Citation Nr: 21071891 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 12-31 339 DATE: December 1, 2021 ORDER Entitlement to service connection for a brain disability, including Binswanger's syndrome and transient ischemic attack, but distinct from service-connected traumatic brain injury (TBI), to include as secondary to service-connected asbestosis, is denied. FINDINGS OF FACT 1. A brain disability, including Binswanger's syndrome and transient ischemic attack disabilities, but distinct from service-connected traumatic brain injury (TBI), was not manifest during active service, or until many years after service, and is not shown to be causally or etiologically related to an in-service event, injury, or disease. 2. A brain disability, including Binswanger's syndrome and transient ischemic attack disability, is not caused or aggravated by a service-connected disability, including asbestosis. CONCLUSION OF LAW The criteria for service connection for a brain disability, including Binswanger's syndrome and transient ischemic attack disability, have not been met or approximated. 38 U.S.C. §§ 1110, 1112, 1113, 1131 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from October 1964 to April 1966. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana. The Board remanded the issue on appeal for additional development in January 2015, October 2016, October 2017, December 2019, and November 2020. The directives having been substantially complied with, the matter again is before the Board. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). This appeal was originally certified to the Board with the issue of service connection for a brain disorder. However, in a July 2019 rating decision, the RO granted entitlement to service connection for migraine headaches, and in a July 2021 rating decision, for a traumatic brain injury (TBI). The purpose of this appeal to the Board is to distinguish any other possible brain disorders separate from those already granted, which will be discussed in further detail below. Grantham v. Brown, 114 F.3d 1156, 1159 (Fed. Cir. 1997). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2021). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Service Connection General Legal Criteria Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for any injury or disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). For secondary service connection, it must be shown that the disability for which the claim is made is proximately due to or aggravated by a service-connected disability. See 38 C.F.R. § 3.310 (2017); Allen v. Brown, 7 Vet. App. 439 (1995) (en banc). VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3. 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. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis The Veteran originally claimed entitlement to service connection for a brain disorder, a cardiac condition, and asbestosis in May 2011, saying that his acknowledged exposure to asbestos during his active service in the Navy had led to asbestosis, and also that he had a brain disorder and a cardiac condition that were related to that asbestosis. The Veteran has been granted service connection for asbestosis in an August 2015 rating decision, and service connection for a cardiac condition, now characterized as cardiomyopathy and supraventricular arrhythmia, in a July 2021 rating decision. In that same July 2021 rating decision, the Veteran was granted service connection for a brain disorder, now characterized as a traumatic brain injury (TBI), with all three disabilities effective from the date of claim of May 3, 2011. In addition, the Veteran is service-connected for migraine headaches since a July 2019 rating decision. Because the originally claimed brain disorder has been granted in part by the RO as a TBI, the remaining determination for the Board is whether any of the other brain-related diagnoses can be separately service-connected with symptoms and diagnosis independent of the TBI or any other service-connected disorder. The RO now characterizes the claim as one for a brain disability, including Binswanger's syndrome and transient ischemic attack. The Board notes a medical treatise defining Binswanger's syndrome as a form of small vessel vascular dementia, often caused by atherosclerosis of the arteries that supply blood to the subcortical areas of the brain. See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 326 (32d ed. 2012). The Veteran's service records are silent for any brain disorder, though there is one report of a head injury, where the Veteran was hit in the head by a falling wrench in October 1965. The separation examination is silent for any brain disorder, head trauma, or other related injury or disease in the skull. The Veteran was granted service connection for asbestosis in an August 2015 rating decision effective from April 11, 2011. As part of that adjudication, a private physician, Dr. M.S. had opined in May 2011 that the Veteran's diagnosed hypertension, which is not service-connected, then or now, and his pulmonary conditions "may be related" to his brain disorder, without mention of exactly what the brain disorder was. This same physician later provided a sworn deposition in July 2011 addressing the Veteran's vascular dementia, as it was now described. Dr. M.S. noted the Veteran had Binswanger's Syndrome, which he described as a stroke-type syndrome, but he also noted that a complete mental status examination had not been informed, because he was not qualified to do so. This physician also noted diagnoses per the Veteran's statements of sleep apnea and hypertension. An MRI was part of the record already, and Dr. M.S. noted the possible presence of white plaques, which he conjectured was possibly related to transient ischemic attack residuals. This physician stated that the presence of asbestosis could worsen any present brain disease in that it could reduce brain oxygenation, but that it would not be a contributing factor. Dr. M.S. also stated that the Veteran's impaired cardiopulmonary function would affect the vascular dementia noted in the Veteran. The Veteran received a VA examination for a