Citation Nr: 21067177
Decision Date: 11/03/21	Archive Date: 11/03/21

DOCKET NO. 17-50 317
DATE: November 3, 2021

ORDER

Entitlement to service connection for hypertension, as due to in-service exposure to herbicide agents, is granted.

Subject to the law and regulations governing the award of monetary benefits, entitlement to an initial 50 percent rating for peripheral neuropathy of the right upper extremity is granted.

Subject to the law and regulations governing the award of monetary benefits, entitlement to an initial 40 percent rating for peripheral neuropathy of the left upper extremity is granted.

Entitlement to an initial rating in excess of 40 percent for peripheral neuropathy of the left lower extremity is denied.

Entitlement to an initial rating in excess of 40 percent for peripheral neuropathy of the right lower extremity is denied.

Prior to August 13, 2018, entitlement to a compensable rating for scars on the bilateral upper extremities is denied.

From August 13, 2018, entitlement to compensable rating for scar on the left upper extremity is denied.

From August 13, 2018, entitlement to a compensable rating for scar on the right upper extremity scar is denied.

Entitlement to a rating in excess of 30 percent for throat cancer residuals is denied.

FINDINGS OF FACT

1. The preponderance of the evidence supports a nexus between the Veteran's hypertension and his in-service exposure to herbicide agents. 

2. The peripheral neuropathy of the Veteran's right and left upper extremities more nearly approximates severe incomplete paralysis of the median nerve.  

3. The peripheral neuropathy of both of the Veteran's lower extremities manifested to no more than moderately severe incomplete paralysis of the sciatic nerve. 

4. Prior to August 13, 2018, the Veteran's bilateral upper extremity scars were not painful, unstable, or have not covered 144 square inches (929 sq. cm.) or greater.

5. From August 13, 2018, the Veteran's left and right upper extremity scars are not painful, unstable, or have not covered 144 square inches (929 sq. cm.) or greater.

6. The Veteran's residuals of throat cancer have predominantly been manifested by chronic laryngitis manifested by hoarseness.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for hypertension, as a result of in-service exposure to herbicide agents, have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.307. 3.309.

2. The criteria for entitlement to an initial 50 percent rating for peripheral neuropathy of the right upper extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8515.

3. The criteria for entitlement to an initial 40 percent rating for peripheral neuropathy of the left upper extremity have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8515.

4. The criteria for entitlement to an initial rating in excess of 40 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520.

5. The criteria for entitlement to an initial rating in excess of 40 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.124a, Diagnostic Code 8520.

6. The criteria for entitlement to a compensable rating for scars on bilateral upper extremities prior to August 13, 2018 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805.

7. The criteria for entitlement to a compensable rating for scar on the left upper extremity from August 13, 2018 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805.

8. The criteria for entitlement to a compensable rating for scar on the right upper extremity scar from August 13, 2018 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805.

9. The criteria for entitlement to a rating in excess of 30 percent for residuals of throat cancer have not been met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. § 4.97, Diagnostic Code 6819-6516.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from April 1966 to March 1969. This current appeal to the Board of Veteran's Appeals (Board) arose from multiple rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). 

In a November 2020 letter captioned "Cancellation of Limited Power of Attorney" (Cancellation), the Veteran's attorney attempted to withdraw representation of the Veteran. However, neither the cover letter nor the Cancellation satisfy the requirements of 38 C.F.R. § 20.6 (Withdrawal of services by a representative). This "cancellation" does not specify the reasons for requesting such withdrawal. The Board finds that this does not satisfy the good cause provision of 38 C.F.R. § 20.6. Also, the record does not reflect that the attorney submitted a "signed statement certifying that a copy of the motion was sent by first-class mail, postage prepaid, to the appellant, setting forth the address to which a copy was mailed." Id.  While a notation "CF: VETERAN" in the lower left corner of the November 2020 letter may suggest that the attorney provided the Veteran with a copy of the November 2020 letter and Cancellation, the notation falls far short of the mandate set forth under 38 C.F.R. § 20.6(a)(2). Because the Board has jurisdiction over these issues and the attorney's motion to withdraw does not satisfy the requirements of 38 C.F.R. § 20.6(a)(2), the attorney retains such status until such time that an adequate motion is filed and the Board grants such motion.

