Citation Nr: 21068899 Decision Date: 11/15/21 Archive Date: 11/15/21 DOCKET NO. 17-39 800 DATE: November 15, 2021 ORDER Entitlement to service connection for asthma is denied. FINDING OF FACT The Veteran's preexisting asthma was not permanently aggravated due to active-duty service. CONCLUSION OF LAW The criteria for entitlement to service connection for asthma have been met. 38 U.S.C. §§ 101, 106, 1110, 1111, 1131, 1153, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306, 3.310, 3.322, 4.97, Diagnostic Code (DC) 6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from August 1967 to September 1967. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his July 2017 substantive appeal, the Veteran requested "a [v]ideoconference hearing be scheduled at the Muskogee regional office." See VA Form 9, Appeal to Board of Veterans' Appeals. In correspondence dated August 2017, the Veteran's representative asked to "cancel [Veteran's] request for a hearing and decide the case from the evidence already in the record." In correspondence from the same date, the Veteran stated: "I want to withdraw my request for a Board of Veterans' Appeals hearing. Please forward my case to the Board of Veterans' Appeals without further delay." See August 2017 Third Party Correspondence. The matter was remanded in March 2019 for "treatment records" and "a VA examination regarding [Veteran's] preexisting asthma disorder." See March 2019 BVA Decision. The matter is returned to the Board for further consideration. 1. Entitlement to service connection for asthma The Veteran contends: "[A]fter entering the military, my preexisting condition of asthma became the responsibility of the United States Armed Forces...the fact that I was discharged shows clearly that my asthma had worsened beyond that of its original state when they recruited me." See April 2011 Travel Board Hearing Transcript. Duty to Notify and Assist Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). VA must notify the claimant of any information, including any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has satisfied its duties to inform the Veteran in this case. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 21.1032(a). The duty to notify was satisfied by November 2015 VA Standard 5103 Notice. See also March 2016 VA Rating Decision Narrative, July 2017 Statement of the Case, and July 2020 Supplemental Statement of the Case. VA's duty to assist functions to aid a claimant in obtaining evidence necessary to substantiate a claim, but VA is not required to provide assistance to a claimant when there is no reasonable possibility that assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A (2012). As for VA's assistance to the Veteran, the matter was remanded in March 2019 for the purpose of obtaining a VA Respiratory Conditions examination. The entire record was available to the June 2019 examiner, and the testing was sufficient to address all potential rating criteria. See 38 U.S.C. § 7104(d)(1); 38 C.F.R. § 4.97; see also June 2019 VA Respiratory Conditions examination report. The Board finds that VA has done everything reasonably possible under 38 C.F.R. § 21.1032(a) to assist the Veteran. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein, nor is there an indication that any outstanding evidence, relevant to the claim, needs to be obtained. See May 2019 VA Subsequent Development Letter ("We are working on your claim...Please complete both of the attached forms in order for us to assist with obtaining your records."). All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2017). Further development and further assistance by VA are not warranted. The RO's efforts have substantially complied with the instructions contained in the March 2019 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). An additional remand for further development of this claim would serve no useful purpose. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision. Service Connection A Veteran is entitled to compensation for a disability resulting from personal injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To establish service connection, evidence 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, the so-called 'nexus requirement.'" Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167) (Fed. Cir. 2004). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) ("[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence"). The Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the Veteran is competent to provide a diagnosis of an observable condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of renal pathology. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Under 38 U.S.C. § 1153, if an entrance examination notes a pre-existing condition that is alleged to have been aggravated, the Veteran may claim service-connected aggravation of that condition. In such cases, the burden falls on the Veteran to establish that the condition worsened in-service. Only when worsening of the condition is shown can it be presumed that the condition was aggravated by military service. At that point, the presumption of aggravation in-service can be rebutted by VA with evidence showing, by clear and unmistakable evidence, that the aggravation was due to the natural progression of the condition. See 38 U.S.C. § 1153; Horn v. Shinseki, 25 Vet. App. 231 (2012). Factual Background The Board has thoroughly reviewed the record in conjunction with this case, and although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the entire body of evidence. