused her to fall. She testified that she experienced balance issues, both before and after the surgery. For the purposes of this appeal, the Veteran was granted a temporary total disability rating from February 1, 2019 to April 1, 2019, post right ankle surgery. A total disability rating (100 percent) will be assigned without regard to other provisions of the Rating Schedule when it is established that a service-connected disability has required hospital treatment in a VA or an approved hospital for a period in excess of 21 days, or that hospital observation at VA expense is required for a service-connected disability for a period in excess of 21 days. 38 C.F.R. § 4.29. A total disability rating (100 percent) also will be assigned without regard to other provisions of the Rating Schedule when it is established by report at hospital discharge (regular discharge or release to non-bed care) or outpatient release that entitlement to a temporary total convalescence rating is warranted, effective from the date of hospital admission or outpatient treatment and continuing for a period of one, two, or three months from the first day of the month following such hospital discharge or outpatient release. 38 C.F.R. § 4.30. Entitlement to a temporary total convalescence rating is warranted if treatment of a service-connected disability results in: (1) surgery necessitating at least one month of post-operative convalescence; (2) surgery with severe post-operative residuals, such as incompletely healed surgical wounds, stumps of recent amputations, therapeutic immobilization of one major joint or more, application of a body cast, the necessity for house confinement, or the necessity for continued use of a wheelchair or crutches (regular weight-bearing prohibited); or (3) immobilization by cast, without surgery, of one major joint or more. 38 C.F.R. § 4.30 (a). This regulation only authorizes the assignment of a disability rating and payment of compensation for service-connected disabilities. VA regulations define the ankle as a major joint. 38 C.F.R. § 4.45 (f). Significantly, pursuant to 38 C.F.R. § 4.30 (b), extensions of 1, 2 or 3 months beyond the initial 3 months may be made under paragraph (a) (1), (2) or (3) of 38 C.F.R. § 4.30 (a), but extensions of 1 or more months up to 6 months beyond the initial 6 months period may only be made under paragraph (a) (2) or (3) of 38 C.F.R. § 4.30 (a). Those paragraphs refer to severe post-operative residuals and immobilization by cast. The Board notes that the Veteran did not have any VA examinations prior to June 2019. However, the Veteran's VA treatment records show that during this time period, she was participating in physical therapy. In June 2019, she was noted to require upper extremity assistance for transfer and demonstrated an antalgic gait. The Board notes that a review of the VA treatment records shows that she was instructed to use a wheelchair and crutches after the surgery to avoid weightbearing. Although the treatment records did not indicate exactly how long the Veteran utilized crutches for, the contemporaneous evidence of record supports her assertion that she used crutches until June 2019. Here, the evidence reflects that an extension of the Veteran's temporary total disability rating is warranted. The Veteran has competently testified that her right ankle disability required that she wear a CAM boot following the February 2019 surgery and had to utilize crutches until June 2019. The evidence is thus at least evenly balanced as to whether the Veteran's right ankle disability post-surgery resulted in continued use of a wheelchair or crutches under 38 C.F.R. § 4.30 (a), through June 2019. Accordingly, a 3-month extension of the Veteran's temporary total disability rating is warranted pursuant to 38 C.F.R. § 4.30 (b)(1) from April 1, 2019 to July 1, 2019. 2. Reduction A January 2019 rating decision decreased the Veteran's disability rating from 30 percent to 10 percent, effective April 1, 2019. However, as previously discussed, the Veteran had right ankle surgery in February 2019 and this Board decision granted a temporary total disability rating until July 1, 2019. The record reflects that a 10 percent rating was assigned after the temporary total disability rating expired. The record also reflects that the Veteran's right ankle disability has been service-connected since October 2001. To properly reduce a disability rating requires VA to meet both procedural and substantive requirements. Procedurally, where the reduction in the rating of a service-connected disability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. 38 C.F.R. § 3.105 (e). The beneficiary will be notified at their latest address of record of the contemplated action and furnished detailed reasons therefore, and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. Id. The veteran must also be informed that they may request a pre-determination hearing prior to the reduction. 38 C.F.R. § 3.105(e)(i)(1). Following this 60-day period, a final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. Id. Here, the Board will not discuss whether the RO complied with the procedural requirements of 38 C.F.R. § 3.105 (e) because the reduction did not reduce the Veteran's overall compensation. Here, both before and after the reduction of the assigned rating for the Veteran's right disability, her combined evaluation for compensation was 100 percent. As such, the procedural requirements under 38 C.F.R. § 3.105 (e) do not apply. See Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007). Reducing a rating also brings concurrent substantive requirements that must be followed. Generally, a rating reduction is warranted where reexamination of the disability discloses improvement of that disability. 