Citation Nr: 21067410 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 14-35 262A DATE: November 4, 2021 ORDER Entitlement to a rating in excess of 20 percent for status post left ankle fusion, tibia/fibula fusion site fractures with osteomyelitis, for the appeal period prior to December 26, 2018, exclusive of temporary total rating periods, is denied. Entitlement to a rating in excess of 40 percent for status post left ankle fusion, tibia/fibula fusion site fractures with osteomyelitis for the appeal period beginning on March 1, 2020, excluding a period of temporary total rating, is denied. FINDINGS OF FACT 1. For the appeal period prior to December 26, 2018, the Veteran's status post left ankle fusion manifested as marked limitation of motion without ankylosis of the ankle or subastragalar or tarsal joint, malunion of os calcis or astragalus, or an astragalectomy. 2. From March 1, 2020, the Veteran's status post left ankle fusion is assigned the maximum schedular rating authorized under the applicable diagnostic code. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for status post left ankle fusion, tibia/fibula fusion site fractures with osteomyelitis, for the appeal period prior to December 26, 2018, excluding periods of convalescence, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.71a, Diagnostic Code 5056. 2. The criteria for a rating in excess of 40 percent for status post left ankle fusion, tibia/fibula fusion site fractures with osteomyelitis from March 1, 2020, excluding a period of temporary total rating, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.40, 4.45, 4.68, 4.71a, Diagnostic Code 5056. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1982 to August 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In May 2018, the Board remanded the case to the RO for evidentiary development namely to obtain private treatment records and obtain a new VA examination to determine the severity of his status post left ankle fusion. In January 2021, the Board again remanded the case to the RO for still further development to include obtaining a new VA examination to determine the severity of his status post left ankle fusion. A November 2018 letter to the Veteran requested that he complete an appropriate authorization form to allow VA to obtain treatment records on his behalf. VA examinations were conducted in November 2018 and August 2020. Following the requested development, a supplemental statement of the case (SSOC) was issued in May 2021. The Board therefore determines that there has been substantial compliance with its previous remands. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. It is permissible to switch diagnostic codes to reflect more accurately a claimant's current symptoms. See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Under Diagnostic Code 5271, a rating of 10 percent is warranted when limitation of motion of the ankle is moderate. See 38 C.F.R. § 4.71a, Diagnostic Code 5271. The maximum rating of 20 percent disabling is available under Diagnostic Code 5271 where the limitation of motion in the ankle is marked. Id. Normal ankle motion is dorsiflexion to 20 degrees, and plantar flexion to 45 degrees. 38 C.F.R. § 4.71a, Plate II. Notably, the terms "moderate" and "marked" were previously not defined under VA regulations. Those terms also did not appear to have a generally accepted medical definition. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It should also be noted that use of terminology such as "moderate" by VA examiners and others, although evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. Under Diagnostic Code 5056, a minimum 20 percent rating is warranted for prosthetic ankle replacement. Intermediate degrees of residual weakness, pain or limitation of motion are to be rated by analogy to Diagnostic Code 5270 or 5271. A 40 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness. That is the highest schedular rating available under Diagnostic Code 5056. 38 C.F.R. § 4.71a, Diagnostic Code 5056. Under Diagnostic Code 5270, a 30 percent rating is warranted for ankylosis of the ankle in plantar flexion is between 30 and 40 degrees or in dorsiflexion between zero and 10 degrees. A 40 percent rating is warranted for ankylosis of the ankle in plantar flexion is at more than 40 degrees or in dorsiflexion at more than 10 degrees, or with abduction, adduction, inversion or eversion deformity. 38 C.F.R. § 4.71a, Diagnostic Code 5270. The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). Under the revised diagnostic code, marked limitation of ankle motion constitutes less than five degrees of dorsiflexion or less than 10 degrees of plantar flexion while moderate limitation of ankle motion constitutes less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. 38 C.F.R. § 4.71a, Diagnostic Code 5271 (effective Feb. 7, 2021). The "amputation rule" set forth at 38 C.F.R. § 4.68 provides that the combined rating for disabilities of an extremity shall not exceed the rating for the amputation at that elective level, were amputation to be performed. As the Veteran's left lower extremity disorder involves the leg below the knee, the combined rating for that disability may not exceed 40 percent. See 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5270. Thus, pursuant to the amputation rule, the 40 percent rating for the left ankle disability is the maximum rating available. When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claim. 