In April 2019, the Board remanded the claims for service connection for hypertension, entitlement to increased ratings for bilateral lower and upper extremity peripheral neuropathy, and entitlement to a TDIU rating for further evidentiary development. In June 2020, the Agency of Original Jurisdiction (AOJ) granted entitlement to a TDIU rating from February 16, 2016, which is for the entire appeal period. Therefore, the award is considered a full grant of benefits and is no longer an issue before the Board.

The Veteran also appealed entitlement to earlier effective dates pertaining to peripheral neuropathy of the lower and both upper extremities. Issues regarding earlier effective dates for the award of the 40 percent ratings for bilateral lower extremity peripheral neuropathy was decided in June 2020.  As to earlier effective dates for the award of service connection bilateral upper extremity peripheral neuropathy, in March 2020, the AOJ granted an earlier effective date of February 16, 2016 for this disability. This is considered a full grant of benefits and no longer before the Board for appellate consideration.

Lastly, the Veteran also indicated disagreement with the effective date of the award as it pertains to his residuals of throat cancer. This was not addressed in the March 2020 Statement of the Case (SOC) and is not an issue perfected and certified for appeal. However, as will be explained, this issue is not legally cognizable. 

In the October 2018 rating decision, which the Veteran appealed, the AOJ continued a 30 percent rating for residuals of throat cancer, based on his filing of an increased rating for his disabilities (filed a TDIU claim and construed as increased rating claim). This rating was continued for the entire initial rating period. There was no new rating assigned or a staged rating created for this disability. Therefore, the Board construes the noted disagreement with the effective date of the award as expressing disagreement with the date of the award of service connection for residuals for throat cancer.

Once a rating decision that establishes an effective date becomes final, the only way that such a decision can be revised is if it contains clear and unmistakable error (CUE). Rudd v. Nicholson, 20 Vet. App. 296, 299-300 (2006). Any other result would vitiate the rule of finality. Indeed, there is no valid freestanding claim for an earlier effective date. If a freestanding claim for an earlier effective date is raised, an appeal in the matter should be dismissed. Id. Claimants may not file a freestanding earlier effective date claim in order to overcome the finality of the rating decision assigning the effective date. The only way to challenge an effective date assigned in a final rating decision is to raise CUE. See id; see also DiCarlo v. Nicholson, 20 Vet. App. 52, 56-57 (2006) (discussing the types of collateral attack authorized to challenge a final decision by the VA Secretary).

The Veteran was awarded service connection for residuals of throat cancer in September 2008. He was then awarded 10 percent for the entire initial rating period in May 2009. He was then awarded a 30 percent rating for the entire initial rating period in June 2010.  He did not appeal that decision or the effective date of the award. As he did not appeal the rating decision for which service connection was initially granted, it is final on the issue of the assigned effective date of February 8, 2008 for the award of service connection for the residuals of throat cancer. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The only way he can prevail in his claim for an earlier effective date is to establish there was clear and unmistakable error (CUE) in a prior final rating decision, which has not been filed in this matter.

Service connection  Hypertension

The Veteran seeks service connection for hypertension. The evidence of the record establishes that he has a current diagnosis of hypertension.

A veteran is granted service connection where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service.  38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in service injury or event; and (3) a nexus between the current disability and the in service injury or event.  38 C.F.R. § 3.303(a).

Regarding an in-service injury or event, the Veteran asserts that he developed hypertension as a result of his exposure to herbicide agents while serving in Vietnam. He has verified Vietnam service during the applicable time period in which herbicide agents were used. Thus, exposure to herbicide agents is conceded. 

Service connection based on herbicide agent exposure will be presumed for certain specified diseases that become manifest to a compensable degree within a specified period in the case of certain diseases. 38 U.S.C.§ 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Although hypertension is not among the diseases listed in the regulations, service connection can still be warranted on a direct basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994).

Regarding whether there is a nexus, the March 2020 VA examiner opined that it was at least as likely as not that the Veteran's hypertension was due to his in service exposure to herbicide agents. The examiner stated that the VA research center linked exposure to herbicide agents and hypertension and cited medical articles discussing the link.

