Citation Nr: 21070793 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 15-44 039 DATE: November 26, 2021 ORDER Entitlement to a rating in excess of 10 percent for history of septoplasty with history of sinusitis and occasional headaches is denied. Entitlement to a rating in excess of 10 percent for left knee partial meniscotomy and excision of the popliteal cyst, on the basis of instability, prior to November 24, 2020, is denied. Entitlement to a separate, 20 percent rating for residuals of left knee partial meniscotomy, prior to November 24, 2020, is granted. FINDINGS OF FACT 1. The Veteran's history of septoplasty with history of sinusitis and occasional headaches has not been manifested by three or more incapacitating episodes per year requiring prolonged antibiotic treatment, or three to six non-incapacitating episodes characterized by headaches, pain, and purulent discharge or crusting. 2. Prior to November 24, 2020, the Veteran's left knee disability was manifested by no more than slight instability. 3. Prior to November 24, 2020, the Veteran's left knee was manifested by partial meniscectomy with frequent episodes of locking, pain, and effusion; flexion was better than 45 degrees, extension was full. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for history of septoplasty with history of sinusitis and occasional headaches have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.97, Diagnostic Code 6513. 2. The criteria for a rating in excess of 10 percent for left knee partial meniscotomy and excision of the popliteal cyst, on the basis of instability, prior to November 24, 2020, have not been met. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 3. The criteria for entitlement to a separate 20 percent rating for residuals of left knee partial meniscotomy, prior to November 24, 2020, have been met. U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5258, 5260, 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1982 to August 1989. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Board remanded the remaining matters on appeal to the Agency of Original Jurisdiction (AOJ) for additional development. The case has since returned to the Board for appellate disposition. Following the Board's remand, the AOJ assigned a 100 percent rating for the Veteran's left knee disability on the basis of left knee total arthroplasty, effective November 24, 2020. A 30 percent rating is to be assigned effective January 1, 2022. Given the assignment of a 100 percent rating, and that the 30 percent rating does not go into effect until 2022 and after this decision, the Board will only address the period prior to November 24, 2020, as noted on the title page. The Board has considered the Veteran's representative's request that the Veteran be afforded new examinations, asserting in an October 2021 brief that the January 2020 examinations were inadequate. As to the Veteran's sinus disability, the 2020 examination report indicates that the examiner reviewed the record, conducted examination, provided a diagnosis, and noted pertinent findings responsive to the rating criteria. Records pertinent to the Veteran's prior surgical treatment are already of records Accordingly, remand for new examination is not warranted. As for the Veteran's left knee, as the Board has rated all residuals of the Veteran's knee disabilities as part of his service-connected disability, remand for an orthopedist for determination as to which knee symptoms are attributable to each knee diagnosis is not necessary. Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. Increased rating for history of septoplasty with history of sinusitis and occasional headaches The Veteran's history of septoplasty with history of sinusitis and occasional headaches (hereinafter "sinus disability") is rated as 10 percent disabling pursuant to pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6599-6513. The Veteran filed the instant claim for increased rating in June 2013. Under Diagnostic 6513, maxillary sinusitis is to be rated under the General Rating Formula for Sinusitis. Under the General Rating Formula, a noncompensable evaluation is assigned when the disability is detected by x-ray only. A 10 percent evaluation is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent evaluation is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 50 percent evaluation is assigned for such disability following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. 