Citation Nr: 21069971 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 18-45 252 DATE: November 22, 2021 ORDER Entitlement to an increased rating of 60 percent, but no higher, for diabetes mellitus type II from June 28, 2018 to June 28, 2019 is granted. Entitlement to an increased rating in excess of 40 percent for diabetes mellitus, type II for the other periods is denied. Entitlement to an increased rating in excess of 20 percent for peripheral neuropathy of the right femoral nerve is denied. Entitlement to an increased rating of 40 percent, but no higher, for the entire period on appeal for peripheral neuropathy of the right sciatic nerve is granted. Entitlement to an increased rating in excess of 20 percent for peripheral neuropathy of the left femoral nerve is denied. Entitlement to an increased rating of 40 percent, but no higher, for the entire period on appeal for peripheral neuropathy of the left sciatic nerve is granted. Entitlement to an increased rating in excess of 20 percent prior to July 14, 2021 and in excess of 40 percent thereafter for peripheral neuropathy of the right upper extremity is denied. Entitlement to an increased rating in excess of 20 percent prior to July 14, 2021 and in excess of 30 percent thereafter for peripheral neuropathy of the left upper extremity is granted. Entitlement to special monthly compensation for aid and attendance from August 15, 2017 is granted. FINDINGS OF FACT 1. The Veteran did not experience episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus progressive loss of weight and strength. 2. Prior to June 28, 2018 and after June 28, 2019, the Veteran did not experience episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider and did not have complications that would not be compensable if separately evaluated. 3. The Veteran's right femoral nerve peripheral neuropathy is manifest by no more than moderate incomplete paralysis. 4. The Veteran's right sciatic nerve peripheral neuropathy is manifest by no more than moderately severe incomplete paralysis. 5. The Veteran's left femoral nerve peripheral neuropathy is manifest by no more than moderate incomplete paralysis. 6. The Veteran's left sciatic nerve peripheral neuropathy is manifest by no more than moderately severe incomplete paralysis. 7. Prior to July 14, 2021, the Veteran's peripheral neuropathy of the right upper extremity is manifest by no more than mild incomplete paralysis of the major extremity. 8. From July 14, 2021, the Veteran's peripheral neuropathy of the right upper extremity is manifest by no more than moderate incomplete paralysis of the major extremity. 9. Prior to July 14, 2021, the Veteran's peripheral neuropathy of the left upper extremity is manifest by no more than mild incomplete paralysis of the minor extremity. 10. From July 14, 2021, the Veteran's peripheral neuropathy of the left upper extremity is manifest by no more than moderate incomplete paralysis of the minor extremity. 11. From August 15, 2017, the Veteran was so helpless as to need or require the regular aid and attendance of another person CONCLUSIONS OF LAW 1. From June 28, 2018 to June 28, 2019, the criteria for a disability rating of 60 percent, but no higher, for diabetes mellitus have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 2. Prior to June 28, 2018 and from June 28, 2019, the criteria for a disability rating in excess of 40 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.119, Diagnostic Code 7913. 3. The criteria for a disability rating in excess of 20 percent for right femoral nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 4. The criteria for a disability rating in excess of 40 percent, but no higher, for right sciatic nerve peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. The criteria for a disability rating in excess of 20 percent for left femoral nerve peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 6. The criteria for a disability rating in excess of 40 percent, but no higher, for left sciatic nerve peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 7. The criteria for a disability rating in excess of 20 percent prior to July 14, 2021 and in excess of 40 percent thereafter for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513. 8. The criteria for a disability rating in excess of 20 percent prior to July 14, 2021 and in excess of 30 percent thereafter for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8513. 9. The criteria for special monthly compensation at the aid and attendance rate from August 15, 2017 have been met. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from January 1963 to October 1969. The Veteran's claim for service connection for esophageal varices was granted in a rating decision in July 2021. It is accordingly no longer on appeal. The Veteran's request for special monthly compensation for aid and attendance was granted in a March 2021 rating decision beginning on January 10, 2018. VA is obligated to consider SMC in conjunction with the Veteran's pending request for an increased rating, which was received August 15, 2017. Accordingly, the period from August 15, 2017 to January 10, 2018 is still on appeal. The Board notes that although it grants higher ratings, with the exception of the period at issue for aid and attendance, the Veteran is already receiving the maximum amount payable for his ratings. As a result, the increase in rating will not result in an increase in disability payments. The Veteran is nevertheless entitled to a ruling on his claims and the Board will proceed accordingly. Increased Rating Disability ratings are based on VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found are warranted, a practice of assigning ratings referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119, 126 (1999). It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of the disability present. 