Citation Nr: 21067351 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 19-20 022 DATE: November 4, 2021 ORDER Entitlement to compensation under 38 U.S.C. §1151 for amputation, second and third toe, left foot is denied. Entitlement to compensation under 38 U.S.C. §1151 for amputation, first and second toe, right foot is denied. Entitlement to compensation under 38 U.S.C. §1151 for proliferative diabetic retinopathy (claimed as left eye condition due to botched laser eye surgery) is denied. Entitlement to service connection for amputation, second and third toes, left foot is denied. Entitlement to service connection for amputation, first and second toe, right foot is denied. Entitlement to service connection for proliferative diabetic retinopathy is denied. FINDINGS OF FACT 1. The Veteran's amputation, second and third toe, left foot is not shown to be proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, and is not the result of an event that was not reasonably foreseeable. 2. The Veteran's amputation, first and second toe, right foot is not shown to be proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, and is not the result of an event that was not reasonably foreseeable. 3. The Veteran's proliferative diabetic retinopathy (claimed as left eye condition due to botched laser eye surgery) is not shown to be proximately caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of VA fault, and is not the result of an event that was not reasonably foreseeable. 4. The preponderance of the evidence is against finding that amputation, second and third toes, left foot, during active service, or is otherwise related to an in-service event, injury, or disease. 5. The preponderance of the evidence is against finding that amputation, first and second toes, right foot, began during active service, or is otherwise related to an in-service event, injury, or disease. 6. The preponderance of the evidence is against finding that proliferative diabetic retinopathy began during active service, or is otherwise related to an in-service event, injury, or disease. CONCLUSIONS OF LAW 1. The criteria for compensation under 38 U.S.C. §1151 for amputation, second and third toe, left foot have not been met. 38 U.S.C. §§ 1151, 1718, 5107; 38 C.F.R. §§ 3.102, 3.361. 2. The criteria for compensation under 38 U.S.C. §1151 for amputation, first and second toe, right foot have not been met. 38 U.S.C. §§ 1151, 1718, 5107; 38 C.F.R. §§ 3.102, 3.361. 3. The criteria for compensation under 38 U.S.C. §1151 for proliferative diabetic retinopathy (claimed as left eye condition due to botched laser eye surgery) have not been met. 38 U.S.C. §§ 1151, 1718, 5107; 38 C.F.R. §§ 3.102, 3.361. 4. The criteria for service connection for amputation, second and third toes, left foot have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 5. The criteria for service connection for amputation, first and second toe, right foot have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. 6. The criteria for service connection for proliferative diabetic retinopathy have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the Navy from December 1957 to November 1961. 1151 Eligibility Under certain circumstances, VA provides compensation for additional disability resulting from VA medical treatment in the same manner as if such disability were service-connected. For a claimant to qualify for such compensation, the additional disability must not be the result of the veteran's willful misconduct. When additional disability is caused by VA hospital care, medical or surgical treatment, or examination, the proximate cause of the additional disability must be: (A) carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing the care, treatment, or examination; or (B) an event not reasonably foreseeable. 38 U.S.C. § 1151; see also 38 C.F.R. § 3.361. The United States Court of Appeals for Veterans Claims (Court) has indicated that Section 1151 claims for additional disability are treated similarly to claims for service connection. See Jones v. West, 12 Vet. App. 383 (1999); Boggs v. West, 11 Vet. App. 334 (1998). Hence, to establish entitlement, there must be (1) medical evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of incurrence or aggravation of an injury as the result of hospitalization, medical or surgical treatment; and (3) competent evidence of a nexus between that asserted injury or disease and the current disability. To determine whether a veteran has additional disability, VA compares the veteran's condition immediately before the beginning of the medical care or examination to the veteran's condition after such care or examination. 38 C.F.R. § 3.361 (b). VA considers each involved body part or system separately. Id. In Viegas v. Shinseki, the United States Court of Appeals for the Federal Circuit (Federal Circuit Court) noted that Section 1151 delineates three prerequisites for obtaining disability compensation. First, a claimant must incur a "qualifying additional disability" that was not the result of his own "willful misconduct." 