38 C.F.R. § 4.97, Diagnostic Code 6513. An incapacitating episode of sinusitis means one that requires bed rest and treatment by a physician. Id., Note 1. A May 2013 private CT scan of the sinus revealed left maxillary and ethmoid sinus mucosal thickening, bilateral patent OMUs, and anterior left nasal septal deviation. In an April 2010 statement resubmitted in May 2013, the Veteran reported sinus infections, drainage, and similar symptoms after his in-service rhinoplasty. On VA examination in October 2013, the Veteran reported that his sinus disability had worsened and would likely need another procedure to have the sinuses scraped. He took daily medication for his sinuses. He indicated that he had experienced sinus infections since his last examination in 2010, though he did not recall how many or how long they were treated. These were treated with antibiotics. The examiner noted the following findings, signs, or symptoms attributable to maxillary sinusitis: episodes of sinusitis, near-constant sinusitis, and headaches. He had headaches 2-3 times per month lasting 2-3 days at a time; they were not incapacitating. The examiner noted that the Veteran had not had incapacitating or non-incapacitating episodes of sinusitis in the last 12 months. The Veteran had previously had sinus surgery (rhinoplasty) in 1988, as well as scraping of the sinuses in 1999. The examiner diagnosed chronic sinusitis and indicated that the disability did not impact the Veteran's ability to work. A November 2013 report from McLaren Regional Medical Center indicates that the Veteran underwent septoplasty, bilateral nasal sinus endoscopy with maxillary antrostomies, and bilateral turbinate cauterization. A December 2013 statement from Dr. S. reflects that the Veteran underwent surgery to correct a deviated nasal septum which occurred after he was hit in the nose while in service. The surgery entailed the opening of the nasal passage, which included cutting the bone and cartilage to enlarge the nasal passages. In his November 2014 notice of disagreement, the Veteran reported that his sinusitis was symptomatic, near constant, and caused headaches 2-3 times per month. On VA examination in November 2015, the Veteran reported that he had surgery to clean out his sinus by his ENT specialist in an outpatient clinic. The intent of the procedure was to help avoid infection. His last infection was in 2015 and treated with antibiotics. When he had an infection, he could not breathe through his nose and experienced frontal headaches. The number of sinus infections had been reduced by immunotherapy for allergies. The examiner indicated that chronic sinusitis was detected by imaging studies only and was characterized by episodes of sinusitis (but not near-constant sinusitis), headaches, and mild nasal obstruction of the left nares. The examiner further noted that the Veteran had not had non-incapacitating or incapacitating episodes of sinusitis in the last 12 months. It was also noted that the Veteran had undergone rhinoplasty, as well as cleaning and scraping of the sinuses in 1999 and 2014. There was no nasal obstruction greater than 50 percent for either nares. CT scan of the sinuses revealed acute on chronic sinusitis involving the left maxillary sinus with increased bilateral mastoid sinusitis and middle ear effusions. The examiner diagnosed sinusitis and indicated that the disability did not impact the Veteran's ability to work. On his December 2015 VA form 9, the Veteran reported that he had more than 6 episodes of sinusitis per year that he had to treat with antibiotics. On VA examination in January 2020, the examiner noted no signs or symptoms related to sinusitis, incapacitating or non-incapacitating episodes, or other pertinent physical findings or symptoms. The examiner diagnosed sinusitis and indicated that the disability did not impact the Veteran's ability to work. In sum, the record does not reflect treatment for incapacitating episodes of sinusitis with physician-prescribed bedrest, with none of the examiners noting a history of such during a 12-month period relevant to the appeal. As to non-incapacitating episodes, the criteria for a 30 percent rating are stated in the conjunctive, which means that all three conditions must be met: greater than six episodes per year consisting headaches, pain, and crusting or purulent discharge to warrant a rating of 30 percent or greater. See e.g., Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (finding that the use of the conjunctive "and" in the criteria for a 40 percent rating for diabetes "insulin, restricted diet, and regulation of activities" meant that entitlement to that rating required all three criteria to be met.). In this case, although the Veteran has reported experiencing episodes of sinusitis, none of the examiners indicated that the Veteran experienced 7 or more non-incapacitating episodes of sinusitis characterized by headaches, pain, and purulent discharge or crusting in a 12-month period, and treatment records do not document such episodes. The evidence does not reflect that the Veteran's sinusitis symptoms other than headaches satisfy the criteria for a higher rating based on non-incapacitating episodes. Similarly, although near-constant sinusitis with headaches is noted on exam in 2013, pain, tenderness of the affected sinus, and purulent discharge or crusting after repeated surgeries has not been indicated. Accordingly, the criteria for a 50 percent rating have also not been more nearly approximated. Finally, the Board has considered the applicability of other diagnostic codes, and in particular Diagnostic Code 8100 for migraine headaches. Here, however, although the record indicates several headaches per month, characteristic prostrating attacks supporting a 30 percent rating have not been demonstrated. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Given the record before it, the Board finds that evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a). Accordingly, the Board concludes that an increased rating for his service-connected sinus disability is not warranted. 2. Evaluation of left knee Prior to November 2020, the Veteran's left knee disability was rated as 10 percent disabling pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5299-5257. The Veteran filed the instant claim for increased rating in June 2013. As discussed below, the Veteran also underwent left knee partial meniscotomy in June 2013. He was assigned a 100 percent total temporary rating for the period from June 11, 2013, through January 1, 2014. Given that the Veteran is in receipt of a 100 percent rating for this period, the Board will also not discuss this period, as well as the period from November 24, 2020, for which a 100 percent rating has also been assigned. Impairment in the form of recurrent subluxation or lateral instability warrants a 10 percent rating if slight, 20 percent if moderate, and 30 percent if severe. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The normal flexion of the knee is 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II. Limitation of flexion to 60 degrees warrants a 0 percent rating. Flexion limited to 45 degrees warrants a 10 percent rating. Flexion limited to 30 degrees warrants a 20 percent rating. Flexion limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260. The normal range of extension of the knee is 0 degrees. Limitation of extension to 5 degrees warrants a 0 percent rating. Extension limited to 10 degrees warrants a 10 percent rating. Extension limited to 15 degrees warrants a 20 percent rating. Extension limited to 20 degrees warrants a 30 percent rating. Extension limited to 30 degrees warrants a 40 percent rating. Extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Symptoms associated with the removal of semilunar cartilage warrant a 10 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5259. Dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258. In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the majority of these diagnostic codes were not changed. The only relevant change is to Diagnostic Code 5257, which provides that a 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability, or for sprain/ligament tear causing persistent instability without prescription for an assistive device, while a 20 percent rating is warranted for: a) sprain, incomplete ligament tear, or repaired complete ligament tear causing permanent instability, and a medical provider prescribed brace or assistive device for ambulation, or; b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribed assistive device or bracing for ambulation, or for a diagnosed condition involving the patellofemoral complex with recurrent instability requiring prescription for a brace and a cane or walker. 38 C.F.R. § 4.71a, Diagnostic Code 5257 (effective February 7, 2021). Significantly, a rating under Diagnostic Code 5259, cartilage, semilunar, removal (see also Diagnostic Code 5258, dislocated semilunar cartilage) already contemplates limitation of motion, such that separate ratings for limitation of motion (e.g., Diagnostic Codes 5003, 5260, or 5261) would violate the regulatory prohibition against pyramiding under 38 C.F.R. § 4.14. See VAOPGCPREC 9-98 (August 14, 1998). In a June 2013 statement, the Veteran reported that he had a lot of pain and discomfort in his left knee, along with instability and limited range of motion. He indicated that he wore a large knee brace which made mobility difficult. He also had arthritis in the joint. He expressed that he was entitled to ratings for instability as well as limitation of flexion and extension. Private treatment records reflect that the Veteran underwent left knee arthroscopy in May 2013 for treatment of a torn medial meniscus of the knee. Partial medial meniscectomy and chondroplasty was noted. Further treatment records indicate that the Veteran's knee became infected, and he had several debridement surgeries in 2013. In his November 2014 notice of disagreement, the Veteran reported that his knee was tender and painful on movement, that he had loss of range of motion and that his knee was unstable, requiring him to wear a knee brace. He was informed by his orthopedic specialist that his knee had worn to the point of replacement. On VA examination in November 2015, the Veteran reported that he received injections to reduce knee swelling every 6 to 8 months. He reported lack of flexion with daily pain rated 6-7 out of 10, with flare-ups to 8/10 at the end of the workday. The knee throbbed and pain traveled down the lower leg. He had grinding and popping. After work, he iced the knee for pain relief. The pain was aggravated by activities such as climbing into trucks at his job. For exercise, he went up and down stairs in his house. Range of motion testing revealed flexion and extension from -5 to 105 degrees. Pain was noted on examination, and there was evidence of pain with weightbearing but not on palpation. There was evidence of crepitus. There was no loss in range of motion upon repetition. The examiner indicated that the