respiratory condition in July 2011, and that examiner noted a diagnosis by other medical records of Binswanger's Syndrome, short term memory problems, and residuals of a transient ischemic attack. The examiner provided a negative opinion for direct service connection, saying it was less likely than not, less than 50 percent probability, that the Veteran's diagnosed brain disorders were incurred in or due to service. The examiner's rationale was that there was no indications of a brain or related neurological disorder in active service, and there had been no indications of such until the Veteran's claim in March 2011, 45 years after active service. No opinion was provided for secondary service connection. The Veteran first received a VA examination for the central nervous system and neuromuscular disease in July 2015. This examiner made a diagnosis of chronic ischemic leukoencephalopathy, and no other. The neurological examination was considered normal, and the chronic ischemic leukoencephalopathy, described as a form of vascular dementia, and later as Binswanger's Syndrome, was considered related to the Veteran's cardiac diagnoses and not any brain disorder or other possible neurological disease. The examiner provided a negative opinion for secondary service connection, saying it was less likely than not, less than 50 percent probability, incurred in or caused by an inservice injury, event, or illness. The examiner's rationale was there is no indication of a neurological disorder in service nor an exposure or injury that would lead to the current symptoms of chronic ischemic leukoencephalopathy. VA provided an examination in November 2016, and the examiner noted the Veteran's head injury from 1964. This examiner determined there were no current residual subjective symptoms, or any mental, physical, or neurological conditions, or residuals, which were attributed to that head injury in service. The neurologist's examination indicated a slight level of disorientation, which the examiner posited would be consistent with a mild TBI, but there is no documentation of any residuals since active service. This examiner opined it was less likely than not, less than 50 percent probability, that the Veteran's current symptoms were incurred in or related to service. This examiner also opined that the Veteran's current symptoms were not related to the diagnosed asbestosis, as there is no medical evidence in the current literature that supports a pulmonary-related disorder as a risk factor, much less a cause a disorder such as vascular dementia. VA provided an addendum opinion in June 2017 to address the possibility of a relationship between the vascular dementiathe Binswanger Syndromeand any effect of the service-connected asbestosis. The VA examiner physician opined in the negative, that the medical literature clearly indicates that any neural plaques were considered benign and had nothing to do with the asbestosis. The examiner also noted those benign plaques of the brain viewed in imaging had nothing directly related to the Veteran's cardiac disorders and symptoms, though the vascular dementia already observed could be traced to undetected transient ischemic attacks, a cardiovascular problem and not a brain disorder of a neurological origin or etiology. VA provided an addendum opinion in November 2017 addressing the Veteran's cardiac disabilities. This examiner's opinion focused on the cardiomyopathy, atrial fibrillation, and other cardiac symptoms, but also noted that there was no evidence of decreased oxygenation to the brain that might relate to vascular dementia from either a cardiac disability or a pulmonary disability, to include the Veteran's asbestosis. The Veteran received a VA examination and opinion in January 2019. The examiner noted it was less likely than not that the Veteran's noted head injury from service initiated the current diagnoses of Binswanger's Syndrome and the transient ischemic attack residuals. With regard to the headaches diagnosis, the VA examiner opined that although the headaches are more likely due to the head injury during service, there is no evidence that the head injury during service initiated the current brain disease. The Veteran was noted to have a history of smoking, alcohol use, vascular issues, COPD, and a strong family history of heart disease, which may have all contributed to the white matter changes and cerebral and cerebellar atrophy shown by the medical evidence. A mental status exam in 1966 showed no signs of organic brain disease during service, and therefore does not support that brain disease occurred at that time. Additionally, there is no evidence that asbestos or asbestosis caused the brain injury, and the medical literature does not support this as a cause of vascular dementia. Although Dr. S. in May 2011 opined that diseases which decrease oxygen to the brain can contribute to the development of brain disease, the Veteran's oxygen saturation levels are normal on room air. Therefore, the evidence does not show a correlation between the lung oxygenation and brain disease. The Veteran received another VA examination in February 2020 and was diagnosed with Binswanger's syndrome and residuals of transient ischemic attack. The examiner opined that the diagnosed conditions were less than likely related to an in-service event or experience to include an active service head injury. The examiner reasoned that in-service symptoms were only acute and resolved without chronicity of care. The clinician also opined that the diagnosed conditions were less than likely caused by or the result of service-connected asbestosis. They reasoned that asbestosis is a disease of the lung defined as a diffuse interstitial fibrosis of the lung. It is not recognized as a risk factor for blockage of brain blood vessels associated with TIA or Binswanger syndrome. The clinician also opined that your diagnosed conditions were less than likely permanently worsened by your service-connected asbestosis. They reasoned that asbestosis is a disease of the lung defined as a diffuse interstitial fibrosis of the lung. It is not recognized as a risk factor for blockage