Citation Nr: 21071070 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 17-04 740 DATE: November 29, 2021 ORDER Entitlement to survivor pension benefits is denied. Entitlement to accrued benefits is denied. New and material evidence having been received, the claim for service connection for the Veteran's cause of death is reopened, and to this extent only, the appeal is granted. Entitlement to service connection for the Veteran's cause of death is denied. FINDINGS OF FACT 1. The Veteran's service with a recognized guerilla unit and the Philippine Commonwealth Army is not qualifying service for the purposes of pension benefits. 2. The claim on appeal for entitlement to accrued benefits was not filed within one year of the Veteran's death in May 1995, nor did the Veteran have any pending claims at the time of his death. 3. The Veteran died in May 1995. The Veteran's Certificate of Death indicates that his immediate cause of death was cardio-respiratory arrest with a contributory cause of chronic obstructive pulmonary disease (COPD). 4. The claim for entitlement to service connection for the Veteran's cause of death was denied in a June 2002 rating decision, which became final. 5. New and material evidence has been submitted since the June 2002 rating decision that relates to an unestablished fact necessary to grant the claim for service connection for the Veteran's cause of death. 6. The Veteran had no service-connected disabilities at the time of his death. 7. The competent evidence does not establish that the Veteran's cardio-respiratory arrest or COPD were incurred in or attributable to service. 8. Disability or death will not be considered service-connected when attributable to the Veteran's use of cigars, cigarettes, pipe tobacco, or smokeless tobacco, as a matter of law. CONCLUSIONS OF LAW 1. The criteria for eligibility for survivor pension benefits are not met. 38 U.S.C. §§ 101, 107, 1521; 38 C.F.R. §§ 3.3, 3.6. 2. The criteria for entitlement to accrued benefits are not met. 38 U.S.C. §§ 101, 5121; 38 C.F.R. § 3.1000. 3. The June 2002 decision that denied entitlement to service connection for the Veteran's cause of death is final. 38 U.S.C. §§ 7103, 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. 4. The criteria to reopen the claim for service connection for the Veteran's cause of death are met. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. The criteria for service connection for the cause of the Veteran's death are not met. 38 U.S.C. § 1310; 38 C.F.R. §§ 3.300, 3.307, 3.309, 3.310, 3.312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had verified recognized guerilla service from April 1945 to February 1946, Regular Philippine Army service from February 1946 to May 1946, and Philippine Scouts service from May 1946 to March 1949. He died in May 1995, and the Appellant is seeking VA compensation and pension benefits as the Veteran's surviving spouse. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). Specifically, the RO denied entitlement to service connection for the Veteran's cause of death, death pension, and accrued benefits. The Appellant appealed all issues to the Board in her VA Form 9, and the Board liberally construes the Appellant's correspondence to include all issues adjudicated by the AOJ. Therefore, all three issues are properly before the Board. The Appellant requested a Board hearing when she submitted her VA Form 9. However, in April 2017, the Appellant withdrew the request for a hearing. Therefore, the claims will be adjudicated on the documents contained in the record. 1. Entitlement to survivor pension benefits. The Appellant is seeking VA non-service-connected death pension benefits. She essentially contends that the Veteran's service in the Philippine Scouts with the United States Army constitutes service with the Armed Forces of the United States and meets the criteria to entitle her to pension benefits. Unfortunately, the Veteran's military service with the Philippine Scouts is not qualifying service for basic eligibility for non-service-connected death pension benefits. A Philippine veteran is limited by law to the award of a defined set of benefits. Under 38 U.S.C. § 107, a Philippine veteran who served in the Philippine Commonwealth Army, including certain organized guerilla forces in the service of the U.S. Armed Forces, as well as those veterans who served in the Philippine Scouts, may receive only the following types of benefits: (1) benefits under contracts of National Service Life Insurance entered into before February 18, 1946; (2) payments to missing persons under chapter 10 of title 37 of the U.S. Code; (3) death and disability compensation under chapter 11 of title 38 of the U.S. Code; and (4) dependency and indemnity compensation (DIC) under chapter 13 of title 38 of the U.S. Code. See 38 U.S.C. § 107 (a)(1)-(3), (b); 38 C.F.R. § 3.40. Specifically, service prior to July 1, 1946, in the organized military forces of the Government of the Commonwealth of the Philippines in the service of the Armed Forces of the United States (including recognized guerilla service) is qualifying service for compensation, DIC, and burial allowance. 