Citation Nr: 21071997 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 13-89 787A DATE: December 2, 2021 ORDER Entitlement to a 10 percent, but no greater, disability rating for ligamentous strain of the right knee (a right knee disability) is granted from March 30, 2012, through August 21, 2013. Entitlement to a disability rating in excess of 10 percent for a right knee disability throughout the applicable period is denied. Entitlement to a separate compensable evaluation of 20 percent, but no greater, for instability of the right knee is granted, effective August 22, 2013. Entitlement to a disability rating in excess of 20 percent for instability of the right knee from August 22, 2013, is denied. FINDINGS OF FACT 1. Prior to one year before VA received the Veteran's claim for an increased evaluation, and throughout the applicable period, the service-connected right knee disability was manifested by painful motion. 2. Since August 22, 2013, the Veteran has had a right knee ligament strain manifested by moderate instability. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent, but no greater, disability rating for the right knee disability prior to August 22, 2013, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5260. 2. The criteria for entitlement to a disability rating in excess of 10 percent for a right knee disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5003, 5260. 3. The criteria for entitlement to a separate compensable evaluation of 20 percent, but no greater, for instability of the right knee from August 22, 2013, through January 16, 2020, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 4. The criteria for entitlement to a disability rating in excess of 20 percent for instability of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 2000 through September 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a June 2012 rating decision of the Chicago, Illinois, Regional Office (RO) of the Department of Veterans Affairs (VA). In March 2021, this matter was last before the Board, at which time it was remanded for further development. The Board finds that there has been substantial compliance with the March 2021 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 147 (1999) (clarifying that substantial compliance with Board remand is required). Increased Ratings Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. When a question arises as to which of two ratings shall be applied under a particular DC, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they may be compensated under different diagnostic codes (DC). See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates staged ratings where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). A veteran may receive more than one compensable rating for different conditions of the same knee. Thus, the Board will discuss all applicable rating criteria for the knees. See VAOPGCPREC 09-04; VAOPGCPREC 23-97. The rating criteria for musculoskeletal disabilities were revised effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Because this revision occurred during the pendency of the Veteran's claim, whichever version is most favorable to him must be applied. However, the new version can only be applied as of its effective date. 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 7-2003; Kuzma v. Principi, 341 F.3d 1327, 1328-29 (Fed. Cir. 2003). Under both the earlier and revised rating criteria, degenerative arthritis is rated under Diagnostic Code 5003. Under this code, arthritis established by X-ray findings is rated on the basis of limitation of motion under the appropriate Diagnostic Codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined and not added, under Diagnostic Code 5003. Under the old criteria, DC 5256 is for ankylosis of the knee. Extremely unfavorable ankylosis in flexion at an angle of 45 degrees or more is rated at 60 percent. Unfavorable ankylosis in flexion between 20 degrees and 45 degrees warrants a50 percent rating. Unfavorable ankylosis in flexion between 10 degrees and 20 degrees warrants a 40 percent rating. A 30 percent rating is warranted for favorable ankylosis at an angle in full extension or in slight flexion between 0 degrees and 10 degrees. The criteria for the current DC 5256 are the same as the old DC 5256. Under the old criteria, DC 5257 consisted of severe, moderate, or slight recurrent subluxation or lateral instability that warranted either a 30, 20, or 10 percent disability rating, respectively. According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "slight" means small in amount. "Moderate" means limited in scope or effect. "Severe" means very painful or harmful or of a great degree. Under the current DC 5257, recurrent subluxation or instability resulting from unrepaired or failed repair of complete ligament tear causing peristent instability warrants a 30 percent rating. A 20 percent rating is warranted for a sprain, incomplete ligament tear, or repaired complete ligament tear causing peristent instability, or unprepared or failed repair of complete ligament tear causing persistent instability. Patellar instability warrants a 30 percent disability rating if a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a history of surgical repair) that does not require a prescription for a brace, cane, or walker. Note (1) provides that, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) provides that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as a surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration).] Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this Diagnostic Code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Under the old criteria, DC 5258 provided a 20 percent disability rating for dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint. The current DC 5258 criteria is the same as the prior criteria. Both the old and current criteria for DC 5259 provides a 10 percent rating for symptomatic removal of the semilunar cartilage. Under the old and current criteria, DC 5260, limitation of flexion of the knee to 15 degrees warrants a 30 percent rating. A 20 percent rating is warranted for flexion limited from 16 to 30 degrees. A 10 percent rating is warranted for flexion limited to 45 degrees. Flexion limited to 60 degrees is noncompensable. Under the prior and current criteria for DC 5261, extension of the knee limited to 45 degrees or more warranted a 50 percent rating. A 40 percent rating is warranted for extension limited from 44 to 30 degrees. A 30 percent rating is warranted for extension limited from 29 to 10 degrees. A 20 percent rating is warranted for extension limited from 19 to 15 degrees. A 10 percent rating is warranted for extension limited from 14 to 10 degrees. Limitation to 5 degrees is rated as noncompensable. Under the previous criteria for DC 5262, nonunion of either the tibia or fibula with loose motion requiring a brace warranted a 40 percent rating. For malunion of the tibia or fibula with either marked, moderate, or slight knee or ankle disability, a 30, 20, or 10 percent disability rating is warranted, respectively. Under the current criteria, DC 5262 provides for a 40 percent rating for nonunion of the tibia and fibula, with loose motion, requiring a brace. The DC also notes that malunion should be evaluated under DCs 5256, 5257, 5260, or 5261 for the knee or DC 5262, whichever results in the highest evaluation. A 30 percent rating is warranted for medial tibial stress syndrome or shin splints requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shore orthotics or other conservative treatment, both lower extremities. A 20 percent rating is warranted when it requires treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity. A rating of 10 percent is warranted when it requires treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities. Treatment less than 12 consecutive months for one or both lower extremities is noncompensable. Genu recurvatum, acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated, is rated at 10 percent disability under both the prior and current DC 5263 rating criteria. When assessing the severity of musculoskeletal disabilities that are, at least partly, rated on the basis of limitation of motion, VA also must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when a veteran's symptoms are most prevalent ("flare-ups") due to the extent of his or her 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, 20407 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Service connection has been established for the right knee ligament strain and right knee instability. The ligament strain has been rated under DC 5260, based on limitation of flexion. The lateral instability is rated under DC 5257. Shortly after he filed his claim for an increased evaluation of his right knee ligamentous strain in March 2012, the Veteran was afforded a VA examination in May 2012. Subjectively, the Veteran related that his right knee was painful and weak, and would sometimes swell. He related that the knee did not feel like it was strong, particularly on the outside of the knee. Examination at that time showed full flexion to 140 degrees or greater and full extension to zero degrees, with no objective evidence of painful motion. There was no additional limitation after repetitive use. Muscle strength was normal. There was no instability or patellar subluxation. While the Veteran described a history of shin splints in 2000, there were no such findings on examination. There was no meniscal involvement. Imaging studies were normal. The condition had no impact on the Veteran's ability to work. A ligamentous strain was assessed. The Veteran denied flare-ups. A private medical record dated in July 2012 documents apprehension at "hyperextension" at about 125 degrees. There was no effusion or meniscal findings. The anterior cruciate ligament (ACL) was stable. Persistent pain in the right knee, lateral, without true evidence of articular cartilage problem or meniscal injury was assessed. An MRI of the knee was normal. A VA physical therapy note dated August 22, 2013, reflects intact ligaments, but that the Veteran reported that the right knee gave out on occasion. Guarding made it difficult to perform McMurray's testing. Extension was within normal limits. Flexion was als within normal limits, albeit with pain and popping. Based upon this note, the AOJ granted a 10 percent evaluation based on non-compensable painful limitation of motion. VA records document reports of knee pain, with a knee brace discussed in January 2015. However, it does not appear that the knee brace was ever prescribed. The Veteran was afforded another VA examination in January 2020. At that time, a ligamentous strain of the right knee was assessed. The Veteran related that he had constant pain in the right knee, but denied flare-ups and functional loss or impairment, including, but not limited to, repeated use over time. He avoided physical work due to knee pain. Flexion was full to 140 degrees and extension was full to zero degrees, both on active and passive testing. Flexion and extension each exhibited pain. There was evidence of pain with weight bearing. Repetitive use testing did not result in additional functional loss or range of motion. While the Veteran was not examined immediately after repetitive use over time, the examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss over time. Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength was 3/5 in flexion and extension. There was no history of recurrent subluxation, lateral instability, or recurrent effusion. However, there was medial and lateral instability of 2+. The Veteran did not use an assistive device. There was no meniscal involvement. The findings of the left knee were normal. Imaging studies were normal. In July 2020, the AOJ sought an addendum opinion to address the significance of the record relating to the knee MRI, noted above, which was not available to the examiner at the time of the January 2020 VA examination. Based upon an examination and review of the Veteran, the new VA examiner stated that the MRI findings were normal based upon his review of that record, notwithstanding that the formal MRI report was not in the private records. On examination, the examiner was unable to detect any signs of joint instability. The examiner explained that other that the Veteran's subjective reports of pain in the lateral compartment of the right knee, there were no clinical signs on physical examination or imaging evidence of significant right knee pathology or dysfunction. There were no clinical signs of laxity in the medial collateral ligament, lateral collateral ligament, anterior cruciate ligament, or the posterior cruciate ligament. On active and passive range of motion testing, there were subjective reports of pain between 95 and 140 degrees of flexion in the right knee. There was no additional imitation following repetitive use testing. The left knee showed unrestricted pain-free active and passive range of motion. The examiner had no basis to comment on flare-ups. In an October 2020 addendum, the examiner explained that their July 2020 opinion had not changed. They explained that while the exact 2012 MRI findings were not available, the MRI was unnecessary because the findings of the knee were mild and not severe enough to depend on an MRI for basing an opinion. The Veteran was most recently afforded a VA examination in July 2021. At that time, the examiner retrospectively assessed right knee instability as of August 22, 2013. At this time, the Veteran reported pain, stiffness, and instability. He also reported random flare-ups, which he characterized as severe and lasting a couple of days, precipitated by varying activity. The Veteran reported that despite his symptoms, he continued with his day. He related that he usually took stairs one at a time. Range of motion testing showed initial findings of flexion to 130 degrees and extension to zero degrees, both actively and passively, with no further limitation on observed repetitive use. There was pain on active motion, with impaired ability to bend, stoop and kneel. In terms of repeated use over time, the examiner concluded that pain and fatigability would result in limitation of flexion to 125 degrees, with extension full to zero degrees. On flare-ups, the examiner estimated that flexion would be further limited to 105 degrees, with extension remaining full to zero degrees. There was no recurrent subluxation. There was no history of recurrent patellar instability. The Veteran did not use any assistive device and had not been prescribed one. There was laxity of the posterior cruciate ligament of 1+. The examiner described a moderate history of instability. There was no meniscal involvement. Examination of the left knee resulted in assessment of a left knee strain, with flexion limited to 105 degrees by pain, at worst, after repeated use over time. 1. Entitlement to a compensable disability rating for ligamentous strain of the right knee (a right knee disability) prior to August 22, 2013. Prior to August 2013, the AOJ has assigned a zero percent (non-compensable) disability evaluation based on limitation of flexion not approximating the criteria for the assignment of a 10 percent or greater evaluation, i.e., flexion limited to 45 degrees or less. See 38 C.F.R. § 4.71a, DC 5260. However, it is clear to the Board that the Veteran's right knee ligamentous strain has manifested by painful motion throughout the applicable period. At his May 2012 VA examination, the Veteran competently reported painful motion. Contemporaneous VA records document reports of knee pain. A Veteran is competent to describe symptoms of the knee joint. Clyburn v. West, 12 Vet. App. 296, 301 (1999). The U. S. Court of Appeals for Veterans Claims (Court) has also held that painful motion, in particular, may be "objectively confirmed" by a layperson who witnessed a veteran experience difficulty walking, standing, or sitting, or display a facial expression, such as wincing, indicative of pain. Petitti v. McDonald, 27 Vet. App. 415, 429-30 (2015). In light of the Veteran's competent and probative reports of painful motion of the right knee, a10 percent rating is warranted pursuant to 38 C.F.R. § 4.59 and Burton v. Shinseki, 25 Vet. App. 1, 3-5 (2011). This regulation and interpreting case together held that joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint under the appropriate diagnostic code to the joint involved, even if arthritis is not present. In other words, section 4.59 does not require "objective" evidence of painful motion in order to award a compensable rating. That is, because a rating for painful motion pursuant to 38 C.F.R. § 4.59 and Burton is not assigned under Diagnostic Code 5003, "objective" evidence of painful motion is not required. Petitti, 27 Vet. App. at 424-30. The Court in Petitti further held that credible lay evidence of functional loss due to pain, including during flare-up periods, observed outside of the VA examination context, could constitute objective evidence in support of a compensable evaluation. Id. at 429-30. Accordingly, effective the date of the Veteran's claim, March 20, 2012, the Board concludes that a 10 percent evaluation is warranted. In assigning the effective date of the increased evaluation, the Board has considered whether an earlier effective date would be warranted within the one-year lookback period. An effective date for an increased rating claim may date back as much as one year before the date of the formal application for increase if it is "factually ascertainable that an increase in disability had occurred" within that timeframe. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126 (1997). However, the evidence shows that pain manifested prior to this one-year period. See e.g., August 2010 VA examination. Because the increase was factually ascertainable more than one year prior to the date of receipt of the claim, the date of claim, March 30, 2012, is the proper effective date. 2. Entitlement to a disability rating in excess of 10 percent for a right knee disability. Now that the Board has awarded a 10 percent evaluation since the date of claim, the issue is whether an evaluation in excess of 10 percent is warranted. The assigned DC 5260 suggests that the right knee disability is rated based on compensable limitation of flexion. 38 C.F.R. § 4.71a. A review of the evidence reflects that the disability has been rated based on painful noncompensable limitation of motion, and that the right knee disability has not had compensable limitation of motion (i.e., limitation of flexion or extension) at any time during the relevant rating period. Therefore, the Diagnostic Code assigned should have been DC 5003, to show that the disability is being rated based on noncompensable limitation of motion that is painful. For this reason, the Board is changing the DC for the right knee ligamentous strain to 5003 to reflect the actual rating already assigned. 38 C.F.R. § 4.71a. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for the right knee disability. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, fatigability, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that he avoided physical activity and stairs, particularly during flare-ups would not result in limitation of motion more nearly approximating flexion limited to 30 degrees. At worst, with consideration of flare-ups, flexion was limited to 95 degrees. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). However, no other diagnostic codes are applicable in this case because the only manifestations are painful non-compensable limited motion and lateral instability, addressed below. 3. Entitlement to a disability rating in excess of 20 percent rating for instability of the right knee from January 17, 2020, to include entitlement to a separate compensable evaluation prior thereto. The AOJ awarded a separate 20 percent rating for lateral instability, effective January 17, 2020, based on the VA examination conducted on that date and which indicated lateral instability of 2+. Because the separate evaluation was not granted for the full period, the Board must address whether a separate evaluation for lateral instability is warranted prior to January 17, 2020. Based upon the August 22, 2013, VA physical therapy note and the July 2021 VA retrospective opinion, the Board concludes that as of August 22, 2013, a separate evaluation is warranted for lateral instability. While the August 22, 2013, VA physical therapy note does not clinically assess lateral instability, the July 2021 VA examiner competently identified this as the date that the lateral instability was factually ascertainable. See Swain v. McDonald, 27 Vet. App. 219, 224 (2015). As such, the Board finds that a separate evaluation is warranted from August 22, 2013, but not prior thereto, for lateral instability. Turning to the evaluation of lateral instability of the right knee from August 22, 2013, through January 16, 2020, the Board concludes that a 20 percent, but no greater, evaluation is warranted. Until the January 17, 2020, VA examination, no instability was shown by objective findings. However, as noted above, VA obtained a retrospective opinion, in which the examiner identified a history of moderate instability. As such, from August 22, 2013, through January 16, 2020, a 20 percent evaluation is warranted under 38 C.F.R. § 4.71a, DC 5257. Now that the Board has granted a 20 percent evaluation from August 22, 2013, the question is whether an evaluation in excess of 20 percent is warranted from that date. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for lateral instability of the right knee. The Board has carefully considered the Veteran's reports about instability as well as the objective medical findings. English, 30 Vet. App. 347, 352-53. However, overall, the lay and medical evidence indicates that the instability symptoms have varied and do not suggest the presence of symptoms more nearly approximating severe recurrent subluxation or lateral instability. The instability has been characterized as moderate and has been shown as 2+, on a scale of zero (normal) to 3+. This indicates moderate instability. While the Veteran has related feelings of instability in the knee, the knee was stable on examination on numerous occasions. Moreover, there is no history of falls, bracing or the need for any type of assistive device to suggest severe instability. Under the new criteria, as applicable, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the right knee instability. The Board has carefully considered the Veteran's reports about instability. English, 30 Vet. App. 347, 352-53. However, the patellofemoral complex is not involved here, and there is no partial or complete tear of any ligament. A ligamentous strain has been assessed. Thus, the new criteria do not provide for an evaluation in excess of 20 percent. The Board has also considered the other Diagnostic Codes pertaining to the knee and leg. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits paying compensation twice for the same symptoms or functional impairment). However, no other diagnostic codes are applicable in this case because the only manifestations are painful non-compensable limited motion and lateral instability, addressed below. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 20 percent for right knee instability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. K.A. KENNERLY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joseph R. Keselyak, 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.