Additionally, the Board takes judicial notice of the existence of the finding by the National Academies of Sciences, Engineering and Medicine (NAS) that there is sufficient evidence of an association between hypertension and exposure to Agent Orange and other herbicides used during the Vietnam War.  See Veterans and Agent Orange: Update 11 (2018); Smith v. Derwinski, 1 Vet. App. 235, 238 (1991) (regarding judicial notice); see generally Polovick v, Shinseki, 23 Vet. App. 48, 54 (2009) (NAS's statistical analysis of the scientific and medical data pertaining to the health effects of Agent Orange exposure remains a source of relevant, competent evidence that VA may "consider when assessing whether the totality of the evidence is sufficient to establish service connection on a direct basis").

After a thorough consideration of the evidence of the record, the Board finds that preponderance of the evidence supports a nexus between the Veteran's hypertension and his service, specifically his presumed herbicide agent exposure. The VA examiner provided a positive nexus opinion and referenced medical literature that discussed the association for support. Considering this opinion with the 2018 NAS finding, the Board finds that nexus has been established. In sum, the Board finds that the criteria to service connection for hypertension, as a result of in-service herbicide agent exposure have been met.  Entitlement to service connection for hypertension is, thus, warranted.

Entitlement to initial ratings in excess of 30 percent for peripheral neuropathy of the right upper extremity & in excess of 20 percent for peripheral neuropathy of the left upper extremity

The Veteran seeks higher ratings for the peripheral neuropathy of his upper extremities, evaluated under Diagnostic Code 8515. This Diagnostic Code provides ratings for paralysis of the median nerve. Mild incomplete paralysis is rated 10 percent disabling on the major side and 10 percent on the minor side. Moderate incomplete paralysis is rated 30 percent disabling on the major side and 20 percent on the minor side. Severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side.  Complete paralysis of the median nerve, with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb at right angles to palm; flexion of wrist weakened; pain with trophic disturbances, is rated 70 percent disabling on the major side and 60 percent on the minor side.  The term "incomplete paralysis" with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.

In this matter, the Veteran is right handed. Therefore, his major side is his right upper extremity, and his minor side is his left upper extremity. According to the relevant evidence of the record, on the August 2017 VA Examination, the Veteran reported dropping spoons and being unable to feel things in his hands. He also had difficulties writing, brushing teeth, and combing his hair. He was not able to tie his shoes. He experienced moderate constant pain, moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness. Muscle strength was normal. He did not have muscle atrophy in the upper extremities. Reflex examination yielded normal results. He had decreased sensation in the inner/outer forearm and absent sensation in the hands/fingers. He had moderate incomplete paralysis of the median nerve for both upper extremities. 

On the August 2018 VA Examination, the Veteran experienced moderate constant pain, severe intermittent pain, severe paresthesias/dysesthesia, and severe numbness in the upper extremities. Muscle strength was reduced pertaining to wrist flexion, grip, and pinch. Muscle atrophy was not present. Reflex examination yielded normal results for the upper extremities. Sensations were decreased. Phalen's sign and Tinel's sign tests were positive. He had moderate incomplete paralysis of the median nerve. The examiner remarked that the Veteran's bilateral upper extremity neuropathy was "moderately severe."

After a thorough consideration of the evidence of the record, the Board finds that the severity of the Veteran's symptoms is depictive of both moderate and severe incomplete paralysis. Although moderate incomplete paralysis of the median nerve was noted, so too has severe numbness and paresthesias. Indeed, he describes dropping items and not being able to feel items in his hands. The 2018 examiner noted that the Veteran had moderately severe neuropathy of both upper extremities. Unlike Diagnostic Code 8520 (paralysis of the sciatic nerve), Diagnostic Code 8515 does not have a rating criteria that specifically contemplates "moderately severe" incomplete paralysis. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Therefore, based on the evidence, resolving doubt in favor of the Veteran, the Board determines that the Veteran is entitled to a 50 percent rating for his right upper extremity, and 40 percent for his left upper extremity, under Diagnostic Code 8515 for severe incomplete paralysis. 