38 U.S.C. § 107 (a)(3). However, it is not qualifying service for VA pension benefits. Id. Recognized guerrilla service, enlistments, and reenlistments of Philippine Scouts in the Regular Army from October 6, 1945, to June 30, 1947, is qualifying service for compensation and DIC. See 38 C.F.R. §§ 3.40 (b), (d). However, such service is not qualifying for pension benefits. Id. In sum, pension benefits are specifically excluded as described above. As a matter of law, service in the Philippine Commonwealth Army, including recognized guerilla service, is not qualifying service for the purpose of entitlement to VA pension benefits. 38 C.F.R. § 3.40 (c)(1). In this case, the Veteran had verified guerilla service from April 1945 to February 1946 and Philippine Scouts service from 1946 to March 1949. The Appellant has not claimed that the Veteran had other service, and the Veteran did not claim otherwise during his lifetime. While such service made the Veteran eligible for compensation benefits and the appellant for possible cause of death benefits, the evidence does not show qualifying service for the purpose of entitlement to death pension benefits. Where service department certification is required, the service department's decision on such matters is conclusive and binding on VA. 38 C.F.R. § 3.203 (c); Duro v. Derwinski, 2 Vet. App. 530 (1992); Soria v. Brown, 118 F.3d 747 (Fed. Cir. 1997). The Board acknowledges that the Veteran served and contributed to the United States Armed Forces through his active service with both a recognized guerrilla unit and the regular Philippine army. However, governing law restricts the types of entitlements flowing from such service. The Appellant is not eligible to receive non-service connected death pension as such benefits are set up in 38 U.S.C. Chapter 15, which is clearly not listed as an exception in 38 U.S.C. § 107(a), as set forth above. The Board is sympathetic to the Appellant's financial and health difficulties; however, the basic entitlement requirements for improved pension for surviving spouses are set by law, and the Board is bound by that law. The type of service that the Appellant's deceased spouse performed is not qualifying service this particular benefit. Accordingly, the claim must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426 (1994). 2. Entitlement to accrued benefits The Appellant seeks entitlement to accrued benefits. Specific argument in support of this appeal has not been provided, other than statements that the Veteran should have been service connected for certain disabilities during his lifetime. Accrued benefits are defined as "periodic monetary benefits to which a payee was entitled at his death under existing ratings or decisions, or those based on evidence in the file at the date of death and due and unpaid for a period not to exceed two years." See 38 U.S.C. § 5121; 38 C.F.R. § 3.1000 (a). Accrued benefits may be paid upon the death of a veteran to his or her spouse. 38 C.F.R. § 3.1000 (a)(1)(i). A claim for death pension, compensation, or Dependency and Indemnity Compensation (DIC) is deemed to include a claim for any accrued benefits. 38 C.F.R. §§ 3.152 (b), 3.1000(c). Unlike other death benefits, however, the application for accrued benefits must be filed within one year after the date of death. 38 C.F.R. § 3.1000 (c). In sum, for a claimant to prevail on an accrued benefits claim, the record must show that: (i) the individual has standing to file a claim for accrued benefits; (ii) the VA payee had a claim pending at the time of death; (iii) the VA payee would have prevailed on the claim if he or she had not died; and (iv) the claim for accrued benefits was filed within one year of the VA payee's death. 38 U.S.C. §§ 5101(a), 5121; 38 C.F.R. § 3.1000; Jones v. West, 136 F.3d 1299 (Fed. Cir. 1998). In the instant matter, the Veteran died in May 1995. The present claim on appeal was received by VA in September 2013, which was more than a year after the Veteran's death. Thus, the Appellant has no legal entitlement to accrued benefits because the current claim for accrued benefits on appeal was not timely filed as required by the statute governing claims for accrued benefits. The Board acknowledges the Appellant's contention that she did not know a claim needed to be filed within a year, and that she had health difficulties that prevented her from filing, and that benefits should be awarded out of fairness. However, the Board is bound by the applicable law and is unable to grant benefits on an equitable basis. Accordingly, the Appellant's claim for accrued benefits must be denied as a matter of law. Moreover, even if the Appellant had filed for death benefits within a year of the Veteran's death, the record shows that the Veteran did not have any pending claims at the time of his death. In Jones v. West, 136 F.3d 1296, 1299 (Fed. Cir. 1998), the Federal Circuit held that, for an eligible person to be entitled to accrued benefits, "the veteran must have had a claim pending at the time of his death for such benefits or else be entitled to them under an existing rating or decision." See Zevalkink v. Brown, 102 F.3d 1236 (Fed Cir. 1996) (holding that a consequence of the derivative nature of an accrued benefits claim is that, without the veteran having a claim pending at time of death, the eligible survivor (in this case a surviving spouse) has no claim upon which to derive his or her own application). The term "pending claim" means an application, formal or informal, which has not been finally adjudicated. 