38 C.F.R. § 4.2. 1. Entitlement to an increased rating in excess of 40 percent for diabetes mellitus, type II Diagnostic Code 7913 provides a structured scheme of specific, successive, cumulative criteria. Each higher rating includes the same criteria as the lower rating plus distinct new criteria. Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013). A 10 percent rating is warranted when diabetes is manageable by restricted diet only. A 20 percent rating is warranted when diabetes requires one or more daily injection of insulin and restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted when it requires one or more daily injection of insulin, restricted diet, and regulation of activities. Regulation of activities is defined as avoidance of strenuous occupational and recreational activities. A 60 percent rating is warranted when diabetes requires one or more daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted when diabetes requires more than one daily injection of insulin, restricted diet, and regulation of activities, with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Compensable complications of diabetes are evaluated separately unless they are part of the criteria used to support a 100-percent evaluation. Noncompensable complications of diabetes are considered part of the diabetic process. 38 C.F.R. § 4.119, Diagnostic Code 7913 (Note 1). Because Diagnostic Code 7913 contains successive criteria, the criteria for the lower rating must be met before a higher disability rating may be awarded. A higher rating cannot be granted based on a finding that the Veteran's disability picture more nearly approximates the criteria for the next higher rating. However, reasonable doubt regarding the presence of a criterion may be resolved in the Veteran' favor. Johnson v. Wilkie, 30 Vet. App. 245 (2018). The question in this appeal is whether the Veteran's diabetes mellitus requires one or more daily injections of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. VA examined the Veteran most recently in July 2021. More than one insulin injection was required per day, but the Veteran did not require regulation of activities as part of medical management. The Veteran also had fewer than two visits per month to his diabetic care provider for episodes of ketoacidosis and hypoglycemia. The Veteran was not hospitalized for ketoacidosis or hypoglycemia over the last 12 months and had not had progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. This report does not support a rating in excess of 40 percent. VA previously examined the Veteran in June 2018. This examination reported that the Veteran required more than one insulin injection per day and that the Veteran did require regulation of activities. The examiner found that the Veteran required weekly visits to his diabetic care provider for episodes of ketoacidosis and hypoglycemia and that two hospitalizations were required for ketoacidosis over the past twelve months, although none for hypoglycemia. The Veteran did not have progressive unintentional weight loss and loss of strength attributable to diabetes mellitus. The Veteran had other complications such as neuropathy and nephropathy, but both are compensated separately. The July 2018 examination includes the elements of 40 percent plus some of the elements of 60 percent. Missing from the 60 percent rating is the "plus complications that would not be compensable if separately evaluated." The use of the word "plus" emphasizes that the earlier components alone are not sufficient for a 60 percent rating. Thus, despite the acknowledgement of the other elements, the Veteran did not have uncompensated other complications noted and the examination does not support a rating in excess of 40 percent. (The Veteran did have other complications identified, but those complications were separately compensable.) If the Board looks outside the scope of the July 2018 examination, however, the Veteran also has service-connected erectile dysfunction due to diabetes. Although the Veteran is entitled to special monthly compensation for loss of a creative organ, his erectile dysfunction is not separately compensated under the rating criteria. Taken together, the July 2018 and ED weigh in favor of a higher 60 percent rating. VA previously examined the Veteran in November 2017. The examiner reported that more than one insulin injections were required per day, and that the Veteran did not require regulation of activities as part of medical management. The Veteran had fewer than two visits per month to his diabetic care provider for ketoacidosis and hypoglycemia and no hospitalizations within the last 12 months for ketoacidosis or hypoglycemia. The Veteran also had not had progressive unintentional weight loss and loss of strength attributable to diabetes. The Veteran did have complications of diabetes such as neuropathy and nephropathy, but these were separately compensated. The November 2017 examination, like the July 2021 examination, supports the elements of a 20 percent rating, but not a 40 percent or higher rating. Accordingly, the examination does not support a rating in excess of 40 percent. The Veteran's medical records include a treatment note from June 2018 indicating 1-2 hypoglycemic episodes per week. Other treatment notes generally denied or did not report hypoglycemic episodes or ketoacidosis. This supports a finding that the Veteran's diabetes worsened during part of 2018, but then returned to a baseline level. The Board will therefore stage the ratings. The beginning of the staged ratings is most appropriately the June 28, 2018 diabetes examination. The date of the reported hospitalizations is not clear, although the regular diabetic care appears to be about this time. The end shall be one year from the June 28, 2018 examination, or June 28, 2019. The criteria require a hospitalization within the past twelve months, and although the exact date of the hospitalizations is uncertain, providing a one-year period best provides the Veteran with the contemplated period of higher rating. Accordingly, a 60 percent rating is warranted from June 28, 2018 to June 28, 2019. For the remaining period on appeal a rating in excess of 40 percent is denied. 