38 U.S.C. § 1151 (a). Second, that disability must have been "caused by hospital care, medical or surgical treatment, or examination furnished the veteran" by VA or in a VA facility. Finally, the "proximate cause" of the veteran's disability must be "carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault" on the part of VA, or "an event not reasonably foreseeable." See Viegas v. Shinseki, 705 F.3d 1374 (Fed. Cir. 2013); §§ 1151(a)(1)(A), 1151(a)(1)(B). Thus, Section 1151 contains two causation elements - a veteran's disability must not only be caused by the medical care he received from VA, but also must be proximately caused by the VA's fault or by an unforeseen event. Section 1151 does not extend to the "remote consequences" of VA medical treatment, and a veteran is not entitled to obtain section 1151 disability benefits simply because he was in a VA medical facility at the time he sustained an injury. Viegas, supra, citing Brown v. Gardner, 513 U.S. 115, 119, 115 S. Ct. 552, 130 L. Ed.2d 462 (1994). However, the Federal Circuit Court stated in Viegas that "Congress intended to encompass not simply the actual care provided by VA medical personnel, but also treatment-related incidents that occur in the physical premises controlled and maintained by the VA." Id. at 1378 (Fed. Cir. 2013). In determining whether a veteran's disability was actually caused by VA medical treatment, only a causal connection, and not direct causation, is required. Viegas, 705 F.3d at 1380; see also Brown v. Gardner, 513 U.S. 115, 119 (1994). However, a mere showing of additional disability after VA treatment will not establish cause. The evidence must show that the treatment resulted in the veteran's additional disability. 38 C.F.R. § 3.361 (c)(1). The proximate cause of disability is the action or event that directly caused the disability, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361 (d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA's part in furnishing medical treatment or examination proximately caused a veteran's additional disability, it must be shown that the medical treatment or examination caused the veteran's additional disability and (1) VA failed to exercise the degree of care that would be expected of a reasonable health care provider, or (2) VA furnished the hospital care, medical or surgical treatment, or examination without the veteran's or, in appropriate cases, the veteran's representative's, informed consent. 38 C.F.R. § 3.361 (d)(1). Whether the proximate cause of a veteran's additional disability was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. 38 C.F.R. § 3.361 (d)(2). The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. Id. In determining whether an event was reasonably foreseeable, VA will consider whether the risk of that event was the type of risk that a reasonable health care provider would have disclosed in connection with the informed consent procedures of 38 C.F.R. § 17.32. 38 C.F.R. § 3.361(d)(2). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Entitlement to compensation under 38 U.S.C. §1151 for amputation, second and third toe, left foot The Veteran contends that his left foot injury is the result of toenail trimming while under VA care. A January 2015 VA treatment note indicates the Veteran came in for a "blister on his left toe" with "recent h/o nail cutting" and "has had a blister with erythema." In November 2017, a VA opinion on the matter was provided. The examiner opined that it was less likely than not that the Veteran's toe infection was caused or worsened by VA treatment. The rationale provided was: Veteran was seen in wound clinic 01/13/2015 for an ulceration of the left hallux (great toe). The note recorded "...blister on his left first toe; + recent h/o nail cutting." Examination revealed "tip of the toe with an ulcer with a small blister in the middle". The area was cleaned in clinic. Three weeks later an additional ulcer was noted on the plantar/lateral aspect of the toe. The lesions progressed, osteomyelitis was diagnosed and treated. The hallux lesions healed but the veteran developed ulcerations of the 2nd and 3rd toes of the left foot, leading to partial amputations. In all of the lesions, healing was believed to be delayed due to unintended trauma secondary to the veteran's severe diabetic peripheral neuropathy. A convincing causal relationship between nail trimming in podiatry clinic and the development of the 2nd and 3rd toe ulcerations cannot be established from available records. He did have his toenails trimmed in podiatry clinic in December 2014, preceding the development of the right great toe ulceration that subsequently healed. Associating the other ulcerations with antecedent nail trimming in clinic is not possible. The veteran's toe ulcerations leading to amputations were caused by his diabetes mellitus and consequent vascular disorders and peripheral neuropathy. In June 2019, an additional VA opinion on the matter was provided. The examiner opined that it was less likely than not that the Veteran's toe infection was caused or worsened by VA treatment. The rationale provided was: I have reviewed all relevant clinical documentation and the veteran's testimony in the 03/27/2018 hearing. The veteran's contention of a causal role for toenail trimming most clearly applies to his left foot, although he did not specify laterality in his testimony. Dr. [G] note of 01/13/2015 mentions: "- comes in today as he has a blister on his left 1st toe - + recent h/o nail cutting - has had a blister with erythema - which has improved somewhat today since