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record but does not have to discuss each piece of evidence). Rather, the Board's analysis will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). Analysis A Veteran who served after December 31, 1946, is presumed to be in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious and manifest) evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by such service. Only such conditions as are recorded in the examination reports are to be considered as noted. See 38 U.S.C. § 1111 (2012); 38 C.F.R. § 3.304(b) (2017). The presumption of soundness attaches only where there has been an induction examination in which the later complained-of disability was not detected. See Bagby v. Derwinski, 1 Vet. App. 225, 227 (1991). The provisions of 38 C.F.R. § 3.304(b) clarify that the term "noted" denotes "[o]nly such conditions as are recorded in the examination reports" and that "[h]istory of pre-service existence of conditions recorded at the time of examinations does not constitute a notation of such conditions." See Crowe v. Brown, 7 Vet. App. 238, 245 (1994); see also Cotant v. Principi, 17 Vet. App. 116 (2003). In an August 28, 1967, service entrance report of medical examination, the Veteran's lungs and chest, sinuses, mouth and throat were noted to be normal upon. clinical evaluation. His service entrance PULHES profile was '1' for stamina, psychiatric health, and each body area, thus indicating that the Veteran was then', in excellent physical and mental condition. See Odiorne v. Principi, 3 Vet. App. 456 (1992) (observing that the 'PULHES' profile reflects the overall physical and psychiatric condition of the veteran on a scale of I (high level of fitness) to 4 (a medical condition or physical defect which is below the level of medical fitness for retention in the military service). His physical category was "A," the highest classification of physical fitness. He was found qualified for duty at sea and in the field. There is no evidence of a diagnosis of asthma upon entrance examination. When no preexisting condition is noted upon entry into service, a Veteran is presumed to have been sound upon entry. The burden then falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that. demonstrates that the injury or disease preexisted service and was not aggravated by such service. The government may show a lack of aggravation by establishing by clear and unmistakable evidence that there was no increase in disability during service or that any increase in disability, Was due to the natural progress of the preexisting condition. See 38 U.S.C. § 1111; 38 C.F.R.3.304(b), Wagner v. Principi, 370 F. 3d 1089, 1096 (Fed. Cir. 2004); VAOPGCPREC 3-03 (July 16, 2003). In this case, the Board finds that there is. clear and unmistakable evidence that the asthma existed prior to service and was not aggravated by such service beyond the natural progression of the disease. The Veteran entered active service on August 28, 1967. While a clinical evaluation at entry into active-duty service did not note the Veteran's asthma, a self-evaluation at entry disclosed the preexisting asthma condition. See August 1967 Reports of Medical Examination and History. Service treatment records show that 8 days after service enlistment, the Veteran sought treatment for asthma symptoms. Service treatment records show that on September 5, 1967, the Veteran complained of asthma. On physical examination his chest was clear. He was returned to duty. On September 11, 1967, the Veteran again complained of asthma. He stated that he had had this condition for four or five years and had seen a civilian doctor. He stated that when he was exhausted, he had wheezing and that he could barely catch his breath. On physical examination his lungs were clear. The treating clinician wrote that it did not appear that the Veteran was then having any current "trouble." It appears from a change in handwriting that. the Veteran was referred to a physician. The physician wrote that the lungs were clear. The impression was rule out asthma. He was prescribed Tedral, an asthma medication. Service treatment records show that bronchial asthma was diagnosed 16 days after entrance into service. On September 12, 1967, the Veteran was brought in for treatment by ambulance. He was indicated to have completely blacked out, and to have experienced these attacks in the past. On physical examination inspiration was shorter than exhalation. His chest was clear. A physician wrote by history that this was the Veteran's third week of training, and that he had experienced asthma since age seven, all year round, with cold and damp precipitating the condition. It was noted that the asthma was said to last about. one-half hour but its effects would persist for a few days. By history, on this day he had a shortness of breath attack and "passed out." (Quotes in original). It is written in the treatment record that the Veteran "did not mention asthma at AFEES or BED." As noted above, the Veteran did report that he had experienced asthma either presently or in the past on his service