2. Entitlement to an increased rating in excess of 20 percent for peripheral neuropathy of the right femoral nerve 3. Entitlement to an increased rating in excess of 20 percent prior to July 14, 2021 and in excess of 40 percent thereafter for peripheral neuropathy of the right sciatic nerve 4. Entitlement to an increased rating in excess of 20 percent for peripheral neuropathy of the left femoral nerve 5. Entitlement to an increased rating in excess of 20 percent prior to July 14, 2021 and in excess of 40 percent thereafter for peripheral neuropathy of the left sciatic nerve 6. Entitlement to an increased rating in excess of 20 percent prior to July 14, 2021 and in excess of 40 percent thereafter for peripheral neuropathy of the right upper extremity 7. Entitlement to an increased rating in excess of 20 percent prior to July 14, 2021 and in excess of 30 percent thereafter for peripheral neuropathy of the left upper extremity Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.) Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. Paralysis of the anterior crural, or femoral, nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8626 and 8726.) Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a. Paralysis of all radicular groups is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8513. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8613 and 8713.) Under these criteria, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 for the major extremity and 30 for the minor extremity. Severe incomplete paralysis is rated as 70 percent for the major extremity and 60 percent for the minor extremity. Complete paralysis is rated as 90 percent for the major extremity and 80 percent for the minor. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). VA examined the Veteran in July 2021. The examiner recorded symptoms of mild upper and moderate lower extremity intermittent pain; moderate upper and lower extremity paresthesias or dysesthesias; and moderate upper and severe lower extremity numbness. This included decreased arm, hand, and knee touch test results and absent lower leg and foot touch test results. Position and vibration sense were decreased in the upper and absent in the lower extremities. The Veteran did not have atrophy or trophic changes. The examiner opined that the Veteran's neuropathy was equivalent to moderate incomplete paralysis of the radial, median, ulnar, and femoral nerves and moderately severe incomplete paralysis of the sciatic nerve. VA previously examined the Veteran in January 2019. The examiner recorded only lower extremity neuropathy and chose normal for the upper extremity. The lower extremity testing was similar to slightly better than the July 2021 examination, and the examiner opined that the Veteran had the same moderately severe sciatic nerve and moderate femoral nerve incomplete paralysis. VA also previously examined the Veteran in July 2018. The examiner opined that the Veteran had mild, multiple nerve upper extremity neuropathy and moderately severe neuropathy of the sciatic nerve. VA also previously examined the Veteran in November 2017. The examiner opined that the Veteran had mild, multiple nerve upper extremity neuropathy and moderate sciatic and femoral neuropathy. Initially, the VA examinations support an increased 40 percent rating for neuropathy of the sciatic nerve to at least July 2018. The examiners consistently opined that the Veteran's condition was moderately severe, and the accompanying symptoms were fairly consistent in severity over the three examinations. A higher rating is not warranted because the Veteran did not have either completely paralysis or marked muscular atrophy in any of his examinations or in his medical records. Although the November 2017 VA examiner only opined as to moderate peripheral neuropathy of the sciatic nerve, the demonstrated symptoms are similar between the July 2018 and November 2017 examinations. In both the Veteran had a mix of moderate and severe lower extremity symptoms, absent light touch sensation of the feet, and decreased positional sense. The symptoms are close enough that, giving the benefit of the doubt to the Veteran, a continuous 40 percent rating for the entire period on appeal is warranted for each sciatic nerve. Accordingly, a 40 percent rating, but no higher is granted from August 15, 2017. A higher rating is not warranted for the femoral nerves. Other than the July 2018 examiner, who didn't opine on the femoral nerve, the examiners have been consistent in opining that the Veteran had moderate incomplete paralysis. Although the Veteran had some symptoms of neuropathy rated as severe, the consistency of the examiners' opinions of a moderate overall level convinces the Board that the overall picture was more in line with the moderate symptoms for the femoral nerve. In addition, the reported symptoms must be distributed between the sciatic and femoral nerves. The more severe symptoms generally