Veteran's left knee was being examined immediately after repetitive use over time and that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examiner also noted that the exam was being conducted during a flare-up, but that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-up. Additional factors contributing to disability include interference with climbing, squatting, and sports-recreational activities. Muscle strength testing revealed full strength with no atrophy. There was no ankylosis. There was no history of recurrent subluxation or lateral instability, but there was a history of recurrent effusion. Joint stability testing revealed no abnormalities. The examiner indicated that the Veteran had a meniscal tear with frequent episodes of joint pain and effusion. Residuals signs and symptoms due to the June 2013 meniscectomy included swelling, decreased motion, and severe degenerative changes. There was a popliteal cyst measuring 10 centimeters by 7 centimeters, as well as a surgical scar that was not painful or unstable. The Veteran regularly used a brace for support, swelling, and stability. X-ray of the knee revealed severe osteoarthritis throughout the left knee with edema and effusion. The examiner diagnosed chronic left knee strain, status post partial meniscotomy and excision of popliteal cyst with severe degenerative changes. Functional impact included difficulties with climbing, squatting, kneeling or prolonged standing, but he was able to continue his job at that time and had not missed work. On his VA form 9, the Veteran reported that arthritis was still present in the knee and his joint ached and popped on movement. He experienced pain daily at work. When he left work, he could hardly walk to get to his car to go home. He now took stronger medication and received injections twice a year. It was worse with flare-up. On VA examination in January 2020, the Veteran denied flare-ups and indicated that he had sustained a fall from a tree at work wherein he suffered injuries including a fractured femur, hip, and knee and multiple rib fractures. Range of motion testing revealed flexion and extension from 0 to 125 degrees with no pain noted on exam, no evidence of pain with weightbearing, and no objective evidence of localized tenderness or pain on palpation. There was no evidence of crepitus. There was no additional loss of motion on three repetitions of range of motion. The examiner indicated that the examination was neither medically consistent nor inconsistent with his statement's describing functional loss with repetitive use over time, but that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. No response was provided for flare-ups as the Veteran denied flare-ups. There was no evidence of pain on passive range of motion testing or on non-weight bearing. Muscle strength testing was full and there was no atrophy. No ankylosis was present. There was no history of recurrent subluxation, lateral instability, or effusion. Joint stability testing was performed and revealed no abnormalities. The examiner indicated that the Veteran had undergone partial meniscectomy and had no residuals. The Veteran regularly used a brace. The examiner diagnosed left knee strain, status post partial meniscectomy, excision of popliteal cyst with degenerative changes. The disability caused functional limitations in prolonged standing and climbing. In an addendum opinion, the examiner expressed that the Veteran degenerative joint disease was less likely as not a progression of the service-connected partial meniscectomy; however, she was unable to resort without speculation as to which knee symptoms were attributed to each diagnosis, and this question would be more appropriate for an orthopedist. On VA examination in July 2021, the Veteran reported that he had arthroscopy and partial meniscotomy in 1986, and then excision of a popliteal cyst in 1987. He underwent arthroscopy and multiple debridements for infections of his left knee in 2013. In 2017 he fractured the distal left femur. In November 2020, he had a total knee replacement. Current symptoms included popliteal cyst that caused pain to the posterior knee and calf, and stiffness. With respect to flare-ups, he had more pain and stiffness with increased activity and rainy weather. During flare-ups, he needed to stop activity and rest his knee. Range of motion testing revealed flexion to 90 degrees and extension to 5 degrees. Passive range of motion was unchanged. There was evidence of pain that did not result in or cause functional loss. There was no objective evidence of crepitus. There was moderate tenderness to touch of the popliteal cyst. There was no change in range motion on repetition. On repeated use over time, the examiner estimated that range of motion was from 75 to 15 degrees, while it was estimated to be from 80 to 20 degrees on flare-up. The examiner noted a history of complete ligament tear, but that the tear had not been repaired nor was use of a brace, cane, or walker required by prescription. There was no recurrent patellar instability. A meniscal condition with frequent episodes of joint pain and effusion was noted. The Veteran had undergone left knee replacement