Citation Nr: 21073599 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 13-00 818 DATE: December 9, 2021 ORDER Entitlement to service connection for a right foot disability is denied. Entitlement to a total disability rating based upon individual employability (TDIU) is denied prior to November 17, 2020 Entitlement to a TDIU is granted from November 17, 2020. FINDINGS OF FACT 1. Clear and unmistakable evidence reflects that the Veteran's pes planus preexisted the Veteran's period of active service and that such disability was not aggravated by such service. 2. The Veteran's plantar fasciitis and hallux valgus of the right foot are not related to his active duty service or caused by a service-connected disability. 3. Prior to November 17, 2020, the Veteran's service-connected disabilities do not render him unable to engage and retain substantially gainful employment. 4. From November 17, 2020, the Veteran's service-connected disabilities render him unable to engage and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for a right foot disability have not been met. 38 U.S.C. §§ 1110, 1111, 5103, 5103A; 38 C.F.R. §§ 3.159, 3.303, 3.304 2. The criteria for a TDIU have not been met prior to November 17, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. 3. The criteria for a TDIU have been met from November 17, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1989 to May 1991, with an additional period of active duty for training (ADT) from July 1986 to February 1987. Most recently, the Board remanded the above issues in August 2021 for additional development. The case has since returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to service connection for a right foot disability is denied. The Veteran contends that he has a right foot disability that is directly related to his military service. Alternatively, the Veteran contends that his right foot disability is secondary to his service-connected left toe disability; specifically, the Veteran has stated that his right foot began to have additional pain due to overcompensating for his left foot. At the outset, the Board notes that the Veteran has a diagnosis of bilateral flat foot (pes planus) and bilateral hallux valgus. See, e.g., September 2021 VA examination. With respect to the Veteran's diagnosed bilateral pes planus, the question is whether the Veteran's pes planus preexisted his military service. Every Veteran shall be taken to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at the time of examination, acceptance, and enrollment, or where clear and unmistakable evidence demonstrates that the injury or disease existed before acceptance and enrollment and was not aggravated by such service. 38 U.S.C. § 1111. In the present case, no psychiatric disability was noted at the Veteran's entry into service, thus the presumption of soundness attaches. VA's Office of General Counsel has issued a precedent opinion holding that in order to rebut the presumption of soundness in 38 U.S.C. § 1111, VA must demonstrate by clear and unmistakable evidence both that the disease or injury in question existed prior to service and that it was not aggravated by service. VAOPGCPREC 3-2003 (July 16, 2003). The claimant is not required to show that the disease or injury increased in severity during service before VA's duty under the second prong of this rebuttal standard attaches. In the instant case, the evidence shows that the Veteran had bilateral pes planus that preexisted his military service. The Veteran's October 1989 enlistment examination notes that the Veteran had mild bilateral pes planus. The September 2021 VA examiner also concluded that the Veteran's bilateral pes planus clearly and unmistakably preexisted service, also noting that his bilateral pes planus was noted on his October 1989 enlistment examination. In light of the above, therefore, the Board finds that clear and unmistakable evidence reflects that the Veteran's bilateral pes planus preexisted the Veteran's period of active duty service and the presumption of soundness has been rebutted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). Hence, the only remaining question is whether clear and unmistakable evidence indicates that the preexisting disorder was not aggravated by service. The September 2021 VA examiner concluded that the Veteran's pes planus, which clearly and unmistakably existed prior to service, was clearly and unmistakably not aggravated beyond its natural progression by an in-service injury, event, or illness. The examiner noted that the Veteran's military occupation specialty was in supply. The examiner also noted that the Veteran's STRs note moderate bilateral pes planus in February 1986 and bilateral mild asymptomatic pes planus on October 1989, which actually indicates this condition may have improved after the first period of active duty service. The examiner noted that there are no additional complaints related to pes planus during active service to support the claim that it was worsened beyond its natural progression by active service. The examiner concluded that, based on the examination, history, and medical record review, the Veteran's preexisting pes planus was not permanently worsened beyond its natural progress by his active service. The VA examiner's opinion is probative, because it is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his pes planus is related to