yesterday". The toenail cutting had occurred 12/15/2014; the note by Dr. [S] for that visit mentions: "-debridement of callous and toe nails x 8. pt states he already feels much better after the debridement". No mention is made of any trauma to the toes during the toenail cutting. The veteran's testimony and the lack of corroboration by available clinical records do not constitute a rationale for amending my 11/25/2017 medical opinion. The VA performed amputations that were necessitated by ulceration resulting from severe diabetes mellitus; the standard of care was met; there were no unforeseeable complications; and the care was meticulously thorough and timely. At the outset, the Board notes that the evidence does not show that the Veteran's left foot injuries were due to either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or, an event not reasonably foreseeable. In particular, the VA examiners of record further that it was less ess likely than not that the Veteran's toe infection was caused or worsened by VA treatment. Specifically, the examiner recounted all of the medical care received by the Veteran related to his injury and found that the care was meticulously thorough and timely. Further, the Board notes that the evidence of record is silent for any medical opinion stating otherwise. Accordingly, the criteria for an §1151 claim are not met, and the claim must be denied. Entitlement to compensation under 38 U.S.C. §1151 for amputation, first and second toe, right foot The Veteran contends that his right foot injury is the result of toenail trimming while under VA care. A July 2011 VA treatment note indicates the Veteran underwent amputation of his right great toe for a nonhealing would with suspected osteomyelitis. In November 2017, a VA opinion on the matter was provided. The examiner opined that it was less likely than not that the Veteran's toe amputation was caused or worsened by VA treatment. The rationale provided was: Veteran underwent amputation of the right hallux (great toe) at VA Togus on 07/01/2011, for a nonhealing wound with suspected osteomyelitis in the context of longstanding diabetes with multiple vascular complications. There is no documentation of any difficulties or mishaps during the surgical procedure. Veteran was followed closely in wound clinic and in podiatry clinic following the operation. He manifested the expected immediate post-operative course for such a procedure: some necrotic areas of the flap, with some purulent drainage. The wound healed slowly but satisfactorily. He developed a foot ulcer 5 months later and underwent a partial 1st metatarsal bone resection in December 2011. The adjacent toe was amputated in 2013, also for ulceration and infection. The veteran's foot condition of recurrent ulceration and infection has been caused by his diabetes mellitus; it is less likely than not that his condition has been caused or worsened by his VA care, which has been attentive and thorough. In June 2019, an additional VA opinion on the matter was provided. The examiner opined that it was less likely than not that the Veteran's toe amputation was caused or worsened by VA treatment. The rationale provided was: I have reviewed all relevant clinical documentation and the veteran's testimony in the 03/27/2018 hearing. The veteran did not provide clear testimony regarding dates or laterality, but I have tried to reconcile his testimony with available clinical records. Medical records reviewed through JLV do not support the veteran's contention that the problem in either foot was caused by injury during toenail trimming. Dr. [G] notes beginning 04/22/2011 make it clear that the right toe ulceration began with blunt trauma incurred while accidently kicking a board. She closely followed the ulcer and debrided the scar; that procedure may have been confused by the veteran with toenail trimming. I see no reason to amend my 11/25/2017 medical opinion regarding the right foot: the VA clearly performed the amputations; the appropriate standard of care was followed; there were no unforeseeable occurrences causing additional disability; and the care was timely and highly attentive. At the outset, the Board notes that the evidence does not show that the Veteran right foot injuries were due to either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or, an event not reasonably foreseeable. In particular, the VA examiners of record further that it was less likely than not that the Veteran's right toe amputation was caused or worsened by VA treatment. Specifically, the examiner recounted all of the medical care received by the Veteran related to his injury and found that the care was meticulously thorough and timely. Further, the Board notes that the evidence of record is silent for any medical opinion stating otherwise. Accordingly, the criteria for an §1151 claim are not met, and the claim must be denied. Entitlement to compensation under 38 U.S.C. §1151 for proliferative diabetic retinopathy (claimed as left eye condition due to botched laser eye surgery) The Veteran contends that his eye condition is the result of a botched laser eye surgery while under VA care. August 1998 VA treatment records indicate the Veteran underwent panretinal photocoagulation with no documentation of any issues at the time. In November 2017, a VA opinion on the matter