in November 2020, with chronic residuals consisting of severe painful motion or weakness. The examiner diagnosed meniscal tear, anterior cruciate ligament tear (1999), knee joint osteoarthritis, popliteal cyst, and ACL tear on the left. The examiner indicated that the Veteran stopped working after the femur fracture in 2017, but that the left knee total replacement would have been undertaken regardless because of degenerative arthritis post-meniscectomy and continued popliteal cysts causing both pain and stiffness. The examiner indicated that the Veteran's arthritis was directly related to, and was a progression of, the service-connected disability. In light of the foregoing, the Board finds that that the preponderance of the evidence does not support a rating in excess of 10 percent for the Veteran's left knee disability under Diagnostic Code 5257 for instability. As discussed above, there is no objective evidence of joint instability on the various VA examinations of record. The currently assigned 10 percent rating is based on the Veteran's probative reports of left knee weakness and instability requiring use of a brace. The description of his left knee instability is not consistent with moderate impairment. The Board notes that he did not describe symptoms occurring on any consistent basis nor did he report a history of falls due to instability, and again, no objective findings have been demonstrated. The Board has considered the revised criteria of 5257 however, as sprain, incomplete ligament tear, or repaired complete ligament tear causing permanent instability requiring a physician-prescribed brace, unrepaired or failed repair of complete ligament tear causing persistent instability, or a diagnosed condition involving the patellofemoral complex with recurrent instability has not been shown, a 20 percent rating under the revised criteria is also not warranted. Given the Veteran's history of meniscal tear and partial meniscotomy, the Board has also considered whether a higher rating is warranted under Diagnostic Code 5258 or 5259, for dislocation or removal of the semilunar cartilage (meniscus). In this case, although the Veteran's meniscus was not removed, he has a history of tear and partial meniscotomy. VA examinations dated in 2015 and 2021 record reflect frequent episodes locking, pain, and effusion. These symptoms are consistent with a 20 percent rating under Diagnostic Code 5258, which is the maximum rating under this code. Accordingly, the Board resolves reasonable doubt in the Veteran's favor and finds that a 20 percent rating, but no higher, is warranted. The Board has considered whether higher rating is warranted under Diagnostic Code 5260 or 5261 for limitation of flexion or extension. In order to warrant a compensable rating for limitation of motion, flexion must be limited to 45 degrees or less, and extension to 10 degrees or more. 38 C.F.R. § 4.7; DeLuca. In this case, the medical evidence establishes flexion to well over 100 degrees and generally full extension of the knee, though estimated range of motion on examination following the Veteran's knee replacement was from 75 to 15 degrees on repeated use over time. However, such findings are not relevant to the period on appeal as the findings are from after Veteran underwent surgery and has a total 100 percent rating following the knee replacement surgery. As flexion is not limited to 45 degrees or more, and extension is not limited to 10 degrees or more, a compensable rating for limitation of flexion, and separate rating for limitation of extension, are not warranted. In addition, as noted above, when assessing the severity of a musculoskeletal disability that is at least partly rated on the basis of limitation of motion, VA is generally required to consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination. See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59. Here, while the Veteran has reported increased limitation on flare-up, neither the medical nor lay evidence suggests that he has compensable limitation of flexion or compensable limitation of flexion during the period on appeal. The assignment of a 20 percent rating under Diagnostic Code 5258 is thus the greater benefit. As noted above, the assignment of a separate rating for painful and limited flexion or extension under Diagnostic Code 5260 or 5261 would amount to pyramiding and is strictly prohibited. The Veteran is separately rating for scarring of the left knee. This matter is not currently before the Board. Furthermore, there is no credible evidence of ankylosis, impairment of the tibia and fibula, or genu recurvatum. (Continued on the next page) Accordingly, the Board finds that a separate 20 percent rating, but no higher, for the Veteran's left knee disability under Diagnostic Code 5258 is warranted, but that a rating in excess of 10 under Diagnostic Code 5257 for left knee instabilityprior to November 24, 2020must be denied. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C.§ 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). D. SMART Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. E. Wilkerson, 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.