Citation Nr: A21018836 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 200515-84182 DATE: November 24, 2021 ORDER 1. An effective date prior to March 22, 2020 for the award of service connection for the neck disability is denied. 2. Entitlement to revision of the November 2012 rating decision based on clear and unmistakable error (CUE) is granted, and entitlement to a 20 percent rating under Diagnostic Code (Code) 5201-5019 for painful motion of the left shoulder is granted, effective January 5, 2012. 3. Entitlement to revision of the November 2012 rating decision based on CUE is granted, and entitlement to special monthly compensation (SMC) based on housebound status is granted, effective January 5, 2012. 4. Entitlement to revision of the January 2001 rating decision which awarded service connection for posttraumatic stress disorder (PTSD), effective June 3, 1999 based on CUE is denied. FINDINGS OF FACT 1. An unappealed August 2015 rating decision denied reopening a claim of service connection for a neck disability. 2. After the August 2015 rating decision, the next formal claim from the Veteran seeking service connection for a neck disability was received by VA March 22, 2020. 3. An effective date of March 22, 2020 has been assigned for the Veteran's award of service connection for a neck disability. 4. The statutory and regulatory provisions extant at the time of the November 2012 rating decision that awarded a 10 percent rating for painful motion of the left shoulder were incorrectly applied to the evidence then of record, resulting in undebatable error, the sort which, had it not been made, would have manifestly changed the outcome of the decision to the extent that a 20 percent rating should have been assigned. 5. The impact of the error in the assignment of a 10 percent rating for left shoulder disability in November 2012 rating decision was such that correction of the error with consideration of the evidence and statutory and regulatory provisions then existing clearly warrants an award of SMC at the housebound rate, from January 5, 2012. 6. The January 2001 rating decision did not contain an outcome-determinative error in applying the law existing at the time to the facts that were then before the adjudicator. CONCLUSIONS OF LAW 1. An effective date prior to March 22, 2020, for the award of service connection for a neck disability, is not warranted. 38 C.F.R. §§ 5101, 5109A, 5110; 38 C.F.R. §§ 3.105, 3.151, 3.155, 3.400. 2. There was CUE in the November 2012 rating decision in that it did not assign a 20 percent rating for the Veteran's left shoulder disability effective January 5, 2012, and revision of that decision to correct the error is required. 38 U.S.C. § 5109A; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code (Code) 5201 (2012). 3. The revision of the CUE in the November 2012 rating decision regarding the rating assigned for the Veteran's left shoulder requires an award of SMC at the housebound rate, from January 5, 2012. 38 U.S.C. §§ 1114, 5109A; 38 C.F.R. § 3.350(i). 4. Revision of the January 2001 rating decision that granted service connection for PTSD, effective June 3, 1999 to award an earlier effective date based on CUE is not warranted. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 1, 1982 to October 30, 1982 and from May 4, 1985 to May 18, 1985. These matters are before the Board of Veterans' Appeals (Board) on appeal of April and May 2020 Department of Veterans Affairs (VA) rating decisions. The Veteran timely appealed these rating decisions to the Board in a VA form 10182 received May 15, 2020 and requested the Board direct review lane option. Therefore, the Board's review is limited to evidence on record at the time of the April 3, 2020 rating decision, for the matters of entitlement to earlier effective dates based on CUE for the evaluation of degenerative arthritis of the left shoulder, service connection for PTSD, and the award of special monthly compensation housebound criteria. Additionally, the Board's review is limited to the evidence of record at the time of the May 5, 2020 rating decision in the matter of entitlement to an earlier effective date for the award of service connection for a cervical spine disability. Effective Date 1. An effective date prior to March 22, 2020, for the award of service connection for the neck disability is denied. Except as otherwise provided, the effective date of an award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later [emphasis added]. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The effective date of an award of compensation based on a reopened claim (after a final disallowance) is the date of the claim to reopen or the date entitlement arose, whichever is later [emphasis added]. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2), (r). If there is a prior final VA denial of the benefit sought, the effective date cannot be earlier than a subsequent claim to reopen. See Leonard v. Principi, 17 Vet. App. 447 (2004); Sears v. Principi, 16 Vet. App. 244 (2002), aff'd 349 F.3d 1326 (Fed. Cir. 2003). Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Prior to March 24, 2015, the term "claim" or "application" was defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). After March 24, 2015, all claims are required to be submitted on the prescribed form and must identify the benefit sought. 38 C.F.R. § 3.155. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, 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 fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran asserts, via his representative, that the grant of service connection should have essentially been made in 1996, when he first filed a claim of service connection for a neck disability. The attorney alleges that the 1997 rating decision was not final by the submission of new and material evidence within one year of the rating decision. In an August 1996 statement, the Veteran submitted a claim of entitlement to service connection for, in part, chronic pain of the back and neck. A March 1997 rating decision denied service connection for a cervical spine injury, on the basis that any cervical spine disability present was not shown to be related to military service. The Veteran did not file a notice of disagreement with that decision. For evidence to be new and material in the matter, it would have to tend to show that he has a neck disability related to his service. VA treatment records (received in January 1998) note an assessment of radiculopathy. The Veteran reported complaints of right shoulder and right-sided neck pain following a motor vehicle accident (MVA) and diagnostic testing found cervical degenerative disc disease. The next communication received from the Veteran to VA was in February 1999, seeking service connection for a "skeletal condition" which he also referred to as problems in his "shoulder + back + neck", and was addressed by a July 1999 rating decision. The Veteran did not file a notice of disagreement with that decision. On October 12, 1999, VA received a second statement from the Veteran's private provider (Dr. S.B.). The provider noted the significant disc degeneration at C3 and C4 and the angular kyphosis were unusual in the absence of significant trauma. The provider opined that these factors strongly suggest that the Veteran's current condition resulted from his 1985 car accident. May 2002 and September 2007 rating decisions continued to deny entitlement to service connection for a neck disability based on no new and material evidence being received. The Veteran did not file a notice of disagreement with those decisions (or submit new and material evidence in the following year). Therefore, they are final. 38 U.S.C. § 7105. In a January 2015 formal claim, the Veteran requested an "increase of skeletal condition." In a March 2015 report of contact, VA contacted the Veteran to confirm the contention of "skeletal condition" and the Veteran stated he was claiming for his (not yet service-connected) back and neck disabilities and his then service-connected ribs and clavicles. He told VA that he was surprised he was receiving a call about his claim and was informed that VA required clarification of his original claim in order to order examinations for his service-connected conditions (his ribs and clavicles). The August 2015 rating decision continued to deny service connection for a neck disability based on no new and material evidence being received. The Veteran did not file a notice of disagreement with that decision (or submit new and material evidence in the following year). Therefore, it is final. 38 U.S.C. § 7105 On April 19, 2018, the Veteran filed/VA received a formal claim seeking service connection for a "back injury". In May 2018, VA received private treatment records documenting physical treatment for cervical spine and lumbosacral spine disorders. In June 2018, the Agency of Original Jurisdiction (AOJ) requested a cervical spine VA examination to assess the nature and etiology of his cervical spine disability. In the July 2018 VA examination, a cervical spine disability was diagnosed, and the examiner provided a positive etiology [to service] opinion. In August 2018, the AOJ requested a thoracolumbar spine VA examination to assess the nature and etiology of his lumbosacral spine disability. While the October 2018 rating decision awarded service connection for a low back disability and neurological abnormalities related to the low back disability, it did not address service connection for a cervical spine disability. A November 2018 NOD specifically noted he was appealing the effective date of award of service connection for the lumbar spine disability. The next communication from the Veteran to VA on the matter of service connection for a neck disability was on March 22, 2020 in a supplemental claim requesting service connection for a "neck condition". The claim of service connection for a neck disability was ultimately reopened and granted in a May 2020 rating decision based on the July 2018 VA cervical spine examination and an effective date of March 22, 2020 was established. In May 2020, the Veteran's attorney alleges alternative theories of entitlement: (1) the March 1997 rating decision was rendered nonfinal under 38 C.F.R. § 3.156 (b) due to the Veteran's submission of additional evidence within the one-year appeal period, and (2) reconsideration of the March 1997 rating decision is warranted under 38 C.F.R. § 3.156 (c) due to the association of the new service department records in August 2012. In summarizing the facts, the attorney related "in April 2018, the Veteran reopened his claim for a back condition, and in June 2018, the RO apparently mistakenly ordered a VA examination for a neck condition." At the outset, the Board observes the Veteran's attorney essentially raises a CUE motion related to the effective date of service connection to a neck disability and the Board does not have jurisdiction on that matter. While he alleges that the 1997 rating decision was rendered nonfinal under 38 C.F.R. § 3.156 (b) or (c), he is essentially collaterally attacking the determinations in the May 2002, September 2007, and August 2015 rating decisions, which all found there was no new and material evidence to reopen the claim of service connection for a neck disability. To the extent that the Veteran has raised a CUE motion related to that effective