Citation Nr: 21067699 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 10-07 024 DATE: November 5, 2021 ORDER Entitlement to a 70 percent disability rating for generalized anxiety disorder (GAD) is granted. Entitlement to a total disability individual unemployability rating (TDIU) beginning January 1, 2011, is granted. REMANDED A TDIU before January 1, 2011, is remanded. FINDINGS OF FACT 1. The probative evidence of record shows that during the appeal period, the Veteran's service-connected GAD causes occupational and social impairment, with deficiencies in most areas. 2. The probative evidence of record shows that the Veteran's service-connected GAD likely precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for the assignment of a 70 percent rating for GAD have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.125, 4.130, Diagnostic Code 9400. 2. Beginning January 1, 2011, a TDIU is warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1965 to November 1967. The issues come before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was scheduled for a hearing before a Veterans Law Judge (VLJ) in October 2021. However, in September 2021, he provided a correspondence indicating that he wished to withdraw his scheduled hearing request. As such, his request is considered withdrawn. 38 C.F.R. § 20.704(e). The issues were before the Board in January 2012, November 2017, and October 2018. In November 2017, the Board denied the claims. The Veteran appealed the denials to the U. S. Court of Appeals for Veterans Claims (Court), and in June 2018, the Court granted the parties' Joint Motion for Partial Remand (JMPR) and vacated the Board's November 2017 denials. The issue was then remanded to the Board for development consistent with the JMPR. In January 2012 and October 2018, the issues were remanded. The most recent remand of October 2018 mandated the RO to obtain Social Security Administration (SSA) records and other treatment records, completed Form 21-4192 from the Veteran's former employer, and provide the Veteran with a VA examination. VA treatment records were associated with the claims file, and a response from SSA indicated the absence of records. The Veteran, in a Report of General Information dated in May 2020, confirmed the absence of SSA records for he was receiving Supplemental Security Income based on age rather than Social Security Disability Insurance based on a disability. In May 2019 and November 2019, the Veteran was afforded VA examinations. The examinations addressed the Veteran's severity of his GAD and are adequate for rating purposes. The Board finds that there has been substantial compliance with the remand directives. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The RO, in a rating decision of June 2020, granted a TDIU, effective April 19, 2019. As such, the Board has characterized the issue as reflected above. The Board notes that after the June 2020 issuance of the SSOC, the Veteran, through his attorney, provided additional relevant evidence in support of his claims. 1. Entitlement to a 70 percent disability rating for GAD is granted. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.20. Where there is a question as to which of two evaluations shall be applied under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the claimant. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the Board must determine if the evidence is credible. Barr v. Nicholson, 21 Vet. App. 303 (2007). Third, the Board must weigh the probative value of the evidence considering the entirety of the record. The Veteran's GAD with unspecified depressive disorder has been assigned an initial 50 percent disability rating under Diagnostic Code 9400. 38 C.F.R. § 4.130. GAD is evaluated under the General Rating Formula for Mental Disorders. Under the General Rating Formula for Mental Disorders, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing effective work and social relationships. Id. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130. Id. A 100 percent rating is assigned for total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. Symptoms listed in the General Rating Formula for Mental Disorders are not intended to constitute an exhaustive list but rather serve as examples of the type and degree of the symptoms or their effects that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). A veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). Additionally, while symptomatology should be the primary focus when deciding entitlement to a given disability rating, § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused the requisite occupational and social impairment. Id. The Veteran contends that a higher than 30 percent rating is warranted for his generalized anxiety disorder. The Veteran's treatment records show that he has been involved in anger management sessions and group psychotherapy sessions to learn strategies and techniques to manage his anger associated with his anxiety disorder. Similarly, the records show that the Veteran has "persistently refused using psychiatric medications due to fear of having catastrophic side effects" and had developed skills, as humor, or talking, to cope with