38 C.F.R. § 3.344 (c). In making this determination, VA is required to comply with several regulations applicable to all rating-reduction cases, regardless of the rating level or the length of time that the rating has been in effect. 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.13; Brown v. Brown, 5 Vet. App. 213, 413, 420 (1993). Further, for ratings in effect for five years or more, there are additional requirements that must be met before VA can reduce a disability rating. Specifically, per 38 C.F.R. § 3.344 (c), the provisions of 38 C.F.R. § 3.344 (a) and (b) apply for ratings which have continued for long periods at the same level (five years or more). In this case, the Veteran's 30 percent rating for her right ankle disability was in effect for about 16 years; as such, those additional requirements are applicable. See 38 C.F.R. § 3.344. These provisions impose a clear requirement that VA rating reductions be based upon review of the entire history of the Veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Such review requires VA to ascertain, based upon review of the entire recorded history of the condition, whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based upon thorough examinations. Thus, in any rating reduction case, not only must it be determined that an improvement in a disability has actually occurred, but also that that improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10, 4.13; Faust v. West, 13 Vet. App. 342, 350 (2000). It appears that the decrease in the Veteran's disability rating for her right ankle disability were based exclusively on findings made in a February 2018 VA contract examination. The examination did show material improvement, in terms of range of motion; however, the record has not shown or discuss whether such improvement constituted sustained improvement under the ordinary conditions of life and work. Brown v. Brown, 5 Vet. App. 413, 420-21 (1993). A review of the RO's March 2018 rating decision, which proposed to reduce the rating; the January 2019 rating decision that reduced the rating; the July 2019 and October 2019 which found that the 10 percent rating was warranted, shows that the RO appears to have analyzed the issue of a reduction of the 30 percent evaluation, just as it would a claim for an increased rating. Specifically, the RO failed to discuss the provisions of 38 C.F.R. §§ 3.105 or 3.344 in its analysis. Of note, at no time did its analysis discuss the issue of whether there was "an actual improvement in the Veteran's ability to function under the ordinary conditions of life and work." Id. The Board notes that the Veteran was assigned a 30 percent evaluation for her right ankle based on dorsiflexion limited to 0 degrees and plantar flexion to 50 degrees, with painful motion. The Board notes that an evaluation of 30 percent is warranted for ankylosis with plantar flexion between 30 and 40 degrees, or in dorsiflexion between 0 and 10 degrees. Further, in addition to the RO's failure to discuss the provisions of 38 C.F.R. §§ 3.105 or 3.344, the evidence of record does not indicate that the Veteran had "actual improvement." The Veteran was afforded VA examinations for her right ankle in September 2019, October 2019, and in November 2020. The Board acknowledges that the October 2019 and November 2020 VA examinations showed improved range of motion for dorsiflexion to 10 degrees in 2019 and to 15 degrees in 2020 and plantar flexion to 20 degrees in 2019 and 40 degrees in 2020. However, the respective examiners noted in the "functional impact" sections of both the October 2019 and November 2020 examination reports that the Veteran's walking was limited, and also that she could not drive or run. Further, she provided credible testimony, where she stated that had difficulty with balance prior to the surgery and that the surgery did not improve her ability to balance. Here, the evidence has shown that the Veteran's range of motion has improved; however, the functional impact of her right ankle disability does not appear to have shown "actual improvement", as contemplated under 38 C.F.R. § 3.344. The Court has stated that both decisions by the RO and by the Board that do not apply the provisions of 38 C.F.R. § 3.344, when applicable, are void ab initio (i.e., at their inception). Lehman v. Derwinski, 1 Vet. App. 339 (1991); Brown v. Brown, 5 Vet. App. 413 (1993). Since the rating decision that accomplished the reduction of the 30 percent evaluations for the Veteran's service-connected right ankle disability, did not properly apply the provisions of 38 C.F.R. § 3.344, the reduction is void. The appropriate remedy in this case is a restoration of the 30 percent rating. Hayes v. Brown, 9 Vet. App. 67, 73 (1996). The Board finds that the Veteran's 30 percent rating for her service-connected right ankle disability, was improperly reduced, that the reduction of the rating is void ab initio, and that the 30 percent rating for the Veteran's service-connected right ankle disability should be restored. Accordingly, the Board finds that restoration of the 30 percent rating for the Veteran's service-connected right ankle disability, is warranted. 3. A rating in excess of 30 percent for a right ankle disability is denied. The Veteran's right ankle disability rating has been restored to 30 percent. As such, the Board will adjudicate whether she is entitled to a rating in excess of 30 percent. It is noted that on February 7, 2021, during the course of this appeal, revisions to the Schedule for Rating Disabilities that addresses the musculoskeletal system went into effect. The U.S. Supreme Court has held that statutes generally may not be construed to have retroactive effect unless their language requires that result. See Landgraf v. USI Film Products, 511 U.S. 244 (1994). In Karnas, the Federal Circuit held that the more favorable regulations should apply to the Veteran. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). However, the Federal Circuit overruled Karnas to the extent that it allowed for retroactive application and conflicted with U.S. Supreme Court and Federal Circuit precedents. Specifically, in Kuzma, the Federal Circuit held that the Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, Karnas allows the old criteria to be applied before and after the effective date of the amendment, if such is more favorable to the Veteran. But, in light of Kuzma, the amended regulation cannot be applied prior to the effective date unless it explicitly provides otherwise. In other words, the old and new regulations are for consideration with regard to rating the Veteran's disability, and she is entitled to the more favorable regulation; however, if the revised criteria are more favorable to the Veteran and provide for an increased rating, that award may not be made effective before the effective date of the change. See 38 U.S.C. § 5110 (g); VAOPGCPREC 3-00. The amendments to the rating schedule do not have any retroactive application. Here, the revisions to the regulations have a limited impact because they do not substantively change how the ankle is rated, but also because the period on appeal ended with the issuance of the rating decision in October 2019 which predated the effective date of the revised regulations. The new regulations can be instructive in helping to define the regulations in effect at the time the claim for an increased rating was filed, in that the revisions define marked and moderate limitation of motion as it applies to the ankles. Under the revised regulations, marked limitation of motion of the ankle means less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion and is rated at 20 percent. Moderate limitation of motion means less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion and is rated at 10 percent. In applying the appropriate Diagnostic Codes in this case, the Board notes that it must explain what is meant by mild and moderate. Here, the Board adopts the definitions contained in the revised regulations and they appear reasonable. Diagnostic Code 5270 governs ankylosis of the ankle and provides a 20 percent rating for ankylosis in plantar flexion, less than 30 degrees; a 30 percent rating for ankylosis in plantar flexion, between 30 degrees and 40 degrees, or in dorsiflexion, between 0 degrees and 10 degrees; and a 40 percent rating for ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. See 38 C.F.R. § 4.71a. Diagnostic Code 5271 evaluates range of motion in the ankle. A 10 percent rating is assigned for moderate limitation of motion. A 20 percent rating is assigned for marked limitation of motion. Diagnostic Code 5272 concerns ankylosis of the subastragalar or tarsal joint of the ankle. No VA examiner has diagnosed ankylosis of the subastragalar or tarsal joint, and VA treatment records do not suggest the presence of ankylosis of the subastragalar or tarsal joint. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5273 addresses malunion of the os calcis or astragalus. The medical record does not document malunion of the os calcis or astragalus of the left ankle. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Diagnostic Code 5274 evaluates astragalectomy, or removal of the talus bone. The medical record does not document removal of the talus bone of the left ankle. Therefore, this Diagnostic Code is not applicable and will not be discussed further. Ankle dorsiflexion is measured from 0 degrees to 20 degrees; plantar flexion is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The Veteran was afforded a VA examination in September 2019. She reported constant right ankle pain, rated as 8/10, which increased with getting out of bed and walking. She also reported being unable to walk farther than one block or drive further than 2 miles before the pain increases to 10/10. She reported flare-ups when she walked more than one block. On examination, she showed dorsiflexion to 0 degrees and plantar flexion to 5 degrees, with pain noted on examination. She was able to perform repetitive-use testing, with no additional loss in terms of range of motion. The examiner opined that during a flare-up the Veteran would not have range of motion in her ankle, in either plane of motion. Muscle strength testing showed 4/5 strength in plantar flexion and 1/5 in dorsiflexion. There was no evidence of ankylosis or malunion of the os calcis or astragalus. There was no evidence of abduction, adduction, inversion, or eversion deformity. The Veteran indicated that she constantly used a brace, occasionally used crutches, used a cane on a regular basis, and occasionally used a walker. The examiner indicated that the Veteran's right ankle was so diminished that amputation with prosthesis would equally serve the Veteran because the Veteran had severely truncated range of motion in her right ankle and was unable to walk for more than one block. The Veteran was afforded a VA examination in October 2019. The Veteran reported right ankle pain with prolonged walking, pain with weight-bearing, and pain with range of motion. She reported that her right ankle limits how much walking she could do. On examination, she showed dorsiflexion to 10 degrees and plantar flexion to 20 degrees, with pain noted on examination. She was able to perform repetitive-use testing, with no additional loss in terms of range of