was provided. The examiner opined that it was less likely than not that the Veteran's eye condition was caused or worsened by VA treatment. The rationale provided was: Veteran has diabetes mellitus of long standing with multiple macrovascular and microvascular complications. He has proliferative diabetic retinopathy with a history of vitreous hemorrhage. He underwent panretinal photocoagulation at VA Boston 08/27/1998. The eye DBQ of 11/08/2017 states that the veteran also underwent photocoagulation around the same time from an outside ophthalmologist; I have not found that documentation. A VA Boston retina clinic note 04/06/2004 made mention of extensive photocoagulation of both eyes, corroborating the observation that the veteran had undergone the procedure elsewhere in addition to VA Boston. The veteran's vitreous hemorrhage portended progressive vision loss, which was prevented by the laser treatment. In addition, at some point he had intra-ocular lenses (IOPs) implanted, presumably in conjunction with lens extractions for cataracts. Both the photocoagulation and the IOPs can cause flaring from bright lights at night. There is no documentation of mishaps during the 1998 procedure, and no indication in subsequent ophthalmology notes that the procedure had been faulty. It is less likely than not that the veteran's difficulty driving at night was caused by or became worse as a result of the VA treatment at issue. In April 2018, an unsigned private positive medical opinion was provided stating: It is in my medical opinion that the surgery that Mr. [A] went through for his eye condition at Jamacia Plains, shows at least some degree of lack of skill or error in judgement that could also be characterized as carelessness and this is due to the results that have impaired the veterans eye sight and not being able to drive at night. It is at least as likely as not that these complications were due to carelessness, lack of proper skills or an error in judgement during the procedure. In June 2019, an additional VA opinion on the matter was provided. The examiner opined that it was less likely than not that the Veteran's eye condition was caused or worsened by VA treatment. The rationale provided was: I have reviewed all relevant clinical documentation and the veteran's testimony in the 03/27/2018 hearing. The veteran did not provide dates for his contention regarding retinal lasering. Available records indicate that he underwent more than one laser photocoagulation procedure, both in and without the VA system. Additionally, he had at least one intraocular lens implanted. Available records do not support his contention "So, she started lasering them and all of a sudden she hit the wrong the nerve in there and knocked me back off the stool...". No intra-procedure mishaps are recorded in available documentation. The veteran's visual loss has been caused to a minor degree by cataracts and to an overwhelming degree by diabetic retinal proliferation. The unsigned statement of medical opinion that the veteran submitted is of no determinative value because it contains no rationale; it seems most likely that a physician was performing a kindness to the veteran and was trying to be helpful but did not have evidence on which to base the opinion. There is no convincing reason based on the veteran's testimony and based on clinical documentation to amend my 11/25/2017 medical opinion. VA procedures did not cause the disability; care met any reasonable standard; there were unforeseen complications; and care was timely. At the outset, the Board notes that the evidence does not show that the Veteran right foot injuries were due to either carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing the hospital care, medical or surgical treatment, or examination, or, an event not reasonably foreseeable. In particular, the VA examiners of record further that it was less likely than not that the Veteran's right toe amputation was caused or worsened by VA treatment. Specifically, the examiner recounted all of the medical care received by the Veteran related to his injury and found that the care was meticulously thorough and timely. Further, while the Board notes the private medical opinion provided, it has been afforded no probative value. Indeed, the opinion itself contains no rationale and was not signed by a medical professional. Accordingly, the criteria for an §1151 claim are not met, and the claim must be denied. Service Connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § § 3.303(a). To establish a right to compensation for a present disability, a veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Entitlement to service connection for amputation, second and third toes, left foot The Veteran contends that his left foot condition is the result of his active service. Service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of a left foot condition. In November 2017, the Veteran attended a VA Foot Conditions examination. The examiner diagnosed amputation, second and third toes, left foot as of "2015" but did not provide a direct opinion on the Veteran's condition. Various VA treatment records indicate continued complaints and treatment for a left foot condition but no discussion on its etiology. There is no diagnosis of a left foot disability in the records between the end