of brain blood vessels associated with TIA or Binswanger syndrome. VA provided an addendum opinion in October 2021 to address the question of both direct and secondary service connection for the brain disability service connection issue. This examiner noted the diagnoses of chronic ischemic leukoencephalopathy (Binswanger's Syndrome) which is due to diffuse generalized atherosclerosis and likely microinfarcts, and stated it is not caused by asbestos exposure or asbestosis. Asbestosis is a respiratory condition and exposure to asbestos is not involved in the pathophysiology of the veteran's ischemic brain disease. Therefore, it is less likely than not that the Veteran's encephalopathy is due to or incurred in the Veteran's exposure to asbestos or the Veteran's asbestosis. There is no evidence of the condition in service and it was not diagnosed until decades post-service. It is less likely than not that the veteran's encephalopathy had its nexus in service or was due to events in service, including asbestos exposure/asbestosis, as discussed above. Addressing the possibility of secondary service connection, the examiner stated the condition has not been aggravated beyond its natural course due to any cause and there is no mechanism by which asbestos exposure and or asbestosis could influence the condition. It is a vascular condition of the brain and asbestos plays no role in its development or progression. Entitlement to service connection for a brain disability, including Binswanger's syndrome and transient ischemic attack, to include as secondary to service-connected asbestosis The Board finds all the VA examination reports and opinions in the amalgam to be of great probative value, along with both the VA treatment notes and private treatment regarding the Veteran's claimed brain disability, including Binswanger's syndrome and transient ischemic attack. Indeed, the VA examiners considered the Veteran's contention, the claims file, and clinical medical evidence before providing a negative opinion for both direct and secondary service connection. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (the probative value of a medical opinion is derived from a factually accurate, fully articulated, and soundly reasoned opinion). A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The examiners' negative opinions were supported by a sufficiently clear and well-reasoned medical rationale and was consistent with the verifiable facts regarding the Veteran's contentions. See Bloom v. West, 12 Vet. App. 185, 187 (1999); Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Claiborne v. Nicholson, 19 Vet. App. 181, 186 (2005). The Board acknowledges that the Veteran is competent to testify as to his beliefs that his disabilities are related to service. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). In order for lay evidence to be competent, the individual must have personal knowledge, derived from his/her own senses, of what is being attested; "[c]ompetent testimony is thus limited to that which the witness has actually observed, and is within the realm of his personal knowledge." Layno v. Brown, 6 Vet. App. 465, 471 (1994). Here, the Veteran, via the supplied statements, is competent to testify about his symptoms relating to his claimed brain-related conditions. However, there is nothing in the record to suggest that the Veteran has the appropriate training, experience, or expertise to render a medical opinion regarding etiology of his brain disability, including Binswanger's syndrome and transient ischemic attack. See 38 C.F.R. § 3.159(a)(1) (setting forth that competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). While the Veteran is competent to report what he has experienced, he is not competent to ascertain the etiology of any current condition, as the causative factors for such are not readily subject to lay observation. See Layno v. Brown, 6 Vet. App. 465 (1994); Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (concerning rheumatic fever); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, his assertions to that effect are of no probative value. The Board acknowledges the Veteran's statements that his brain conditions could be related to service. However, the Board notes that the Veteran's service treatment records, to include reports of medical history, are silent for any treatment or complaint of any sleep condition or distress during active or reserve service and up until August 2013, over 23 years after active service ended. A negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board notes there are no other statements by any medical provider, VA or private, that are directly in favor of a nexus to service for the Veteran's claimed brain disability, including Binswanger's syndrome and transient ischemic attack residuals. The Board notes the statements of Dr. M.S. from May and July 2011, but also that his opinions are couched in the language of possibility and a chance of correlation, vice causation or likely etiology. The use of the words "possible," "may," or "can be" make a doctor's opinion speculative in nature. See Bostain v. West, 11 Vet. App. 124, 12728 (1998) (quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993)) (medical opinion expressed in terms of "may" also implies "may or may not" and is too speculative to establish medical nexus). See also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (doctor's statement framed in terms such as "could have been" is not probative); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) ("may or may not" language by physician is too speculative). It is well established that medical opinions that are speculative, general, or inconclusive in nature do not provide a sufficient basis upon which to support a claim. McLendon v. Nicholson, 20 Vet. App. 79, 85 (2006). The Board notes the Veteran is now already service-connected for asbestosis, a cardiac disability that includes symptomatology related to vascular dementia and transient ischemic attacks, a TBI, and a headaches disability. The Board notes the general federal regulations and case law regarding interrelated disabilities, here, the Veteran's service-connected TBI, and also migraine headaches and cardiovascular disabilities. While this legal guidance does not generally prohibit a Veteran from being service-connected for more than one related condition, 38 C.F.R. § 4.14 prohibits evaluating the same manifestation under different diagnoses. See 38 C.F.R. § 4.14 (noting that "the evaluation of the same manifestation under different diagnoses [is] to be avoided"). In Amberman v. Shinseki, the Federal Circuit recognized that separately diagnosed psychiatric conditions could be service-connected, but could not be separately rated unless they resulted in different manifestations. 