entrance Report of Medical History (SF 89). On physical examination the Veteran was noted to have wheezing throughout the lung fields. The diagnosis was bronchial asthma that existed prior to service. He was prescribed ephedrine: and another medication. A September 19, 1967 Medical Board report cover sheets confirmed the Veteran's report that he "had asthma all his life." See September 1967 NavMed 6100 Medical Board Report Cover Sheet Attachment. The sheet indicated that the Veteran had asthma that was not incurred in the line of duty, that existed prior to entry and was not aggravated by service, and that may be permanent. He was recommended for discharge due to physical disability. An examination was conducted and the Board found that the "recruit was first seen at sick call during his third week of training complaining of asthma and giving a lifelong history of same. The diagnosis of asthma was clinically established and the recruit was treated with Tedral. The symptoms persisted and consequently he has been recommended for Medical Board processing." The report continues with "The recruit states that he has had asthma all of his life and that he has largely treated this himself...and states that he suffers from asthmatic attacks approximately once or twice a week, usually associated with exertion...." The lack of defect on entrance examination was noted. The examination report continues with the Veteran's report of treatment by physicians who told him he had asthma, but also reported that he was not been under regular care by these physicians. The Veteran was found to have bronchial asthma that existed prior to service. The narrative section of the report provided no opinion as to whether the condition was aggravated by active service. The profile for the Veteran's physical stamina was revised from a "1" to "3." The Medical Board recommended the Veteran for discharge from service. The Veteran was honorably discharge4 from active service due to physical disability on September 22, 1967. Under 38 U.S.C. § 1153, aggravation of a preexisting injury or disease is presumed where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progress of the disease. See 38 U.S.C. § 1153. However, aggravation may not be conceded where the disability underwent no increase in severity during service based on all the evidence of record pertaining to the manifestations of the disability prior to, during and after service. See 38 C.F.R. § 3.306(b) (2017). To support a finding of aggravation, the evidence must establish that the underlying disability underwent an increase in severity. The occurrence of symptoms, in the absence of an increase in the underlying severity, does not constitute aggravation of the disability. See Davis v. Principi, 276 F.3d 1341 (Fed. Cir. 2002). Under 38 U.S.C. § 1153, the burden is on the Veteran to provide evidence that his asthma condition worsened in service. See 38 U.S.C. § 1153; Horn v. Shinseki, 25 Vet. App. 231 (2012). The January 2012 VA examiner concluded: "Although heavy physical exertion often causes an exacerbation of asthma [symptoms] in certain groups of individuals, of which the Veteran is included, it does not permanently worsen the disease. There is no pathophysiological basis for the contention that exercise would cause permanent damage to the lungs, bronchi, or would alter the physiology of the respiratory system so as to cause a predisposition to bronchoconstriction." The January 2012 examiner continued: "[I]t is not apparent that he experienced chronic worsening of the condition after service." See January 2012 VA Respiratory Conditions examination report. The VA examiner opined that the asthma clearly and unmistakably existed prior to service and was clearly and unmistakably not aggravated in service beyond the natural progression the disease. The examiner opined that the asthma existed prior to the service. The examiner indicated that the rationale for this opinion was that the Veteran reported having asthma upon his entrance examination and he reported having a history of asthma for 4 or 5 years or since age 7 when treated in service. The examiner stated that the Veteran reported at the VA examination that he had asthma prior to entering service and he reported this on his service entrance examination. The Veteran is competent to report observable symptoms such as the difficulty breathing. The examiner also indicated that from a medical standpoint, the onset of asthma rarely begins abruptly at age 19, rather there is a history of symptoms beginning when the individual i a child. The examiner stated that the medical evidence in the service treatment records is consistent with the medical history provided by the Veteran and is consistent with the typical clinical course of asthma. The examiner also opined that the asthma did not begin in service, did not worsen in service, and was not related to an incident in service. The examiner indicated that the rationale was that although heavy physical exertion often caused an exacerbation of asthma in certain groups of individuals, of which this Veteran is included, it does not permanently worsen the disease. The examiner stated that there is no pathophysiological basis for the contention that exercise would cause permanent damage to the lungs, bronchi, or would alter the: physiology of the