of the Veteran's active service in 1961 and the November 2017 VA examination indicating an assessment of amputation, second and third toes, left foot, more than 40 years later. This delay, while not conclusive, weighs against the establishment of service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Further, while the Board notes the multiple treatment records indicating said history, none speak to the onset of a left foot amputation disability. In addition, the Veteran has not provided any medical documentation indicating his condition is the result of his active service. While the Veteran believes his left foot disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). There is no showing of an in-service injury or disease to which the current left foot diagnosis may relate, and no basis shown for an award of benefits for chronic disability seen in the first post service year or based on continuity of symptoms. These facts render no need for any further examination or opinion and provide no basis for an award of service connection for a left foot disability. In conclusion, the weight of the evidence is against the claim for service connection for a left foot disability. Entitlement to service connection for amputation, first and second toe, right foot The Veteran contends that his right foot condition is the result of his active service. Service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of a right foot condition. In November 2017, the Veteran attended a VA Foot Conditions examination. The examiner diagnosed amputation, first and second toes, right foot as of "2015" but did not provide a direct opinion on the Veteran's condition. Various VA treatment records indicate continued complaints and treatment for a right foot condition but no discussion on its etiology. There is no diagnosis of a right foot disability in the records between the end of the Veteran's active service in 1961 and the November 2017 VA examination indicating an assessment of amputation, first and second toes, right foot, more than 40 years later. This delay, while not conclusive, weighs against the establishment of service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Further, while the Board notes the multiple treatment records indicating said history, none speak to the onset of a right foot amputation disability. In addition, the Veteran has not provided any medical documentation indicating his condition is the result of his active service. While the Veteran believes his right foot disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). There is no showing of an in-service injury or disease to which the current right foot diagnosis may relate, and no basis shown for an award of benefits for chronic disability seen in the first post service year or based on continuity of symptoms. These facts render no need for any further examination or opinion and provide no basis for an award of service connection for a right foot disability. In conclusion, the weight of the evidence is against the claim for service connection for a right foot disability. Entitlement to service connection for proliferative diabetic retinopathy The Veteran contends that his eye condition is the result of his active service. Service treatment records (STRs) are silent for any complaints, treatment, or diagnosis of an eye condition. In November 2017, the Veteran attended a VA Eye Conditions examination. The examiner diagnosed proliferative diabetic retinopathy but did not provide a direct opinion on the Veteran's condition. Various VA treatment records indicate continued complaints and treatment for an eye condition but no discussion on its etiology. There is no diagnosis of an eye disability in the records between the end of the Veteran's active service in 1961 and the November 2017 VA examination indicating an assessment of proliferative diabetic retinopathy, more than 40 years later. This delay, while not conclusive, weighs against the establishment of service connection. See Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where veteran failed to account for lengthy time period between service and initial symptoms of disability). Further, while the Board notes the multiple treatment records indicating said history, none speak to the onset of an eye disability. In addition, the Veteran has not provided any medical documentation indicating his condition is the result of his active service. While the Veteran believes his eye disability is related to an in-service injury, event, or disease, he is not competent to provide a nexus opinion regarding this issue. The issue is medically complex, as it requires knowledge of anatomical relationships and interpretation of complicated diagnostic medical testing. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). There is no showing of an in-service injury or disease to which the current eye diagnosis may relate, and no basis shown for an award of benefits for chronic disability seen in the first post service year or based on continuity of symptoms. These facts render no need for any further examination or opinion and provide no basis for an award of service connection for an eye disability. In conclusion, the weight of the evidence is against the claim for service connection for an eye disability. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.