570 F.3d 1377, 1381 (Fed. Cir. 2009) ("Section 4.14 clearly contemplates that several separately diagnosed disorders may have a single manifestation, and it clearly prohibits the VA from rating that manifestation for each disorder."). The Federal Circuit found that it was possible evidence could be received that reflected that two conditions resulted in different manifestations, thus allowing the two conditions to be separately rated. Id. For example, in Amberman, the Federal Circuit stated that "bipolar affective disorder and PTSD could have different symptoms and it could therefore be improper in some circumstances for the VA to treat these separately diagnosed conditions as producing only the same disability." Id. Here, multiple VA examiners in July 2011, July 2015, November 2016, June 2017, November 2017, January 2019, February 2020, and October 2021 have all opined that the Veteran's symptoms of his vascular dementia are not related to his TBI, headaches, or asbestosis, and are more likely than not related to his cardiovascular disabilities, vice a separate brain disorder other than the TBI and the headaches. The October 2021 VA examiner went into detail, saying the neurocognitive findings in 2011 are connected to the cardiovascular disabilities, already service-connected, but the other symptoms cannot be differentiated. The examiner continued, noting the symptoms of the vascular dementia are accounted for in the separate 30 percent rating for the cardiovascular disabilities, and also the TBI and migraine headaches. This examiner also noted that the service-connected headaches would be accounted for under the TBI but are separately rated by itself. The October 2021 VA examiner continued, making differentiation of symptoms and impairment impossible without resorting to mere speculation among the separately rated service-connected disabilities. The criteria for Diagnostic Code 8045, TBI, notes: there may be an overlap of manifestations of conditions evaluated under the table titled "Evaluation of Cognitive Impairment and Other Residuals of TBI Not Otherwise Classified" with manifestations of a comorbid mental or neurologic or other physical disorder that can be separately evaluated under another diagnostic code. In such cases, more than one evaluation based on the same manifestations is not to be assigned. If the manifestations of two or more conditions cannot be clearly separated, a single evaluation is assigned under whichever set of diagnostic criteria allows the better assessment of overall impaired functioning due to both conditions. However, if the manifestations are clearly separable, a separate evaluation is assigned for each condition. 38 C.F.R. § 4.124a, Diagnostic Code 8045, Note (1) (emphasis added). Here, the Board notes that the Veteran is already rated under his TBI disability for all noted brain disorders, beyond his headaches, which are already rated. The remaining disabilities involving any vascular dementia, to include Binswanger's Syndrome and any residuals of transient ischemic attacks, are within the existing rating for the Veteran's cardiovascular disabilities. Federal regulation in 38 C.F.R. § 4.14 prohibits evaluating the same manifestation under different diagnoses. The United States Court of Appeals for Veterans Claims held that separate ratings could be appropriate if and only if there were distinct symptoms served by distinct and different diagnoses. Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (the critical element is that none of the symptomatology for any one of these conditions is duplicative of or overlapping with the symptomatology of the other conditions). In Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009), the Federal Circuit "agree[d] with the Veterans Court that two defined diagnoses constitute the same disability for purposes of [38 C.F.R. §] 4.14 if they have overlapping symptomatology." Here, all VA examiners have opined that the symptomatology of the Veteran's brain disorder of Binswanger's Syndrome and residuals of transient ischemic attacks are related to the Veteran's already service-connected cardiovascular disabilities, and are also independent of his service-connected TBI and headaches. No examiner has found a separate brain disorder that relates back to active service or is secondary to service-connected disability. There is no medical evidence or medical authority to the contrary in this appeal, and federal regulation and case law provide clear guidance that separate ratings in such a case would amount to pyramiding under Esteban. See 6 Vet. App. 259 at 262; 38 C.F.R. §§ 4.14, 4.124a, Diagnostic Code 8045. The Board thus finds the Veteran fails the third prong of the test for entitlement to direct service connection or secondary service connection. See Davidson v. Shinseki, 581 F.3d 1313, 1315-16 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. (CONTINUED ON NEXT PAGE) Based on the above, the Board finds that the weight of the competent and credible evidence demonstrates that the Veteran's claimed brain disorder disability, separate from any already service-connected disabilities of cardiovascular disease, TBI, headaches, or asbestosis was not incurred in service. For these reasons, the Board finds that a preponderance of the evidence is against the claim of service connection for a brain disorder disability on a direct or secondary basis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not for application. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.