his active service. However, in the absence of a finding of aggravation of his pre-existing right foot disability during service, there is no in service event or injury which could serve as the in service incurrence upon which a nexus could be based. Thus, regardless of the Veteran's assertions, there is no in service incurrence to tie to his currently diagnosed pes planus. To the extent that the Veteran is asserting that his pre-existing pes planus was aggravated during service, the Board finds that the September 2021 VA examiner's opinion is the most probative evidence on this question. The examiner reviewed the evidence, examined the Veteran, and rendered the opinion based on the record, the examination, and the examiner's training and experience. Consequently, the Board gives more probative weight to the September 2021 opinion. In light of the above, the Board finds that clear and unmistakable evidence reflects that the Veteran's bilateral pes planus preexisted the Veteran's period of active service and that such disability was not aggravated by such service. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The Board will now consider the Veteran's service connection claim for his other right foot disabilities, to include right foot hallux valgus or plantar fasciitis, may be granted on a direct and secondary basis. Turning to whether the Veteran's service connection claim may be granted on a direct or secondary basis, as noted above, the Veteran contends that his right foot disability is either directly related to his military service or secondary to his service-connected left toe disability. Specifically, the Veteran has stated that his right foot began to have additional pain due to overcompensating for his left foot. The remaining question before the Board is whether a nexus may be established regarding the Veteran's right foot hallux valgus or plantar fasciitis. As to a nexus, in September 2019, the examiner opined that the Veteran's plantar fasciitis was less likely than not incurred in or caused by his military service. The examiner reasoned that a connection could not be established by the medical records. The examiner also opined that the Veteran's plantar fasciitis was less likely than not proximately due to the Veteran's service-connected left toe disability or aggravated by the Veteran's service-connected left toe disability. The examiner reasoned that secondary service connection could not be established through the medical records or literature. In regard to aggravation, the examiner provided detailed information regarding what causes plantar fasciitis and noted that it is typically an overuse injury. The November 2020 VA examiner concluded that the Veteran's right foot disability was less likely than not (less than 50 percent probability) proximately due to or the result of any of the Veteran's service-connected conditions, to include his service-connected knee and back conditions. The examiner acknowledged that the Veteran reported that his left foot pain caused him to compensate and put more stress on his right foot. The examiner noted that there has to be a significant long term gait disturbance to cause a problem on the contralateral extremity. However, in the letter to the state compensation fund, the examiner noted that the letter stated the Veteran's gait was slow without a limp. A December 2004 primary care note noted that his left foot pain sometimes interferes with gait. In November 2020, the examiner noted that the Veteran had a significant right sided limp. With respect to pes planus and plantar fasciitis specifically, the November 2020 VA examiner noted that individuals with pes planus or pes cavus are at increased risk for developing plantar fasciitis. The examiner cited an article that noted that this is often an overuse injury that is primarily due to a repetitive strain causing micro tears of the plantar fascia but can occur as a result of trauma or other multifactorial causes. With respect to hallux valgus, the examiner cited an article that noted that pes planus may lead to hallux valgus because of increased forefoot abduction that creates a non-physiologic load on the plantar medial aspect of the great toe during heel rise. However, the article also noted that the association between pes planus and hallux valgus is controversial. The November 2020 examiner also concluded that there is no clear evidence to suggest that an injury to one lower extremity would have any significant impact on the opposite uninjured limb unless the injury resulted in major muscle or nerve damage causing partial or complete paralysis of the damaged leg, and/or shortening of the injured lower extremity resulting in a limb length discrepancy of more than four or five centimeters, so that the individual's gait pattern has been altered to the extent that, clinically, there is an obvious lurching type gait (a significant limp). In order for this type of gait to have impact on the opposite or uninjured leg, it is likely that the abnormal gait or limp would need to be present over an extended period of time. A temporary abnormality in gait, e.g., a limp over a relatively short period of time of weeks or months, is unlikely to have any effect on the opposite leg. The use of a cast, cane, and crutches is also unlikely to have any major impact on the stress borne by the uninjured limb. The examiner noted that