The evidence does not depict that the Veteran exhibits complete paralysis of the median nerve, or exhibits any muscle atrophy, pain with trophic changes, or the other disabling effects noted in the criteria. Therefore, higher ratings than those assigned herein in this matter are not warranted.  The resulting limitations will now be adequately contemplated by the higher ratings assigned in this decision. In summation, for the entire initial rating period, the Veteran is entitled to a 50 percent rating for his right upper extremity peripheral neuropathy, and a 40 percent rating for his left upper extremity peripheral neuropathy.

Entitlement to a rating in excess of 40 percent for peripheral neuropathy of each lower extremity

The Veteran seeks higher ratings for his bilateral lower extremity peripheral neuropathy. They are both rated at 40 percent disabling under Diagnostic Code 8520. This Diagnostic Code provides ratings for paralysis of the sciatic nerve. Mild incomplete paralysis is rated 10 percent disabling. Moderate incomplete paralysis is rated 20 percent disabling. Moderately severe incomplete paralysis is rated 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling.  

At the August 2017 VA examination, the Veteran reported the inability to use stairs because of numbness in his feet. He experienced moderate constant pain, moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness. Muscle strength was noted to be normal. Muscle atrophy was noted, explained as his left calf being smaller than the right. The normal side was 37 cm, and the atrophied side was 32 cm. Reflex examination yielded normal results. He experienced decreased and absent sensations. Trophic changes were described as loss of hair from mid shins down to the toes. His gait was normal. He had moderately severe incomplete paralysis of the sciatic nerve, and he constantly used a walker as an assistive device. 

On the August 2018 VA examination, the Veteran experienced moderate constant pain, moderate intermittent pain on the right, severe intermittent pain on the left, moderate paresthesias on the right, severe on the left, and moderate numbness on the right and severe numbness on the left. There was reduced muscle strength noted on the left. Muscle atrophy was not present. Reflexes were hypoactive on the left. Sensations were decreased. The Veteran presented with an abnormal gait, described as wide based gait favoring the left. The Veteran had moderately severe incomplete paralysis of the sciatic nerve. 

After a thorough consideration of the evidence of the record, the Board finds that the Veteran's bilateral lower extremity peripheral neuropathy is adequately contemplated by the current 40 percent ratings. Higher evaluations of 60 percent are not warranted. The evidence does not depict the severity of the Veteran's condition to be severe. Specifically, while he has experienced severe intermittent pain, paresthesias or dysesthesias, and numbness, the severity of his neuropathy has been determined to be moderately severe. 

On the August 2017 examination, muscle atrophy was noted regarding the Veteran's calves. The 5 cm difference was not noted to be characterized as marked muscle atrophy, which is required for the assignment of the 60 percent rating. Furthermore, muscle atrophy was not present at the subsequent examination. While the evidence shows that the Veteran has some absent reflexes and sensations in some areas, he does not exhibit entirely absent reflexes and sensations that would depict severe paralysis. The absent and decreased sensations and reflexes that have been noted are adequately contemplated by the current 40 percent rating, which evaluates moderately severe incomplete paralysis.

While the Board is sympathetic to the Veteran's claim, the preponderance of the evidence is against a rating in excess of 40 percent for peripheral neuropathy for either lower extremity. The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against this increased rating claim, the doctrine is not applicable.

Prior August 13, 2018, entitlement to a compensable rating for scars of the upper extremities

Entitlement to compensable ratings for a scar on each upper extremity from August 13, 2018

The Veteran seeks a higher rating for scars on his upper extremities. Prior to August 13, 2018, his scars were rated bilaterally (together) under Diagnostic Code 7805. From August 13, 2018, the scars were rated separately (left and right), pursuant to the amendments made to the criteria, under Diagnostic Code 7802.

Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118.

As mentioned previously, the rating criteria for evaluating skin disorders under 38 C.F.R. § 4.118 were amended effective August 13, 2018. 83 Fed. Reg. 32593 (July 13, 2018). When a law or regulation changes during the course of a claim, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327.

Diagnostic Code 7802 was amended to state that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Note 2 instructs that a separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code.

Turning now to the relevant evidence of the record, on the August 2017 VA Examination, it was noted that the Veteran had scars, but they were not painful, unstable or the total area of all related scars greater than or equal 39 square cm. On the August 2018 VA Examination, the Veteran right wrist scar was measured to be length 2.5cm in length and 0.1cm in width, and his left wrist scar was measured to be 4 cm in length and 0.1 cm in width. The scars were not painful, unstable, or had a total area equal to or greater than 39 square cm. 