date (to remove a legal bar), CUE motions are separate and distinct from effective date claims, even though they provide a means to achieve the same end. See Hillyard v. Shinseki, 24 Vet. App. 343, 355 (2011) (An assertion of CUE is a motion or a request, not a theory of entitlement that can be considered part of another claim). Additionally, jurisdiction over an earlier effective date appeal does not confer jurisdiction over an allegation of CUE in a prior final rating decision, and those issues are not inextricably related. Phillips v. Brown, 10 Vet. App. 25, 33 (1997). A claim of CUE must be pled with specificity. See Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002). The Veteran's attorney raised the CUE allegation after the last adjudication by the Agency of Original Jurisdiction (AOJ) and the Board does not have jurisdiction on the matter of CUE in prior denials of service connection for the neck disability. See Godfrey v. Brown, 7 Vet. App. 398, 410 (1995) (the Board lacks jurisdiction over a claim that is not first presented to and adjudicated by the agency of original jurisdiction). [The Veteran, however, may file a supplemental claim or submit or identify a specifically pled CUE motion. 38 C.F.R. § 3.2501. If specifically pled, VA will issue decision on that CUE motion. Specific instructions for filing a supplemental claim are attached to this decision.] As the August 2015 rating decision was a final denial of reopening his claim of service connection for a neck disability, governing law and regulations (38 U.S.C. § 5110; 38 C.F.R. § 3.400 (q)(2)), and interpretive caselaw (cited above) an award of compensation for a neck disability may not be made effective prior to the filing of the claim to reopen (seeking service connection for a neck disability) following that decision. To establish an effective date for the award earlier than the date of the August 2015 rating decision, the Veteran would have to remove the legal bars to such created by the finality of the August 2015 rating decision (as well as the May 2002 and September 2007 rating decision) by presenting, and prevailing on, a CUE motion in the May 2002, September 2007, and August 2015 rating decisions (which, as noted above, has not occurred). Therefore, the critical question before the Board is whether, at any time following the August 2015 decision and prior to March 22, 2020, VA received a formal claim seeking service connection for a neck disability (as the effective date of an award of service connection cannot be earlier than the date of receipt of the claim to reopen). A close review of the record finds that the first communication from the Veteran expressly seeking service connection for a neck disability after the final August 2015 rating decision was received March 22, 2020. He had filed claims pertaining expressly to his neck condition (separate from a lumbar spine condition) in the past, and was not unfamiliar with what is needed to pursue a claim of service connection for a neck disability. While in May 2018 he submitted private treatment records showing he was receiving treatment for lumbar and cervical conditions, his April 2018 formal claim refers only to a "back injury." There was no indication with his April and May 2018 submissions that he was also seeking service connection to a neck disability. While the AOJ arranged for a July 2018 VA neck examination (which subsequently led to a grant of benefits), the subsequent October 2018 rating decision only addressed the matters of service connection for a low back disability and related neurologic abnormalities due to the low back. Additionally, the Veteran's attorney has not identified that that a formal claim of service connection for a neck disability was filed between August 2015 and March 2020, but significantly referred to the July 2018 VA neck examination as "mistakenly ordered." There is nothing in the record received from the Veteran between August 2015, and prior to March 22, 2020, that may be interpreted as a valid claim of service connection for a neck disability. Consequently, an effective date for the award for the award of service connection for a neck disability prior to March 22, 2020, is not warranted. There is no legal basis for an effective date for the award of service connection for a neck disability earlier than the March 22, 2020 date assigned. As the RO has already assigned the earliest possible effective date available under governing law given the current undisputed acts in this case, the law is dispositive in this matter. The appeal in this matter must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Clear and Unmistakable Error Unappealed rating decisions are final and binding based on evidence on file at the time and are not subject to revision on the same factual basis. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.104(a). Previous determinations that are final and binding, including decisions of service connection, will be accepted as correct in the absence of collateral attack by showing the decision involved CUE. 38 U.S.C. § 5109A; 38 C.F.R. § 3.105(a). CUE is a very specific and rare kind of error and is more than a difference of opinion. 38 C.F.R. § 3.105(b). It is the kind of error of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. See, e.g., Damrel v. Brown, 6 Vet. App. 242 (1994); Russell v. Principi, 3 Vet. App. 310 (1992). Allegations that VA failed in its duty to assist are, as a matter of law, insufficient to form a basis for a claim of clear and unmistakable error. Caffrey v. Brown, 6 Vet. App. 377, 383-84. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated"; and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in the outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. A purported failure in the duty to assist cannot give rise to CUE, nor does it result in "grave procedural error" to vitiate the finality of a prior, final decision. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). 2. 3. Entitlement to revision of the November 2012 rating decision to amend the rating assigned for the Veteran's left shoulder disability to 20 percent effective January 5, 2012, and to also award SMC at the housebound rate from that is granted. On January 5, 2012, the Veteran filed a claim for service connection for a left shoulder disability. On October 2012 VA examination, the Veteran reported constant achiness in his left shoulder. A November 2012 rating decision granted service connection for a left shoulder disability, and a 10 percent rating based on painful motion of the shoulder was assigned, effective January 5, 2012. The RO noted 38 C.F.R. § 4.59 allows for consideration of functional loss due to painful motion to be rated to at least the minimum compensable rating for a particular joint and that the minimum compensable evaluation for motion of the arm at the shoulder is 10 percent. A higher evaluation of 20 percent was denied due to not showing limitation of motion at shoulder level. The Veteran was notified of the rating decision and was provided notice of his appellate rights, but did not initiate an appeal; and new and material evidence pertinent to the rating assigned was not received within a year of issuance of the decision. The Veteran now alleges there was committed CUE in the November 2012 rating decision. Specifically, it is alleged that the RO committed CUE by not assigning the minimal compensable (20 percent) rating for limitation of motion of the shoulder (and also that the failure to assign the proper rating resulting in further CUE in that SMC at the housebound status, which would have been warranted based on governing law and regulations with the proper rating for the left shoulder, also was not awarded. The rating schedule at the time of the November 2012 decision provided for a minimum compensable rating for painful motion of a joint (see 38 C.F.R. § 4.59). and pursuant to Code 5201. The minimum compensable rating for limitation of motion of the arm/shoulder (under Code 5201) was 20 percent. Painful motion of the left shoulder was clearly noted on October 2012 VA examination. The November 2012 rating decision awarded compensation for the left shoulder based on such painful motion. Consequently, based on the record and existing law at the time of the November 2012 rating decision, a 20 percent rating for the left shoulder disability was warranted pursuant to 38 C.F.R. § 4.59 and Code 5201, effective January 5, 2012. In short, the RO incorrectly applied the governing legal criteria when it rated the left shoulder disability 10 percent based on painful motion of a joint, despite the fact that the rating schedule established a distinct minimum compensable rating of 20 percent for limitation of motion of the shoulder. Revision of the November 2012 rating decision to correct the CUE results in the assignment of a 20 percent rating for the left shoulder disability from January 5, 2012. The revision of the rating for the left shoulder effective January 5, 2012 also establishes that the Veteran was entitled to SMC at the housebound rate from January 5, 2012. Governing law in November 2012 (38 U.S.C. § 1114(s)) decision provided that the criteria at the housebound criteria were met if a Veteran had a service-connected disability rated as total (100%) and had additional service-connected disability or disabilities independently ratable at 60 percent or more. The Veteran's service-connected disabilities in November 2012 included PTSD (rated 100 percent), a right clavicle disability (40 percent), a left shoulder disability (corrected rating 20 percent), left fractured ribs (0 percent), right pneumothorax (0 percent), and scars of the nose and left cheek (0 percent). With application of the bilateral factor (for the shoulder disabilities, the combined rating for the service-connected disabilities was 60 percent, effective January 5, 2012 (and met the requirements for SMC at the housebound rate. Consequently, entitlement to SMC at ath housebound rate effective January 5, 2012 is also warranted. 4. Entitlement to an earlier effective date for the grant of service connection for PTSD based on CUE is denied. A January 2001 rating decision granted the Veteran service connection for PTSD effective June 3, 1999. In a March 2020 statement, his attorney argues that the effective date of service connection should be based on the Veteran's original claim for service connection in March 1987. Specifically, the attorney argues the RO failed to consider and apply the statutory provisions of 38 C.F.R. § 3.156(b) and (c), noting additional service records were received within a year of a 1987 rating decision denying service connection for PTSD. The attorney alleges the additional service records received in April 1988 clearly and unmistakably led to the grant of service connection for PTSD in 2001, warranting a finding of CUE in that decision for failure to apply the § 3.156 provisions. The evidence shows that the Veteran initially filed a claim seeking, in part, service connection for PTSD in March 1987. On June 1987 VA examination, no psychiatric disability was found. A November 1987 rating decision denied service connection for PTSD on the basis that a current diagnosis of such disability was not shown. The RO acknowledged (and it was not in dispute) that the Veteran was injured in a motor vehicle accident (MVA) in May 1985 (during service). In April 1988, VA received the additional service treatment records (STRs), noted by the Veteran's attorney, that show the Veteran was involved in a MVA in 1985. They do not show a diagnosis of a psychiatric disorder at the time. On June 5, 1999, the Veteran submitted a claim seeking service connection for PTSD. On October 1999 VA examination, PTSD secondary to the motor vehicle accident in service was diagnosed. Based on the October 1999 VA examination, the January 2001 rating decision awarded service connection for PTSD, effective of June 5, 1999 (the date of receipt of the claim to reopen). The Veteran did not appeal that decision, and it became final. 