respiratory system as to course a predisposition to broncoconstriction. The examiner stated that conversely, improving a patient's cardiovascular fitness reduces the minute ventilation needed for any given level of exercise thereby decreasing the stimulus for bronchoconstriction. Thus, the regular long-term exercise may be helpful in preventing the onset of exercise induced bronchoconstriction. The examiner stated that the clinical course of this Veteran while he was in service is consistent with that of a patient who has exercise induced asthma. The examiner stated that it was apparent that the strenuous physical actively caused an exacerbation of the Veteran's asthma during service but it was not apparent that he experienced chronic worsening of the condition after service. The examiner stated that this is evidenced by the fact that the medical records after service do not indicate that the Veteran's asthma increased in severity. The examiner concluded that there was no medical evidence that the asthma chronically worsened after service and a contention that exercise worsened the asthma is not consistent with the known physiology of the. exercise in relation to the disease. The Board finds that the January 2012 VA medical opinion to have great evidentiary weight in this case. The VA medical reviewer considered the claims folder including the service treatment records and the Veteran's entire medical pertinent to the asthma including the Veteran's own statements concerning this disease in arriving at the medical opinion. The examiner provided a detailed rationale for the opinion, cited to the facts which supported the opinion, and also cited to the medical research which supports the medical opinion. The examiner's opinion is supported by a rationale and is adequate for adjudication purposes. Nieves-Rodriguez v. Peake, '22 Vet. App. 295, 304 (2008). A February 2013 VA treatment note recorded: "Things that trigger his asthma include exercise, exposure to dust and pollen. He's not aware of any other triggers...Used to smoke 1 pack of cigarettes daily." See February 2013 VA Pulmonary Consult Note. The June 2019 VA examiner concluded: "The asthma that existed prior to service was manifested in-service during exercise, which naturally flares existing asthma. However, it did not aggravate it beyond its natural course, since any exercise temporarily exacerbates the condition in any setting and improves when not exercising. Any mold, dust and heat temporarily flared the underlying asthma but resolved when out of exposure and did not lead to any permanent aggravation of the condition. No permanent worsening of the condition was caused by the brief in-service stint." See June 2019 VA Respiratory Conditions examination report. The Veteran provided a private medical opinion in November 2015. The examining physician reviewed the Veteran's DD214, Certificate of Release, NavMed Form 6100, Medical Board Cover Sheet, and Medical Board Certificate relative to Physical Evaluation Board hearing in preparation for his report. In relevant part, the Veteran-provided medical report contained the following information: "Towards the third week of training, he began having to use an inhaler much more often. He passed out and was taken by ambulance to the hospital. He was diagnosed with asthma and was discharged due to bronchial asthma...After the Marines, he had a significant increased need for the use of the inhaler...Over the last many years, he has had to use Symbicort twice a day and Albuterol inhalers for breakthrough asthma...It is my medical opinion that it is more likely than not that he had bronchial asthma prior to going into the Marines...It is my medical opinion that while he was in the Marines, significant exercise caused exercise-induced bronchial asthma attacks. It is my medical opinion that it is more likely than not that his exposures to the mold and dust at Parris Island aggravated his sensitivity to bronchial asthma and reactive airway disease and has made him worse...that being in the Marines aggravated his bronchial asthma." See November 2015 Ellis Clinic Independent Medical Examination. The private medical examiner for the Veteran provided an addendum opinion in July 2020. In relevant part, the examining physician concluded: "I have reviewed the Board of Veterans' Appeals Remand. I have reviewed the [Electra Memorial Hospital] 7/3/19 spirometry. The spirometry was unable to be completed because the Veteran was exposed to a bronchodilator. It caused such severe coughing that he could not complete the test. It is my medical opinion [that] this is more likely than not indicative of the worsening of his asthma that occurred in the service...Because of his severe asthma symptomatology, he was not able to complete just a basic spirometry. Whereas he did not have this type of symptomatology from his asthma before he went into the Marines, it became much worse in the Marines...it remains my medical opinion it is more likely than not that his asthma was exacerbated by his military service." See July 2020 Ellis Clinic Expert Medical Opinion Concerning Service-connected Disability. The Board affords little credibility and limited probative value to the private opinions provided by the Veteran. First, the opinions are not based on a review of the claims file and the complete