his chronic anxiety, and has benefitted from continuing supportive therapy. Private treatment records by Dr. N.A.O., dated in December 2008, noted that the Veteran presented with GAD, characterized by sleep disturbance, depression, frequent deficiencies of concentration, persistence, and pace. It was also noted that the Veteran was unable to handle stress and presented episodes where he could not maintain his concentration and attention span and performed within a schedule or meet production standards, not allowing for a full day of work. VA treatment notes dated April 2009 document the Veteran's persistent anxiety, exaggerated worries, and a history of a short fuse. Treatment notes later that month additionally noted that the Veteran experienced memory lapses, lost track of the conversation, was increasingly irritable, and experienced sleeping difficulties. VA treatment notes dated in August 2013 notes the Veteran's report of frequently checking windows and doors, having had episodes of irritability. A Geriatric Neuropsychological Report conducted in November 2015 by Dr. J.A.M., Ph. D., noted that the reason for the examination was that the Veteran's wife had increased concerns about his memory loss and increased irritability. Throughout the appeal period, numerous mental status examinations were conducted. For example, examinations conducted in January 2011, May 2012, September 2012 found the Veteran to be alert, cooperative, restless, shifts often in the chair, increased startle response; hyperactive with mood anxious and affect anxious and constricted. His speech was spontaneous, with a mildly increased rate and volume. His thought process was goal-directed, coherent, relevant, logical, and organized. No delusions, derailment, thought disorder were elicited. Neither suicidal nor homicidal ideation was present. His memory was intact, and he was oriented in three spheres. His insight and judgment were fair. The clinician noted that the Veteran reported retiring on December 31, 2010. He had adapted well to retirement, using his leisure time adequately. Episodes of irritability occurred, but he tried to manage by keeping his mind busy. The clinician noted that he would benefit from continuing supportive therapy. A mental status examination of January 2013 noted that the Veteran was calm, cooperative, with good eye contact. He reported that he felt stable about his emotional condition, but it manifested in sleep disturbances "since months ago." He denied suicidal, homicidal thoughts and hallucinations. Mental status examinations of October 2019 and December 2019 noted that the Veteran was alert, cooperative, and spontaneous. His grooming and hygiene were appropriate/adequate. His thought process was coherent, logical, fully oriented, in contact with reality. His mood was mildly anxious, and his affect was congruent with his mood. No perceptual disturbances were noted or acknowledged. No aggressive/disruptive behavior or delusions were shown. Overall, the clinical records have noted no evidence of suicidal or homicidal ideations. Consistently, his memory was intact, and he was oriented in three spheres. His insight and judgment were fair. His grooming and hygiene were adequate. In May 2019, the Veteran was afforded a VA Mental Disorders examination. The Veteran reported that he has three grown children, including one born from an extramarital relationship. He also reported living with his wife and described the environment as "somewhat good." He also reported having had a bad relationship with his father but good relationships with other family members. He worked for 30 years at Glidden and was fired for "bad temper and mistreating employees." Currently, he volunteers at his church, stating that it is like "a retreat center." The examiner noted that the Veteran's disorder is a continuation of the previously diagnosed GAD. The examiner determined that the Veteran's level of occupational and social impairment was best summarized by occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The examiner noted that anxiety, chronic sleep impairment, and disturbances of motivation and mood applied to the Veteran's disorder. The Veteran was capable of managing his financial affairs. Regarding the behavioral observations, the examiner noted that the Veteran had a normal appearance with "clean" hygiene. His behavior was cooperative, and his psychomotor activity was normal. His affect was euthymic, and the appropriateness of affect was congruent with mood. He had clear speech, and his thought process was coherent. He manifested feeling worried about his daughter, who was unemployed since hurricane Maria and even with helping her out, "it is not enough." He also mentioned feeling like something bad could happen and thinks much about his children. His judgment was deemed adequate. His person, place, and time orientation was deemed conserved, as was his immediate and remote memory, attention, and concentration. In November 2019, the Veteran was afforded a Mental Disorders examination. He reported being married to his wife and having adult sons. After retirement in 2011, he volunteered in his church. The examiner diagnosed GAD and determined