38 U.S.C. § 7105. The governing law in January 2001 provided that the effective date of an award of service connection based on an original claim is the date the claim was received (unless the claim is filed with a year following separation from service, in which case it may be retroactive to the date of separation) or the date entitlement arose, whichever is later. When there is a final denial of service connection, the effective date may not be earlier than the date of receipt of the claim to reopen. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.156 (b)(c), receipt of new and material evidence within a year following a rating decision denial of service connection or receipt or relevant service records at any time following the rating decision in essence renders the decision non-final and warrants readjudication of the original claim on a de novo basis. The service treatment records received in April 1988 would be new and material evidence and would have required readjudication of the November 1987 rating decision under 3.156(b) if found to have been material, and would have also warranted readjudication of the claim under 3.156(c) if found to be relevant. The November 1987 rating decision denied service connection for PTSD acknowledging that the Veteran was involved in a MVA in service, but finding that the Veteran was not shown to have a current psychiatric disability. The AOJ had arranged for a psychiatric examination which found the Veteran did not have a diagnosis of a current psychiatric disability. Consequently, it was not in dispute at the time of the 1987 rating decision that the Veteran was in a MVA (experienced a traumatic event in service) and the unestablished facts necessary to substantiate the claim remaining to be established were first whether the Veteran had a diagnosis of PTSD (or another psychiatric disability) and then, if so whether the diagnosed psychiatric disability was etiologically related to the traumatic event in service. As the service treatment records received in April 1988 (while showing details of the MVA do not show or suggest that he had a psychiatric disability either in service or during the pendency of the claim). Therefore, they do not pertain to the threshold unestablished fact necessary to substantiate the claim of service connection for PTSD/a psychiatric disability, do not raise a reasonable possibility of substantiating the claim, and are not material. The analysis turns to whether (under 38 C.F.R. § 3.156(c)) the service treatment records were new and relevant evidence, such as to warrant de novo consideration of the claim. Determining relevancy requires consideration of whether the service treatment records received in April 1988 added any new information (pertinent to the claim of service connection for PTSD/a psychiatric disability) to the record. As was noted above, the record in November 1987 had established (it was not in dispute) that the Veteran was in a MVA in which he sustained physical injuries. For evidence to be relevant here in the matter of service connection for PTSD, it would have to tend to show that he had a psychiatric disability. The service treatment records contain no information that show or suggest the Veteran had a psychiatric disability. Thus, they are not relevant to the claim of service connection for PTSD and did not require reconsideration of the November 1987 rating decision. While the Veteran's attorney has not asserted that the November 2001 rating decision otherwise contained clear and unmistakable error. The January 2001 rating decision in awarding service connection for PTSD assigned June 3, 1999 (the date the claim to reopen was received), as the effective date. Considering that the prior rating decision that initially denied the claim is not shown to have been rendered not-final by receipt of new and material evidence or previously not considered relevant evidence the effective date cannot be earlier than the date of claim (but may be later if entitlement arose later). As entitlement to service connection arises when the Veteran is first shown to have/have had the claimed disability and it is shown to be etiologically related to service or a service- connected disability. Here, the record does not show a diagnosis of PTSD in accordance with DSM-V until an examination conducted after the Veteran's claim to reopen was received. Thus the 2001 rating decision that is alleged to be in error assigned the earliest effective date possible given the facts shown. The decision is supported by with the factual record then existing, and reflects sound adjudicatory judgment consistent with the existing law and regulations. CUE in the January 2001 rating decision is not shown. An earlier effective date for the award of service connection for PTSD based CUE in the January 2001 rating decision that awarded service and assigned the effective date is not warranted. 38 U.S.C. § 7105; 38 C.F.R. § 3.105 (a). GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Naumovich, 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.