evidence of record. See November 2015 Ellis Clinic Independent Medical Examination (DD214, DD215, Medical Board Cover Sheet, and Medical Board Certificate relative to Physical Evaluation Board Hearing) and July 2020 Ellis Clinic Expert Medical Opinion Concerning Service-connected Disability ("I have reviewed the Board of Veterans' Appeals Remand. I have reviewed 7/3/19 spirometry."). Second, the opinions do not account for the Veteran's pre-service medical history, summarized by the Veteran as having "asthmatic attacks approximately once or twice a week, sometimes associated with exertion and sometimes not." See September 1967 NavMed 6100 Medical Board Report Cover Sheet Attachment. Third, the opinions do not account for the Veteran's treatment history, described by the Veteran as: "asthma since age 7, all year round, cold, exercise, damp precipitates, last 12 hour, but effects drag on for few days." See September 1967 NavMed 10, Sick Call Treatment Record. Fourth, the opinions do not contain a basis for the conclusion: "the mold and dust at Parris Island aggravated his sensitivity to bronchial asthma and reactive airway disease and has made him worse," supported with data from the record. See September 1967 NavMed 10, Sick Call Treatment Records ("Private states that when he is exhausted and it is damp, he has wheezing" and "all year round, cold, exercise, damp precipitates"). Conclusion In summary, while the 38 U.S.C. § 1111 presumption of soundness does not apply to the Veteran due to the preexisting condition, disclosed at entry into service, the Board finds that the Veteran has not satisfied the 38 U.S.C. § 1153 burden of showing that his preexisting asthma condition worsened in-service. See Horn v. Shinseki, 25 Vet. App. 231 (2012). The Veteran provided lay evidence through VA treatment and VA examinations throughout the course of his appeal with respect to the presence of asthma-related symptoms. However, the Board assigns more weight and probative value to the contemporaneous medical evidence, including service medical records and an in-service self-evaluation, in which the Veteran endorsed ever having had "Asthma," VA treatment records, which do not document an increase in asthma attacks, and VA medical examinations, which could not establish a permanent worsening of the Veteran's preexisting asthma condition. The January 2012 and June 2019 VA examinations are the most probative evidence of record on the question of a nexus to service. The opinions were based on an extensive review of all of the evidence, including lay statements from the Veteran, were supported by a detailed rationale, provided data to support any conclusions, and they provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The January 2012 and June 2019 VA medical opinions are consistent with the evidence of record, including a service self-evaluation admitting to asthma, and service treatment records documenting asthma attacks "year round, cold, exercise, damp precipitates." The VA medical examinations provide compelling evidence against the Veteran's claim for service connection. There is no competent, credible evidence to refute the examiner opinions. The weight of the probative evidence of record is against a finding that the Veteran is entitled to service connection for an asthma condition. The Board acknowledges the Veteran's lay assertions that he believes his preexisting asthma condition worsened due to service, and the Board is sympathetic to the Veteran's claim. However, the Veteran is not shown to have medical education or experience. He is a lay person and is competent to report (1) symptoms that are observable to a layperson, e.g., wheezing; (2) symptoms at the time supporting a later diagnosis by a medical professional; or (3) a contemporaneous medical diagnosis. See Davidson v. Shinseki, 581 F.3d 1313 (2009). The Veteran is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition, as these are medically complex issues. Conclusory, generalized lay statements that military service worsened his asthma condition are insufficient to prove service connection. In addition, for reasons that include the lack of evidence reviewed, failure to consider treatment and symptom history, and the absence of a basis for the assertion that "mold and dust at Parris Island aggravated" the Veteran's asthma condition, the assertions of the private opinion provider do not constitute evidence upon which service connection can be granted. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his asthma symptoms. The Board is aware of the Veteran's contentions that an asthma condition impacts his daily living. Moreover, the Board notes that the Veteran is competent to report observable symptoms such as shortness of breath and wheezing. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). To that end, the Board acknowledges that the Veteran, in advancing this appeal, believes that his asthma condition warrants service connection. The overall weight of the evidence is against a finding that the Veteran has an asthma condition that was permanently worsened during military service. Therefore, service connection for an asthma condition is not warranted, and the claim must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Small, Attorney Advisor 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.