Based on the evidence of the current record, the Veteran is not entitled to a compensable rating for his scars, under Diagnostic Codes 7801, 7802, 7804, or 7805, for any time during the appeal period. The scars have not been shown to be painful, unstable, or cause limited range of motion and are not associated with any underlying soft tissue. Also, the measurements of the scars do not warrant a compensable rating. These scars have not been attributed to limited motion or any other disabling effects. In summation, the preponderance of the evidence is against the assignment of compensable ratings for scars on the right and left upper extremity. The Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, the doctrine is not applicable.

Entitlement to a rating in excess of 30 percent for residuals of throat cancer

The Veteran seeks a higher rating for his residuals of throat cancer. This condition is rated by analogy under hyphenated diagnostic codes 6819-6516. Diagnostic Code 6819 evaluates malignant neoplasms of the respiratory system. A 100 percent disability rating is warranted for malignant neoplasms of the respiratory system. The 100 percent rating shall continue beyond the cessation of any surgical, X-ray, antineoplastic chemotherapy or other therapeutic procedure. Six months after the discontinuance of such treatment, the appropriate disability rating is determined by mandatory VA examination. If there has been no local recurrence or metastasis, the rating is based on residuals. 38 C.F.R. § 4.97, Diagnostic Code 6819.

Under Diagnostic Code 6516, chronic laryngitis manifested by hoarseness with inflammation of cords or mucous membrane is rated as 10 percent disabling and chronic laryngitis manifested by hoarseness, with thickening or nodules of cords, polyps, submucous infiltration or pre-malignant changes on biopsy is rated as 30 percent disabling. The 30 percent rating is the maximum rating under this Diagnostic Code. 38 C.F.R. § 4.97.

According to the report of the August 2018 VA Examination, the Veteran developed carcinoma of the larynx in 2009. He remained free of carcinoma since then and presented (to the examination) with a coarse voice. He had mild thickening of vocal cords and coarse voice as a residual of his carcinoma. The examiner stated that, although the Veteran had a coarse voice, he was easily understood. He had mild chronic laryngitis as a product of radiation.

Upon careful review of the evidence of record, the Board finds that the objective medical evidence supports that the Veteran's predominant symptoms have been manifested by coarse voice, mild thickening of vocal cords, and chronic laryngitis. As there have been no local recurrence or metastasis since 2009, the assigned rating will be based on residuals. In this regard, the Board notes that the Veteran is in receipt of the maximum schedular rating under Diagnostic Code 6516 for chronic laryngitis. 

The Board has considered the propriety of other related diagnostic codes. However, the medical evidence does not show or indicate that the Veteran has tuberculosis laryngitis (DC 6515), a total or partial laryngectomy (DC 6518), or stenosis of the larynx (DC 6520).  Thus, higher ratings under those codes are not warranted. Regarding aphonia, although the Veteran exhibited a coarse voice, the examiner indicated that he was easy to understand. There is no evidence that indicates or suggests that the Veteran is unable to speak above a whisper. Therefore, a higher rating under Diagnostic 6519 is not warranted in this matter. 

The Veteran's attorney asserts that the Veteran is entitled to a higher rating on an extraschedular basis.  Specifically, the attorney states that related factors of this disability created marked interference with the Veteran's employment or frequent periods of hospitalization. However, the evidence of record does not depict an exceptional disability picture regarding the Veteran's residuals of throat cancer. There was no functional impact noted regarding this disability, and there is no medical or lay evidence indicating symptoms not contemplative of the current diagnostic code. As stated, his symptoms have been coarse voice and thickening of cords, which is contemplated by Diagnostic Code 6516. Thus, based on the current evidence of the record, referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008).

The Board is sympathetic to the Veteran's claim. However, the preponderance of the evidence is against the assignment of a higher rating for residuals of throat cancer. The Board has considered the applicability of the benefit of the doubt doctrine.  However, as the preponderance of the evidence is against the claim, the doctrine is not applicable.  

 

 

THERESA M. CATINO

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Middleton, 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.