38 C.F.R. § 3.160 (c). Review of the claims file shows that the Veteran did not file an application, formal or informal, at any time after October 1986. The October 1986 claim was adjudicated in March 1987 and not appealed; therefore, it became final. Because the Veteran did not have any pending claims at the time of his death, entitlement to accrued benefits may not be granted as a matter of law. See 38 C.F.R. § 3.1000; Jones, 136 F.3d at 1299. Thus, there were no pending claims for which the Appellant be recognized as a claimant for accrued benefits purposes. See 38 U.S.C. § 5121A. Consequently, entitlement to accrued benefits is denied. In addressing the Appellant's contentions that the Veteran should have been service connected for various disabilities, including hearing loss and an acquired psychiatric disorder, the Board notes that it is unable to grant service connection for any disabilities after the Veteran's death if he did not have a pending claim at the time of his death. Since the Veteran himself did not have claims pending for hearing loss or any other disability at the time of death, the Board is unable to award any benefits for compensation because they were not due. While the Board is sympathetic to the Appellant's situation, the Board observes that the payment of monetary benefits must be authorized by statute. The principles of equity cannot be applied to award benefits that are not authorized by statute. See McTighe v. Brown, 7 Vet. App. 29, 30 (1994). Therefore, the Board is without authority to grant the Appellant's claims on an equitable basis and instead is constrained to follow the specific provisions of law governing accrued benefits claims. See also 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). In conclusion, accrued benefits must be denied. As the law, and not the evidence, is dispositive in this case, the claim must be denied as a matter of law and the benefit-of-the-doubt doctrine does not apply. Sabonis v. Brown, 6 Vet. App. 426 (1994). 3. Whether there is new and material evidence to reopen the claim for service connection for the Veteran's cause of death Initially, the Board notes that service connection for the Veteran's cause of death was denied in a June 2002 rating decision. The Appellant did not perfect an appeal of this decision. As such, the Board will consider the propriety of reopening the claim. Rating decisions are generally final as of the date of issuance and mailing. 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. Generally, a claim that has been denied in an unappealed rating or Board decision may not thereafter be reopened and allowed. 38 C.F.R. § § 20.1100, 20.1103. The exception to this regulation is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New and material evidence is not required if, at any time after VA issues a decision on a claim, it receives relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim. 38 C.F.R. § 3.156(c)(1). In that case, VA will reconsider, not reopen, the claim. In considering whether to reopen a claim, new evidence is defined as existing evidence not previously submitted to agency decisionmakers. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the United States Court of Appeals for the Federal Circuit (Federal Circuit) noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). VA must review all the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the action of the AOJ, given the previous unappealed denial of the claim on appeal, the Board has a legal duty under 38 U.S.C. § 5108 and § 7104 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claims and adjudicate the claims on a de novo basis. See Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The Appellant previously filed a claim for service connection for the Veteran's cause of death in February 2002. In a June 2002 rating decision, the RO denied entitlement to service connection for the Veteran's cause of death. The June 2002 rating decision indicates that the Veteran's records did not show that his cause of death, cardiorespiratory arrest due to chronic obstructive pulmonary disease (COPD), was incurred or had its onset in service, or that there was a nexus to service. The Appellant submitted a Notice of Disagreement (NOD) in May 2003 and a Statement of the Case (SOC) was issued on August 20, 2003. The AOJ received a VA Form 9 signed by the Appellant's nephew on October 28, 2003, and the AOJ notified the Appellant that it was not timely. The Appellant submitted an NOD regarding the timeliness issue, and the AOJ issued an SOC in January 2004. However, no VA Form 9 was received regarding the timeliness appeal. Therefore, the Appellant did not perfect an appeal of the denial for service connection of the Veteran's cause of death. Accordingly, the June 2002 rating decision denying the claim became final. At the time of the June 2002 denial of service connection for the Veteran's cause of death, the relevant evidence of record included the Veteran's Certificate of Death, military personnel records, a July 2001 statement from Dr. I.C.L.G.