motion. Muscle strength testing showed 4/5 strength in plantar flexion and 4/5 in dorsiflexion. There was no evidence of ankylosis or malunion of the os calcis or astragalus. There was no evidence of abduction, adduction, inversion, or eversion deformity. The Veteran reported regularly using a wheelchair, constantly using a brace, and regularly using a cane. A review of the Veteran's VA treatment records, during the period on appeal does not contain any findings of ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. Here, the Veteran has not shown the criteria for a rating in excess of 30 percent. To warrant a 40 percent rating for a right ankle disability, the Veteran would need to show ankylosis in plantar flexion at more than 40 degrees, or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. There are no clinical findings of record which show such results. Although the Veteran has been assigned a 30 percent rating, under Diagnostic Code 5270, she has not otherwise shown the requisite findings for a 40 percent rating. The Board notes that none of the other Diagnostic Codes have been discussed because the Veteran's 30 percent rating is higher than the other Diagnostic Codes associated with the ankle. Accordingly, a rating in excess of 30 percent for a right ankle disability is denied. 4. TDIU The Veteran testified that she has not worked since 2006. As such, the Board takes jurisdiction of the issue of entitlement to a TDIU because it is part and parcel to the issues on appeal. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). Here, the Veteran has been in receipt of a combined 100 percent rating since January 1, 2019; and has been assigned a single 100 percent rating for PTSD alone since May 4, 2020. A TDIU rating is contingent on the schedular rating being less than total. 38 C.F.R. § 4.16 (a). However, in Bradley v. Peake, 22 Vet. App. 280 (2008), the United States Court of Appeals for Veterans Claims (Court) held that the issue of entitlement to a TDIU may not be moot based on the assignment of a total schedular rating under certain circumstances, in particular where special monthly compensation (SMC) could be awarded based on the consideration of a TDIU rating under 38 U.S.C. § 1114 (s). See also Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2011). Although no additional disability compensation may be paid when a total schedular disability rating is already in effect, the Court's decision in Bradley recognizes that a separate award of a TDIU predicated on a single disability may form the basis of an award of SMC. The Board notes that a February 2021 rating decision found that a TDIU was moot because her service-connected disabilities were evaluated as 100 percent disabling. However, VA regulations allow for benefits in addition to a 100 percent rating in certain circumstances. Most frequently, SMC is available for an appellant with a single service-connected disability rated at 100 percent and additional, separate, disabilities independently ratable at 60 percent or more. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). As such, in this Veteran's case, the Board finds that entitlement to TDIU is not moot, as a TDIU based on a single service-connected disability could serve as a single disability rated as total for purposes of an award of SMC at the housebound rate, during the period on appeal in which the Veteran has not been awarded SMC (February 1 to March 31, 2019, and as of May 4, 2020). It is not disputed that the Veteran's right ankle disability has caused her significant impairment. For example, the Veteran testified that she was trained in two different fields, cosmetology and in the medical field. Regarding cosmetology, she testified that she could not perform such a job because she could not stand for any period of time. Regarding the medical field, she reported that her right ankle gave her problems, and she actually dropped a patient. The incident caused her to be called before a medical board, which ended her medical career. Here, the Board believes that the Veteran's right ankle disability, hinders her ability to work as a cosmetologist and in the medical field. However, the evidence of record that may be considered, does not show that the Veteran's right ankle alone rendered her unable obtain or maintain substantially gainful employment. It is true that the Veteran's right ankle disability causes impairment, even significant impairment. It is also acknowledged that the Veteran has not been employable during the course of this appeal. However, this was due to the combination of a number of service connected disabilities, not just her ankle. It is noted that while the Veteran experienced difficulty standing and walking for periods of time, she is also service connected for a number of lower extremity disabilities including hip and knee disabilities and peripheral neuropathy in her left lower extremity. This suggests that there are multiple orthopedic impairments which factor into limiting her. She is also service connected for asthma which might serve to limit mobility. The Veteran testified that her right ankle disability significantly limited her ability to both stand and walk, and would also further limit her ability to carry things because she testified that her ankle is not stable and causes to her fall on occasion. However, there is no showing that the Veteran could not have been retrained for a sedentary job (which the Board takes to have the common meaning in society of non-physical, white collar, office-type work) based solely on her right ankle disability. Accordingly, TDIU is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, 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.