1. Entitlement to a rating in excess of 20 percent for status post left ankle fusion, tibia/fibula fusion site fractures with osteomyelitis, for the appeal period prior to December 26, 2018, exclusive of temporary total rating periods, is denied. 2. Entitlement to a rating in excess of 40 percent for status post left ankle fusion, tibia/fibula fusion site fractures with osteomyelitis for the appeal period beginning on March 1, 2020, excluding a period of temporary total rating, is denied. Service connection for left ankle sprain was granted by a rating action in October 2003, and a noncompensable rating was assigned, effective September 1, 2003. The Veteran's claim for an increased rating for the status post left ankle fusion was received in September 2009. In a June 2021 statement, the Veteran asserted that a higher rating was warranted for his left ankle fusion as he had undergone 14 surgeries on his left ankle and tibia to include fusion on December 26, 2018 and that his entire lower left leg had deteriorated to a deformity that will incapacitate him for the rest of his life. He also asserts that he has a significant limb discrepancy and that every left shoe must be altered by a professional with a lift in excess of six centimeters. Submitted in support of the claim were private treatment reports dated from April 2008 through August 2009 which show that the Veteran received ongoing clinical evaluation for chronic left ankle pain and instability. On his initial clinical visit in May 2008, it was noted that while the Veteran had had ongoing left ankle pain over the past two decades, it had become increasingly severe over the past six months; he described the pain as moderate to severe in nature. The Veteran rated the severity of his pain as an 8 out of 10. He complained of radiation of pain, stiffness and instability. The examiner noted that the Veteran had varus valgus instability, moderately tight Achilles' tendon complex, and he had a cavovarus-type foot deformity. The assessment was varus instability in the ankle joint in conjunction with early joint arthrosis, cavovarus foot. In November 2008, the Veteran underwent a left lateral ankle ligament reconstruction with cadaver bone, Achilles' tendon reconstruction, lateral calcaneal osteotomy, and Achilles' tendon lengthening. An x-ray study, dated in February 2009, revealed findings of postsurgical and degenerative changes of the left ankle joint and possible tendinitis of the peroneus brevis tendon. The Veteran was afforded a VA examination in October 2009, at which time it was noted that he has experienced recurrent left ankle pain after twisting the ankle in boot camp. In November 2008, the Veteran underwent surgical repair, and all the ligaments were replaced; however, he has had subsequent persistent pain in the left ankle. No weakness, fatigability, decreased endurance, incoordination, instability or flareups were claimed. On examination, it was noted that the Veteran walked with a limp, but no support device was used. He had a vertical surgical scar over the lateral left ankle with some surrounding swelling; he also had small vertical surgical scars on the dorsal heel area. No tenderness to palpation and no deformity was noted. Range of motion in the left ankle revealed dorsiflexion to 10 degrees and plantar flexion 20; inversion and eversion were both zero degrees. He complained of pain with inversion on the left ankle. No weakness, fatigability, decreased endurance, incoordination, or instability was noted. The examiner noted that the Veteran does have pain with repetitive motion on the left ankle. The pertinent diagnosis was persistent left ankle pain, status post-surgery. Submitted in support of the Veteran's claim was a private hospital report, which shows that he underwent revision of a total ankle arthroplasty with poly exchange subtalar fusion in June 2017. During a physical therapy evaluation in September 2017, it was noted motor strength testing in the left ankle was 3/5. Range of motion revealed 8 degrees of dorsiflexion and 32 degrees of plantar flexion. Subsequently, the Veteran was seen for evaluation of the left ankle in February 2018. It was noted that the Veteran was doing well, but he still had constant left ankle pain; the pain was worse with walking and weight bearing but improved with rest. The Veteran described the pain as dull and throbbing in nature, with a severity of 5 out of 10. The Veteran indicated that he had an infection shortly after surgery which has since resolved. Muscle strength testing was 5/5 in all motor groups except for the left ankle. He was tender to palpation at the plantar of the foot and near the hardware. The assessment was left ankle subtalar fusion following total ankle arthroplasty is stable. Of record is a medical statement from Dr. S.R., dated in December 2018, indicating that he performed a reconstructive surgery of a failed total ankle replacement on the left ankle on December 13, 2018. The examiner indicated that he eliminated any type of ankle or subtalar joint subsequently he has no motion and will not have any motion at the level of the ankle or subtalar joint. It was noted that the Veteran also had a limb length discrepancy. The Veteran was afforded a January 2019 VA examination report. The Veteran reported painful left ankle. He was currently non-weight bearing so he is unable to walk, run. He uses two