-D.C., and various statements from the Veteran's relatives and the Appellant indicating their belief that the Veteran's cause of death, cardio-respiratory failure secondary to chronic obstructive pulmonary disease (COPD), was related to his smoking in service. Since the June 2002 decision, the Board acknowledges that service department records were added to the claims file. However, the Board finds that the records are not relevant to the reason for the June 2002 denial. See 38 C.F.R. § 3.156(c)(1). In May 2003, a certification regarding the Veteran's service was added. In September 2013 and May 2015, enlistment records were associated with the claims file. In February 2017, reports of dental surveys were added. Given that the reason the claim for service connection for the Veteran's cause of death was previously denied dealt with medical evidence and a nexus to service, and the additional service records do not address this deficiency, the Board finds they are not relevant. Therefore, reopening and not reconsideration is proper. After the prior final denial, additional lay statements have also been added to the claims file. The statements include a letter from Dr. I.C.L.G.-D.C. indicating that she treated the Veteran, but his records were not available, and statements indicating that the Veteran should have been service connected for hearing loss and a speech disorder, which contributed to his smoking because he smoked more when he had difficulty communicating. These records are new, as they were not of record at the time of the June 2002 AOJ decision. Furthermore, the Board notes that the evidence is material because it bears on the reason for the prior denial, in that the evidence purports to link the Veteran's COPD to service. The Board notes that no new competent medical evidence regarding the etiology of the Veteran's COPD was submitted; however, the regulation for reopening a previously denied claim creates a low threshold. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010) . As such, the evidence also raises a reasonable possibility of substantiating the claim. See id. The Board also presumes the credibility of all newly submitted evidence for the purpose of determining if such evidence is new and material evidence sufficient to reopen the claim. Justus, 3 Vet. App. at 513. Accordingly, the claim for entitlement to service connection for the Veteran's cause of death is reopened. See 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). To this extent only, the appeal is granted. 4. Entitlement to service connection for the Veteran's cause of death The Appellant seeks service connection for the cause of the Veteran's death, which is listed on the Certificate of Death as cardio-respiratory arrest with contributing cause of COPD. The Appellant's contentions are that the Veteran's COPD was attributable to smoking, which he did during service, and that the Veteran had hearing loss attributable to noise exposure in service, which caused difficulty with communication and resulted in increased smoking. In sum, the Appellant argues that the Veteran's COPD should have been service connected because of in-service smoking. Unfortunately, for the reasons explained in detail below, the claim cannot be granted. Dependency and Indemnity Compensation (DIC) benefits are payable to the surviving spouse of a veteran if the veteran died from a service-connected disability. 38 U.S.C. § 1310; 38 C.F.R. § 3.5. The death of a veteran will be considered as having been due to a service-connected disability when such disability was either the principal or contributory cause of death. 38 C.F.R. § 3.312 (a). The service-connected disability will be considered as the principal (primary) cause of death when the disability, singly or jointly with some other condition, was the immediate or underlying cause of death or was etiologically related thereto. 38 C.F.R. § 3.312(b). A contributory cause of death is inherently one that is not related to the principal cause. To be a contributory cause of death, the evidence must show that the service-connected disability contributed substantially or materially to the cause of death, or that there was a causal relationship between the service-connected disability and the Veteran's death. 38 C.F.R. § 3.312 (c). To be a contributory cause of death, the service-connected disability must be shown to have combined with the principal cause of death, that it aided or lent assistance to the cause of death. It is not sufficient to show that it casually shared in producing death. A causal relationship must be shown. 38 C.F.R. § 3.312. The Board notes that, at the time of his death, the Veteran was not service connected for any disabilities, including COPD and hearing loss. Thus, the Board will address the laws that otherwise govern establishing service connection for a disability. Generally, to establish service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In adjudicating a claim, the Board is charged with the duty to assess the credibility and weight given to evidence. See Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Turning to the evidence, 10th General Hospital admission reports of record. Reports dated in September 1948 and October 1948 show that the Veteran was admitted with tonsillitis. In July 2001, Dr. I.C.L. G.-D.C. wrote a letter on the Appellant's behalf. Dr. G.-D. C. indicated that she signed the Veteran's death certificate in May 1995. There was no attending physician when he died. The Veteran's cause of death was based on the fact that he was a known smoker. Dr. I.C.L. G.