increased body weight (obesity) does, however, have a detrimental effect on both lower extremities and magnifies all of the previously described risk factors. The examiner also believed that his hallux valgus and plantar fasciitis is related to his pes planus and not his left foot or right knee. The examiner noted that she has no evidence to suggest that those two conditions may have resulted in an aggravation. The September 2021 VA examiner concluded that, based on the examination, history, and medical record review, the Veteran's current right foot condition, to include hallux valgus, is less likely as not incurred in and/or caused by the Veteran's foot condition during service. The examiner noted that the Veteran's right hallux valgus was diagnosed in 2006, 15 years after separation from active duty service. The examiner reasoned that there is no documented evidence to connect the development of hallux valgus to a foot condition during service. The Board finds the September 2019, November 2020, and September 2021 VA opinions, taken together, probative, as the opinions are based on an examination of the Veteran, a review of the evidence of record, and the opinions are based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Lacking a nexus on either a direct or secondary basis for the Veteran's service connection claim for his other right foot disabilities, to include right foot hallux valgus or plantar fasciitis, entitlement to service connection for a right foot disability is not warranted. 2. Entitlement to a TDIU is denied prior to November 17, 2020; entitlement to a TDIU is granted from November 17, 2020. The Veteran contends that he is unable to obtain and maintain substantially gainful employment due to his service-connected disabilities. Specifically, the Veteran reported having difficulty carrying heavy loads, wood, tools, and equipment as is necessary for his trade in construction due to his service-connected disabilities. See December 2010 VA Form 28-1900 Disabled Veterans Application for Vocational Rehabilitation. The Veteran also reported difficulty with sitting and standing for prolonged periods of time, and would need breaks if working in a position where he would be required to sit or stand for prolonged periods. See November 2021 LMI Packet. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, due to service-connected disability, from obtaining or maintaining any form of gainful employment consistent with his or her education and occupational experience. See 38 C.F.R. §§ 3.340, 3.341, 4.16. Under the applicable regulations, benefits based on individual unemployability are granted only when it is established that the service-connected disability or disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. Under 38 C.F.R. § 4.16, if there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16. In the instant case, the Veteran is in receipt of a 20 percent rating prior to February 2, 2021 and a 40 percent rating thereafter for his lumbosacral strain and bilateral spondylolysis; a 30 percent rating for residuals hairline fracture, left big toe; a 20 percent rating for left lower extremity radiculopathy; another 20 percent rating for left lower extremity radiculopathy; a 20 percent rating for right lower extremity radiculopathy; another 20 percent rating for right lower extremity radiculopathy; a 10 percent rating for hallux valgus of the left foot; a noncompensable rating prior to March 26, 2020 and a 10 percent rating thereafter for right knee strain; and a noncompensable rating for limitation of flexion of the right knee. The Veteran's combined disability rating from October 21, 2008 to February 29, 2016 was 40 percent. His combined disability rating from February 29, 2016 to March 26, 2020 was 50 percent. His combined disability rating from March 26, 2020 to February 2, 2021 was 60 percent. His combined disability rating from February 2, 2021 was 90 percent. Prior to February 2, 2021, the Veteran did not have at least one disability rated at least 60 percent disabling, even considering the bilateral factor, nor did he have a combined rating of 70 percent or more. Therefore, the Veteran did not meet the schedular requirements for a TDIU prior to February 2, 2021. From February 2, 2021, since the Veteran has at least one disability rated at least 40 percent and a combined rating of 90 percent, the Veteran meets the schedular requirements for a TDIU. However, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Pursuant to Ray, entitlement to an extraschedular TDIU must be referred to the Director for an initial determination where there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable due to service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). When denying an extraschedular TDIU referral to the Director under § 4.16(b), the Board must make two determinations in its decision: (1) that a referral for extraschedular TDIU is not warranted under the "reasonable possibility" standard set forth in Ray, and (2) that TDIU benefits are not warranted because the veteran is not unemployable due to service-connected disabilities. See Snider v. McDonough, ___ Vet. App. ___, No. 19-6707, (CAVC Nov. 19, 2021). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran "was ineligible for 4.16(b)-TDIU consideration." Id. However, the Board finds that Bowling and Floyd's prohibition against granting an extraschedular TDIU in the first instance has been implicitly overruled through the issuance of the Court's decisions in Thun and Anderson, as well as the Federal Circuit's affirmance of Thun and its decisions in Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) and Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). It simply defies logic and the intent of the law that the Board is able to review de novo the determinations of the Director of Compensation, yet must send it to him in the first instance, even when the Board finds that the evidence of record already shows the Veteran is incapable of obtaining or engaging in substantially gainful employment. Moreover, in a recent precedential decision, one of the Judges of the Court, in a concurring opinion, disagreed with the holding in Bowling and, cited Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992), in determining that the Board had the authority to award extraschedular TDIU in the first instance. See Wages v. McDonald, No. 13-2694, 2015 WL 293616, at *6 (Jan. 23, 2015) (Kasold, J., concurring). The Wages majority separately noted that, "[i]n sum, the Secretary's contention that § 4.16(b) vests an extraschedular TDIU award solely within the nonreviewable discretion of the Director conflicts with the statutory mandate that the Board provide the final decisions on section 511(a) benefits determinations. Accordingly, this contention is rejected." Id. at *5. (emphasis added). Finally, the majority, in a footnote, observed the current absurdity inherent in the § 4.16(b) process, noting that "Although it is not clear how the Secretary's approach of inserting the Director into the regulatory process while refusing to recognize the Director as the agency of original jurisdiction fits within the statutory scheme for adjudicating VA benefits claims, see, e.g., 38 U.S.C. § 7105 (providing for Board review of decisions by an agency of original jurisdiction), we need not further address this issue in the absence of a direct challenge to that process.") Id. at *5 fn 4 (emphasis added). Therefore, given the Board's reasoning as outlined above, it will not make the Veteran wait for any further processing by VA. See Delisio v. Shinseki, 25 Vet. App. 45, 63 (2011) (Lance, J., concurring) ("There is an unfortunateand not entirely unfoundedbelief that veterans law is becoming too complex for the thousands of regional office adjudicators that must apply the rules on the front lines in over a million cases per year."); cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (noting that an unnecessary remand "perpetuates the hamster-wheel reputation of veterans law"). Where, as in this case, a veteran fails to meet the applicable percentage standards, an extra-schedular rating is for consideration where the veteran is found unemployable by reason of service-connected disabilities. 38 C.F.R. § 4.16(b) (2017). Individual unemployability must be determined without regard to any non-service connected disabilities or a Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2015); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a Veteran's favor. 38 C.F.R. § 4.3 (2015). While the regulations do not provide a definition of "substantially gainful employment," VA Adjudication Procedure Manual, M21-1 MR, Part IV, Subpart ii, Chapter 2 (Dec. 13, 2005) (previously cited at M21-1, Part IV, paragraph 7.09), defines the term as that "at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the veteran resides." Also, in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to TDIU is whether her service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). Factual Background In the instant case, as to work history, the evidence of record shows that the Veteran is unemployed. While the Veteran did not complete VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the evidence shows that he is currently in vocational training and attempting to find work. According to his November 2021 VA Form 28-1902w Rehabilitation Needs Inventory (RNI), the Veteran was employed as a foreclosure specialist in March 2013. The Veteran also reported that his last job was in maintenance in February 2020. See September 2021 VA examination. The Veteran reported that the current reason for his unemployment is the COVID pandemic. Id. The Veteran also reported working in construction all his life. See December 2010 VA Form 28-1900 Disabled Veterans Application for Vocational Rehabilitation. In terms of education, the Veteran completed his GED in 1986. See November 2021 VA Form 28-1902w Rehabilitation Needs Inventory (RNI). The Veteran reported that he also holds certificates and/or licenses in construction, home inspector, and IRC. Turning to the relevant medical evidence, in the February 2016 VA back and knee examinations, the examiners concluded that neither his thoracolumbar spine (back) condition, to include his spondylolisthesis, nor his right knee strain impacted his ability to work. In November 2020, the VA examiner concluded that the Veteran's back condition impacted his ability to work. Specifically, the examiner noted that the Veteran may have difficulty with jobs that require prolonged standing and walking, repetitive bending, and moderate to heavy lifting. The examiner also noted that the Veteran should be able to perform a sedentary job, especially if he has a sit to stand option as needed. In July 2021, the VA