crutches. The examiner indicated that he was unable to test the left ankle due to recent surgery and a halo fixation of the left ankle. Pain was noted on examination on rest and non-movement. He had pain with dorsiflexion and plantar flexion. There was evidence of pain with weight bearing. He had pain around the pins. The Veteran was not able to perform repetitive use testing with at least three repetitions. Muscle strength was 5/5. No muscle atrophy was noted. No ankylosis was noted. It was noted that the veteran has a recent surgery on the left ankle in December 2018. The examiner noted that the Veteran had external fixation halo with pins going through his lower leg and foot. The left foot was noticeably swollen, reddish tint, oozing blood at entry points of external fixation pins. It The examiner indicated that the Veteran was non-weight bearing for the next four months. The Veteran was afforded another an August 2020 VA examination report. Veteran had chronic left ankle pain from chronic ligament injury and had multiple surgeries related to left ankle replacement and complications. Veteran states he has a dropped left foot and shorter leg due to surgery, that now he has to wear elevated shoes. Chronic pain 6/10 in severity aching and sharp pain. Veteran states that walking is difficult, stairs are harder. The Veteran reported having flareups manifested by increased pain with walking and stairs. The left ankle had dorsiflexion to five degrees and plantar flexion to five degrees. The abnormal range of motion causes difficulty walking and negotiating stairs. Pain was noted on examination and caused functional loss. The Veteran had moderate pain palpitation of the left ankle around the medial malleolus. There was evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions; there was no additional loss of function or range of motion after three repetitions. Function is not significantly limited by pain, weakness, fatigability or incoordination. The left ankle disability caused weakened movement, swelling, and disturbance of locomotion. It was noted that the Veteran had a dropped left foot with significant loss of strength. Muscle strength testing in the left ankle was 4/5. No atrophy was noted. No ankylosis was noted. No instability or dislocation was suspected in the left ankle. It was noted that the Veteran uses an ankle brace constantly due to the left foot drop. Functional impact was difficulty with walking and stairs. There was objective evidence of pain when the left ankle was used in non-weight bearing. Passive range of motion zero to five degrees. The examiner indicated that there was a worsening of the Veteran's symptoms; however, there was no change to the service-connected diagnosis and no additional diagnoses. A December 2020 VA examination report reflects the Veteran's reports of having pain on the top of the tibia and a lack of feeling in his foot and dropped toe. The Veteran indicated that he is unable to run, that he was currently on oral antibiotics and that he had increased pain and stiffness in the left ankle. The Veteran reported having flareups twice a week, lasting up to two hours; he rated the severity of the pain as a 6 on a scale of 1 to 10. The Veteran stated that he cannot lift the great toe, cannot run and he cannot walk long distances. The left ankle had dorsiflexion to 10 degrees and plantar flexion to 20 degrees, the Veteran was unable to walk without limping and has difficulty climbing stairs, pain was noted on examination and caused functional loss and palpitation of the left ankle caused sharp pain around the ankle and up the anterior tibia. The Veteran was able to perform repetitive use testing with at least three repetitions; following repetitive use testing, plantar flexion was to 15 degrees and dorsiflexion was to 10 degrees. He had functional loss as a result of pain and weakness. Range of motion during flareups was plantar flexion to 10 degrees and dorsiflexion to 10 degrees. It was noted that the Veteran had atrophy just above the ankle. Muscle strength testing in the left ankle was 3/5. No ankylosis was noted. There was no instability or dislocation suspected. Chronic residuals consisting of severe painful motion or weakness. Following the surgery in December 2018, the Veteran had residuals consisting of atrophy, pain, infection and deformity. It was noted that the Veteran uses a cane due to unstable gait and that there was an old fracture with partial non-union of the distal left tibia, with an intramedullary rod noted in the distal left tibia, crossing the old fracture site, and continuing into the talar bone and calcaneus with fusion across all joints. Destruction of the anterior portion of the talar bone, most likely related to old osteomyelitis. There is objective evidence of pain on passive range of motion testing and there is objective evidence of pain when the joint is used in non-weight bearing. The pertinent diagnosis was degenerative arthritis, left ankle; status post left ankle replacement with ligament repair and reconstruction; and osteomyelitis, fracture tibia. The diagnosis was status post-surgery developed osteomyelitis and tibia fracture due to fusion. For the appeal period prior December 26, 2018, the Veteran is in receipt of a 20 percent rating for his status post left ankle fusion. This is the maximum schedular rating available based upon limitation of motion of the ankle. The record does not establish, and