-D.C. reported that the Veteran was treated for tuberculosis for six months in 1988, but did not return for follow-up treatment. The claims file contains numerous statements from the Appellant and the Veteran's family members. In sum, they contend that the Veteran lost his hearing because of loud explosives in service and that he began smoking during service. The Appellant and her family argue that communicating with the Veteran was difficult, and it caused him to smoke more . They also expressed their beliefs that the Veteran's smoking caused numerous health ailments, which ultimately rendered him unemployable and contributed to his death. The Board finds that service connection for the Veteran's cause of death or COPD is not warranted. The evidence, namely Dr. G.-D. C.'s July 2001 letter, shows that the Veteran's COPD was attributable to his smoking. This fact is undisputed. The Board notes that the law prohibits the award of service-connected compensation for disabilities and diseases caused by or attributable to smoking. 38 C.F.R. § 3.300 ("For claims received by VA after June 9, 1998, a disability or death will not be considered service-connected on the basis that it resulted from injury or disease attributable to the veteran's use of tobacco products during service."). The Appellant has not advanced any other argument for service connection of the Veteran's cause of death and COPD other than his use of cigarettes during service. The Board further notes that the disease and disabilities listed on the Veteran's Certificate of Death are not the same as the reasons for hospitalization in 1948. In other words, tonsillitis is not on the Veteran's death certificate. There is no record of the Veteran having COPD during service. Therefore, the medical evidence does not show that the Veteran's cause of death was incurred in service. The Board has also considered whether the Veteran had a hearing loss disability that contributed to his COPD. However, the evidence is not competent to establish the existence of a hearing loss disability. While the Appellant believes that the Veteran had a hearing loss disability that was related to service, the Board concludes that she is not competent to make this determination. The issue is medically complex, as it requires the interpretation of symptoms and application of medical principles by a trained medical professional. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). There is no evidence that the Appellant has any medical training. See 38 C.F.R. §§ 4.125, 4.130. Moreover, service connection for impaired hearing shall only be established when hearing status, as determined by audiometric testing, meets specified puretone and speech recognition criteria. Audiometric testing measures threshold hearing levels (in decibels) over a range of frequencies (in Hertz). Hensley v. Brown, 5 Vet. App. 155, 158 (1993). There are no audiometric testing results in the claims file, and, unfortunately, there is no way to objectively test the Veteran to determine if he had a qualifying hearing loss disability. Nevertheless, even if the Veteran had a hearing loss disability that was objectively measured for VA purposes, his Certificate of Death does not show that hearing loss was a principal or contributory cause of death. Therefore, based on the evidence of record, the Board is unable to grant service connection for the Veteran's cause of death based on the Appellant's contention that a hearing loss disability caused by in-service noise exposure contributed to his smoking and COPD. Finally, the Board acknowledges that there is no VA opinion of record regarding the etiology of the Veteran's cause of death and COPD. Under 38 U.S.C. § 5103A(a), VA must provide a medical opinion where (1) the claimant requests assistance in obtaining a medical opinion, (2) the provision of a medical opinion is necessary to substantiate the claim for benefits, and (3) there exists a reasonable possibility that such assistance would in fact aid in substantiating the claim. See Wood v. Peake, 520 F.3d 1345, 1348 (Fed. Cir. 2008); DeLaRosa v. Peake, 515 F.3d 1319, 1322 (Fed. Cir. 2008). "The statute only excuses...VA from making reasonable efforts to provide such assistance, if requested, when 'no reasonable possibility exists that such assistance would aid in substantiating the claim.'" Wood, 520 F.3d at 1348 (quoting 38 U.S.C. § 5103A(a)(2)). The Board finds that no medical opinion is required in this case because no reasonable possibility exists that it would aid in substantiating the Appellant's claim. Since the evidence of record and the Appellant's contentions are based on the Veteran's use of tobacco products, the law prohibits service connection. As the law is determinative, an opinion would not aid in substantiating it. (Continued on the next page) The Board is sympathetic to the Appellant's claim. However, based on the evidence of record, the Board finds that service connection for the Veteran's cause of death is not warranted. The Board finds the preponderance of the evidence, which includes the lay statements, the Certificate of Death, the service records, and Dr. G.-D. C.'s letter, weighs against a finding that the Veteran's COPD was incurred in service. Additionally, the Board may not grant service connection for a disability or death attributable to smoking. In reaching the above 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 in the instant appeal. Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001). Megan R. Thomas Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Smith, Associate 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.