examiner concluded that the Veteran's right knee strain impacted his ability to work. The examiner noted that his knee is aggravated and painful with walking, bending, and going up stairs. The Veteran is not able to sustain prolonged standing or walking without severe pain. The examiner further noted that painful episodes can last for one hour and are usually triggered by frequent changing of position from sitting to standing, and painful episodes can occur multiple times a day and daily depending on if he has to walk for lengthy periods at a time. The examiner further noted that occupational tasks which require prolonged sitting, standing, or walking longer than 10 minutes would likely have a negative impact on the Veteran's ability to function in the workplace. In the July 2021 VA examination, the examiner concluded that his spondylolisthesis and left lower radiculopathy impacts his ability to perform any type of occupation task, such as standing, walking, lifting, and sitting. Specifically, the examiner noted that occupational tasks which require sitting, standing, or walking for extended periods or bending to lift objects over 10 lbs should be avoided to prevent flare ups of his back condition and radiculopathy. In October 2021, the VA determined that the Veteran met the criteria for an employment handicap as his service-connected disabilities contribute in substantial part to his vocational impairment, and he has not overcome the effects of the impairment through further education, transferrable skills, or obtaining or maintaining suitable work. See October 2021 VR-64 Chapter 31 Positive Decision Letter. Analysis Based on the evidence above, the Board finds that a TDIU is warranted from November 17, 2020. Prior to November 17, 2020, the evidence does not show a reasonable possibility that that the Veteran is unemployable due solely to his service-connected disabilities or that his service-connected disabilities rendered him unable to engage and retain substantially gainful employment. See Ray v. Wilkie, 31 Vet. App. 58, 66 (2019); Snider v. McDonough, ___ Vet.App. ___, No. 19-6707, (CAVC Nov. 19, 2021). Specifically, in February 2016, the VA examiners noted that his service-connected back and knee conditions did not impact his ability to work and there is no other evidence of record for this period suggesting that these conditions impacted his employment for this period. The Board finds the February 2016 VA opinions probative, as the examiners physically examined the Veteran and addressed his work history and potential in accordance with his physical capabilities. Additionally, his vocational rehabilitation records indicate he was working in maintenance until at least February 2020, and he reported he was not working after this due to the COVID 19 pandemic. Thus, for the period prior to November 17, 2020, the Board does not find that the Veteran was unemployable or that there was a reasonable possibility of finding him unemployable, so TDIU on an extraschedular basis or referral for extraschedular consideration for this time period is not warranted. 38 C.F.R. § 4.16(b). However, beginning November 17, 2020, the date of his examination, the evidence shows that the Veteran's service-connected conditions began to impact his ability to work. With respect to physical work, the November 2020 VA examiner concluded that the Veteran would have difficulty in a job that required prolonged standing and walking, repetitive bending, and moderate to heavy lifting. The July 2021 VA examiners concluded that his back and knee conditions impacted his ability to work. Specifically, due to the Veteran's service-connected back and knee conditions, the Veteran is unable to perform tasks that require heavy lifting as well prolonged sitting, standing, or walking. Notably, in October 2021, the VA also determined that the Veteran has an employment handicap due to his service-connected disabilities. The Board finds the November 2020 and July 2021 VA examiners' opinions as well as the October 2021 VA determination probative, as the examiners physically examined the Veteran and addressed his work history and potential in accordance with his physical capabilities. Furthermore, the Veteran worked in construction and building inspections, which requires competent physical ability. As such, the Board finds that the Veteran could not perform physical tasks commensurate with his work history on a basis that would allow him to maintain substantially gainful employment. With respect to sedentary work, the Board acknowledges that the November 2020 VA opinion did not limit the Veteran's ability to perform sedentary work. However, given the Veteran's education and work history, which is predominantly in manual or physical labor, such as construction or conducting inspections, the Board does not believe that he would be able to routinely secure work in a sedentary environment. Given the evidence, the Board finds that the Veteran's overall disability picture impairs his ability to obtain and follow substantially gainful employment from November 17, 2020, but no earlier. Accordingly, the Board finds that the preponderance of the evidence supports the Veteran's claim for entitlement to a TDIU due to his service-connected disabilities from November 17, 2020. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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.