the Veteran has not alleged, ankylosis, ankylosis of the subastragalar or tarsal joint, malunion of the os calcis or astragalus or astragalectomy. The Board notes that the Veteran underwent ankle fusion surgery in December 2018. Therefore, a higher rating for the appeal period prior to December 26, 2018 is not warranted. For the appeal period beginning on December 26, 2018, the Veteran is in receipt of a 40 percent for this status post left ankle fusion. This the maximum schedular rating available for an disability involving the leg below the knee under the amputation rule. See 38 C.F.R. §§ 4.68, 4.71a, Diagnostic Code 5270. Thus, pursuant to the amputation rule, the 40 percent rating for the status post left ankle fusion is the maximum rating available. As any increase awarded to the Veteran's service-connected status post left ankle fusion will violate the amputation rule under 38 C.F.R. § 4.68, his claim for increased rating for his status post fusion left ankle must be denied. The Board notes the Veteran's arguments that he experienced a significant limb discrepancy of about six centimeters as a result of his left ankle fusion. A February 2021 VA examiner noted that there was a 10 centimeter leg difference on the left leg and that it was shorter as a result of his ankle fusion. The Board notes that the Veteran underwent a left ankle fusion in December 2018. As discussed above, the Veteran has been in receipt of a 40 percent rating for his status post left ankle fusion beginning on December 26, 2018 which is the maximum rating available under the amputation rule. Therefore, a separate rating based on a leg length discrepancy cannot be awarded as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the claim must be denied as without legal merit). Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). In this case, the Veteran is in receipt of the highest schedular rating for his status post left ankle fusion based upon limitation of motion for the appeal period prior to December 26, 2018 and is in receipt of the maximum rating available for the appeal period beginning on December 26, 2018 under the amputation rule. Therefore, the holdings of Correia and Sharp are not applicable to this case. The Board acknowledges the Veteran's statements that his status post left ankle fusion symptoms are more severe than evaluated, to include difficulty with standing and walking. The Veteran is competent to report his symptoms and has presented credible statements in this regard. See, e.g., Layno v. Brown, 6 Vet. App. 465, 469-70 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). The Board finds, however, that neither the Veteran's statement nor medical evidence demonstrates that the criteria for a rating in excess of 20 percent prior to December 26, 2018 and in excess of 40 percent thereafter. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for his status post left ankle fusion. However, these records do not address the specific rating criteria necessary to substantiate a higher rating. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. Nevertheless, the Board acknowledges the Veteran's assertions that his status post left ankle fusion results in pain. However, again, the Board notes that such symptoms are contemplated under the current rating assigned. This argument is therefore without merit. The Board also acknowledges the Veteran's sincerely held belief that his status post left ankle fusion symptoms are more severe than currently contemplated. In this regard, the Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to describe his symptomatology and resulting functional difficulties, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with specialized expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such in light of the rating criteria to be more persuasive than his own reports regarding the severity of his disability. To this effect, the Board acknowledges the Veteran's argument that his status post left ankle fusion has progressed in severity and has been under-compensated. While the Board agrees, the Board simply cannot locate any evidence to support the grant of a higher than already assigned. The Board has also considered whether a further staged rating under Hart, supra, is appropriate for the Veteran's service-connected status post left ankle fusion. However, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning a further staged rating for such disorders is not warranted. Further, the Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to such claim. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Additionally, the Board has considered whether an inferred claim for a total disability based upon individual unemployability (TDIU) has been raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran reported he was working home for the Navy in a December 2020 VA treatment note As such, the Board finds that a claim for a TDIU is not raised in connection with the instant appeal. See Rice v. Shinseki, supra. Accordingly, the Board finds that a preponderance of the evidence is against a rating in excess of 20 percent for the appeal period prior to December 26, 2018 and in excess of 40 percent thereafter for status post left ankle fusion, tibia/fibula fusion site fractures with osteomyelitis. The appeal is accordingly denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Suzie S. Gaston, 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.