that the Veteran was occupationally and socially impaired due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. The examiner noted that anxiety, chronic sleep impairment, and disturbances of motivation and mood applied to the Veteran's disorder. Regarding the behavioral observations and mental status, the examiner noted that the Veteran was appropriately dressed, with adequate hygiene, and was cooperative. He was alert and seemed in contact with reality, absent evidence of psychomotor retardation or agitation. He also had no involuntary movement. His behavior was cooperative, and his psychomotor activity was normal. His affect was broad and appropriate. His memory for recent, remote, and immediate was preserved. His thought process was coherent and logical. He was oriented to person, place, and time. His judgment was deemed good and insight adequate. There were no phobias, hallucinations, delusions, obsessions, or panic attacks, and he denied suicidal and homicidal ideations. The examiner remarked that the Veteran was coherent, logical and relevant at the time of the examination. The Veteran had not experienced a significant decrease in functionality, has never been hospitalized, and there was no evidence of a psychologic crisis, no evidence of changes in pharmacological treatment relevant to the service-connected mental condition. The mental disorder symptoms were not severe enough to interfere with his marital relationship, parenting, performance, daily activities, family responsibility, financial debts, and social functioning. The Veteran has been volunteering at his church as a Bible study teacher. Also of record is a September 2021 Declaration by the Veteran wherein he indicated that his GAD has continued to worsen and impacts his ability to function daily. He is constantly irritable, and the smallest inconvenience sets him off. If someone accidentally cuts him off or bumps into him, he becomes so "extremely angry" that he needs to leave the area for "at least 30 minutes" to calm down. His memory is also severely impaired, wherein he constantly forgets keys, wallet, and phone. He stated that his relationship with his wife has been impacted by his GAD, for he constantly yells at her because of a lack of control over his anger. He often needs to lock himself in his room with the lights off for at least an hour to calm down. In the last five years, he had been to at least three anger management courses prescribed by both VA and his church. However, there is nothing he can do to control his anger which only continues to worsen. His social relationships and his ability to form new relationships have been impacted. His sleep was also impacted. He was unable to sleep through the night, and at most, he got four hours per night and always felt fatigued the next day. The fatigue hinders concentration and the ability to focus. In September 2021, the Veteran provided a psychological disability assessment from his private physician, A.R.D., Ph.D., wherein he endorsed symptoms including constant and excessive worrying, sadness, pessimism, feelings of failure, loss of interest in activities, feelings of guilt, lack of confidence, feeling punished, worthlessness, self-criticism, frequent crying, agitation, problems making decisions, loss of energy, insomnia, irritability, reduced appetite, problems with concentration, and loss of libido. "It is the opinion of this evaluator that the symptoms of depression are at least as likely as not secondary to the Generalized Anxiety Disorder. The current symptoms and accompanying functional impairment of both disorders overlap and therefore are impossible to separate. Furthermore, it is the opinion of this evaluator that the Veteran's past use of alcohol at least as likely as note merged because of his difficulties with anxiety, irritability, and anger, and it was at least as likely as not that the Veteran used alcohol to self-medicate his symptoms." The examiner diagnosed GAD and noted that from 2009 to the present, it was at best described as causing occupational and social impairment with deficiencies in most areas. "Importantly, the noted symptoms of impaired impulse control, difficulty in adapting to stressful circumstances, and the inability to establish and maintain effective relationships most closely align with a 70 percent rating for a psychiatric condition pursuant to section." After a review of the evidence presented above, the Board finds that the frequency, severity, and duration of the Veteran's GAD symptoms reported or shown are suggestive of occupational and social impairment with deficiencies in most areas, the level of impairment contemplated by a 70 percent rating. Although the May 2019 and November 2019 VA examiners summarized the Veteran's level of occupational and social impairment as occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks, the Board finds that the record nevertheless shows symptoms approximated by the 70 percent rating, including difficulty in adapting to stressful circumstances, impaired impulse control, and inability to establish and maintain effective relationships. The Board finds that the Veteran's frequency, severity, and duration of his GAD symptoms are contemplated by the 70 percent criteria. Thus, a 70 percent disability rating is granted for the entire period on appeal. The Board notes that Dr. A.R.D. acknowledged familiarity with the Veteran's history and a review of the pertinent records. A physician's review of the claims file is not the determinative factor in assigning probative value. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300 (2008). A physician should have information regarding relevant case facts. Here, the Board finds that Dr. A.R.D. had the relevant case facts and thus affords her medical opinion the most probative weight in a finding that the Veteran's GAD, during the appeal period, most closely approximated occupational and social impairment with deficiencies in most areas. The Board further finds, however, that the evidence of record during the appeal period shows that the Veteran's GAD is not more closely described by both total occupational and total social impairment. Mauerhan, 16 Vet. App. at 442-43. The risk of self-harm is contemplated by the 100 percent criteria, which addresses whether one is a persistent danger to himself or others. Bankhead v. Shulkin, 29 Vet. App. 10 (2017). Here, the cumulative evidence of record does not show severity enough to cause total occupational and total social impairment. Further, no VA clinician nor examiner has found the Veteran to be a persistent danger of hurting himself or others. During the appeal period, the Veteran continued to be married to his wife since 1965 and continued to have a close relationship with his sons and daughter. Although he reported an inability to make new friends since his retirement in December 2010, he has been teaching Bible study classes at his church. He has also been found to be capable of managing his financial affairs. As the evidence does not reflect findings of gross impairment in thought processes or communication, persistent delusions, grossly inappropriate behavior, persistent danger of hurting self or others, disorientation to time or place, and memory loss for names of close relatives or his own name, the Board finds that neither total nor social impairment is approximated. "Total" is defined as "whole, not divided; full; complete" and "utter, absolute." Black's Law Dictionary, 1498 (7th ed. 1999). As the most probative evidence of record does not show total and social impairment, the 100 percent rating is not warranted during this period. Given the frequency, nature, and duration of the Veteran's symptoms, the Board finds that they do not result in total occupational and total social impairment for the period. They do not more closely approximate the types of symptoms contemplated by the 100 percent rating, and therefore, a 100 percent rating is not warranted. Vazquez-Claudio, 713 F.3d at 114 (holding that a veteran "may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration"). In sum, the Board finds that the Veteran's symptoms from his disorder have not more closely approximated the criteria for a rating greater than 70 percent during the appeal period. The probative evidence of record does not show that the particular symptoms associated with the higher percentage or others of similar severity, frequency, and duration result in total occupational and total social impairment. Thus, a 100 percent rating is not approximated. 2. A TDIU is warranted beginning January 1, 2011. Total disability exists when there is any impairment, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned based on individual unemployability: that is, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one service-connected disability, it must be rated 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). When the Board conducts a TDIU analysis, it must consider the Veteran's education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276 (2015). Here, with the grant of 70 percent for GAD for the entire appeal period, along with his service connected TBI, the schedular criteria are met, beginning January 23, 2009. Of record are March 2009 and September 2021 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability). In the March 2009 application, the Veteran attributed his lack of gainful employment to "all [his] service-connected conditions," which at the time were traumatic brain injury (TBI) and GAD. He indicated that he had been under ongoing doctor's care. He also reported that his said disabilities affected his full-time employment in August 2008, which was also the date that he became too disabled to work, and the date he last worked full-time as a construction worker. The Veteran reported that he left his last job because of his disabilities and had not tried to obtain employment since he became too disabled to work. He indicated a 4-year college education and not having had any other education and training before and since he became too disabled to work. In his September 2021 application for a TDIU, he reported that he owned his own remodeling company until 2011. Additional records associated with the claims file note that the Veteran has a Master's degree in Marketing, worked in sales in different settings and retired from "his job" on December 31, 2010. Treatment