related to the Veteran's lower legs and feet. As the femoral nerve impacts the upper leg (see, e.g. the reference to the quadricep muscle in the criteria) the femoral nerve can be said to have only moderate symptoms. A higher rating is also not warranted for the radicular nerves. The examiners have consistently rated the Veteran's upper extremity radiculopathy as less severe than his lower extremity radiculopathy. The worst rating for symptoms at the July 2021 examination for the upper extremities were moderate to mild. These support a mild to moderate rating at the time, not a severe one, and the Veteran is already rated as moderate incomplete paralysis. Although the January 2019 VA examiner chose "normal" for the Veteran's upper extremity nerves, the Board finds that this examination does not support normal functioning nerves. Instead, based on the consistent earlier examinations and overall report of symptoms, the Board finds that the examiner did not examine the upper extremity nerves and chose normal as a default. The earlier July 2018 and November 2017 VA examiners both opined that the Veteran had mild incomplete paralysis of multiple radicular nerves. The symptoms of the November 2017 VA examination were listed as all mild to none, but the symptoms of the July 2018 VA examination included some moderate symptoms, some mild, and some none. The overall mild incomplete paralysis is entitled to some weight as it is consistent among two exams by skilled examiners after examining the overall functioning of the Veteran. Although the later examination reported some moderate symptoms, the Board agrees with the examiners that the overall disability picture during this time reflects a mild rather than moderate rating. The Board also acknowledges the worsening of the Veteran's symptoms, but this worsening is reflected in the later increase of ratings to moderate. Taken together, a rating higher than mild is denied prior to July 2021. Consideration has been given to the different diagnostic codes for upper extremity neuropathy. The Veteran has multiple impacted nerve groups in the upper extremities. The rating criteria, however, has explicit codes for groups of multiple nerves, including the group the Veteran is rated under, which is for impact of all the radicular nerves. These groups contemplate the combined effects of multiple groups and it would be against the criteria to rate each nerve separately when there is an explicit rating for the nerves together. 8. Entitlement to special monthly compensation for aid and attendance prior to January 10, 2018 Special monthly compensation (SMC) is payable to a veteran who, as a result of service-connected disabilities, is so helpless as to need or require the regular aid and attendance of another person. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b)(3). A veteran will be considered in need of regular aid and attendance if he or she is: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to five degrees or less; (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). Factual need for aid and attendance is based on the following criteria: the inability of the veteran to dress or undress himself or herself, or to keep himself or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); the inability of a veteran to feed himself or herself through the loss of coordination of upper extremities or through extreme weakness; the inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect a veteran from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). It is not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. The particular personal function which a veteran was unable to perform should be considered in connection with his or her condition as a whole and that it was only necessary that the evidence establish that a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Turco v. Brown, 9 Vet. App. 222 (1996). Bedridden status will also be a proper basis for the determination of the need for regular aid and attendance. Bedridden means that condition which, through its essential character, actually requires that the veteran remain in bed. The fact that a veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352 (a). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. at 54). The Veteran was granted special monthly compensation at the aid and attendance rate beginning January 10, 2018. The effectuating rating decision chose this date as it was the date of receipt of an intent to file. VA is obligated, however, to consider SMC as part of a claim for increased rating as part of its overall duty to maximize benefits for a Veteran. As the application date for the increased rating claim is prior to January 10, 2018, consideration of SMC prior to this date is required. The Veteran has already been granted SMC at the housebound rate for the entire period on appeal. The question for the Board is therefore limited to whether the Veteran required aid and attendance from the time of his application, received in August 2017 to his current grant of January 10, 2018. The Board will grant SMC for the period from August 15, 2017. The record indicates that the Veteran had a consistent need for aid and attendance, namely that his spouse was required for bathing, medication, and managing financial affairs. Although the earliest aid and attendance examination was from February 2018, his reports were applicable to the previous few months. This can be seen, for example, by his report of loss of driving ability for which he sought adaptation allowances as early as August 2017. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Saindon, 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.