notes dated January 26, 2011, noted that the Veteran had "adapted well to retirement, using his leisure time adequately." The Board notes that a VA examination of May 2016 found that the Veteran's TBI disability did not impact his ability to work. The May 2019 and November 2019 Mental Disorders DBQs, however, found the Veteran occupationally and socially impaired due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. In his September 2021 Declaration, the Veteran reported that his GAD impacted his ability to work, as he had stormed off and not returned to jobs in the past. As a teacher, he was unable to focus on grading papers, so he gave students grades based on their classroom behavior. He also reported that he was fired from jobs and missed work for at least one week, and regularly had two-hour lunches, which he took to calm down. In September 2021, the Veteran's private clinician Dr. A.R.D. noted, that the symptoms from his GAD included chronic anxiety, depressed mood, attention, concentration, sleep, and memory problems. She also found that he demonstrated a low tolerance for everyday minor inconveniences, and his irritability led to conflicts with others, including constant yelling. Thus, she concluded that he was unable to secure and follow substantially gainful employment due to the severity of his service-connected GAD. Based on the evidence presented, the Board finds that a TDIU is warranted. The probative evidence of record indicates that the symptoms from the Veteran's GAD likely preclude him from securing and following any substantially gainful employment, beginning January 1, 2011. This is the earliest date at which is it factually ascertainable based on the record available to the Board at this time that the Veteran was unable to work, as discussed above. Reviewing the totality of the evidence, including the Veteran's medical findings detailing the severity of his service-connected GAD, the competent and credible lay assertions of unemployability due to limitations caused by his disability disabilities, and the cumulative objective evidence of record, the Board finds that the Veteran's service-connected GAD, coupled with his educational/training background and employment history, likely precludes him from securing and following any substantially gainful employment. The Board finds that the most probative evidence for a grant of TDIU is the finding of Dr. A.R.D., who considered the case file and her interview with the Veteran and concluded that his symptoms from his GAD impacted his ability to secure or follow a substantially gainful occupation. The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). REASONS FOR REMAND Entitlement to a TDIU before January 1, 2011, is remanded. The evidence of record reflects that before January 1, 2011, the Veteran may have been employed. A November 2015 notation by Dr. J.A.M., Ph.D., indicated that the Veteran reported that his son ran a non-profit grocery store for the aged, and he "currently" helped out 15 to 20 hours a week. Additionally, in his September 2021 Declaration, he reiterated that he owned his own remodeling company until 2011, and his income therefrom varied from month to month. In his September 2021 application for a TDIU, he reported that he grossed, at the highest $8,000.00 per month, from the said remodeling company. For purposes of a TDIU, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016); Faust v. West, 13 Vet. App. 342, 355-56 (2000) ("substantially gainful employment" for TDIU purposes is met where the annual earned income exceeds the poverty threshold for "one person," irrespective of the number of hours or days actually worked and without regard to any prior income history). Marginal employment may also be held to exist on facts found basis, including when self-employment results in earned annual income exceeding the poverty threshold for one person were performed in a "protected environment such as a family business or sheltered workshop." 38 C.F.R. § 4.16 (a). Here, the Board is unable to determine whether the Veteran's self-employment and the working in his son's grocery store is marginal employment because the claims file lacks sufficient information regarding his annual income in 2008, 2009, and 2010. Thus, a remand is warranted for this information. Accordingly, the matter is REMANDED for the following action: 1. Request that the Veteran submit a statement or report providing detailed information regarding employment and income history for 2008, 2009, and 2010. Invite the Veteran to submit additional supporting documentation, including tax returns or statements from his current or former employers. For any employment that the Veteran considers to be marginal as due to a protected work environment, request that the Veteran provide a detailed explanation as to what factors characterize the work environment as protected. 2. Then, readjudicate the claim. If any decision is adverse to the Veteran, issue a Supplemental Statement of the Case (SSOC), and allow the appropriate time for response. Then, return the case to the Board. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Stevens, 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.