Citation Nr: 21074329 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 17-30 929 DATE: December 14, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for residuals of fracture, right anterior superior calcaneus prior to August 1, 2017 is denied. Entitlement to an initial disability rating of 10 percent, but no higher, for Achilles tendonitis affecting the right ankle, status post tendon debridement with flexor hallucis longus tendon transfer from May 3, 2016 to May 23, 2016 is granted. Entitlement to an initial disability rating in excess of 10 percent for Achilles tendonitis affecting the right ankle, status post tendon debridement with flexor hallucis longus tendon transfer prior to January 9, 2017 is denied. Entitlement to a disability rating in excess of 30 percent since August 1, 2017 for right calcaneus fracture with Achilles tendon rupture, status post debridement with flexor hallucis longus tendon transfer with injury to muscle group XI, with muscle atrophy, tarsal tunnel syndrome with skin paresthesias, and loss of motion of the foot and ankle is denied. FINDINGS OF FACT 1. Prior to August 1, 2017, the Veteran's residuals of fracture, right anterior superior calcaneus is a moderate foot injury, a moderately severe foot injury is not shown. 2. Resolving reasonable doubt in favor of the Veteran, it is factually ascertainable that he met the criteria for a 10 percent rating for Achilles tendonitis affecting the right ankle, status post tendon debridement with flexor hallucis longus tendon transfer effective May 3, 2016. 3. Prior to August 1, 2017, the Veteran's Achilles tendonitis affecting the right ankle, status post tendon debridement with flexor hallucis longus tendon transfer is manifested by no more than moderate limited motion of the ankle. 4. Since August 1, 2017, the symptoms of the Veteran's right calcaneus fracture with Achilles tendon rupture, status post debridement with flexor hallucis longus tendon transfer with injury to muscle group XI, with muscle atrophy, tarsal tunnel syndrome with skin paresthesias, and loss of motion of the foot and ankle more nearly approximate the criteria for severe muscle injury under Diagnostic Code 5311. CONCLUSIONS OF LAW 1. Prior to August 1, 2017, the criteria for a rating in excess of 10 percent for residuals of fracture, right anterior superior calcaneus have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5284. 2. The criteria for an effective date of May 3, 2016, but no earlier, for a stand-alone disability rating for Achilles tendonitis affecting the right ankle, status post tendon debridement with flexor hallucis longus tendon transfer have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 3. Prior to August 1, 2017, the criteria for a rating in excess of 10 percent for Achilles tendonitis affecting the right ankle, status post tendon debridement with flexor hallucis longus tendon transfer have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271. 4. The criteria for entitlement to a rating in excess of 30 percent since August 1, 2017 for right calcaneus fracture with Achilles tendon rupture, status post debridement with flexor hallucis longus tendon transfer with injury to muscle group XI, with muscle atrophy, tarsal tunnel syndrome with skin paresthesias, and loss of motion of the foot and ankle have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.56, 4.73, Diagnostic Code 5311. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1979 to June 1982. These matters are before the Board of Veterans' Appeals (Board) on appeal of a May 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in December 2019. A transcript of the hearing has been associated with the Veteran's electronic claims file. In February 2020, the Board remanded the appeal to the RO for additional development. The appeal has been returned to the Board for further consideration. Increased Ratings Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § Part 4. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. When there is a question as to which of two ratings to apply, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating, otherwise the lower rating shall be assigned. 38 C.F.R. § 4.7. In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Fenderson v. Brown, 12 Vet. App. 119, 12627 (1999). When entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A veteran may experience multiple distinct degrees of disability that might result in the assignment of staged ratings, which are different levels of compensation from the time that the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The regulations pertaining to rating musculoskeletal disabilities were revised, effective February 7, 2021. Claims, such as this, pending prior to the effective date will be considered under both old and new rating criteria from that date, and whatever criteria is more favorable to the Veteran will be applied from the effective date of the change. However, the new rating criteria are not applicable prior to its effective date of February 7, 2021. The Board notes that, as relevant to this appeal, there has been no change to the rating criteria under Diagnostic Codes 5284 or 5311. While the rating criteria under Diagnostic Code 5271 has changed, these changes are not relevant to the period prior to February 7, 2021 when this rating was in effect. By way of history, the Veteran filed a claim for an increased rating for residuals of a right heel fracture in June 2015. At a May 2016 VA examination, the Veteran's foot condition was characterized as moderate in severity. The Veteran was also diagnosed with Achilles tendonitis affecting the right ankle secondary to his service-connected right heel fracture. In a May 2016 rating decision, the RO assigned an increased disability rating of 10 percent effective June 26, 2015, the date of claim. The Veteran then filed a claim for right Achilles tendonitis secondary to right calcaneus fracture, and also filed a Notice of Disagreement to the May 2016 rating decision. In a June 2016 rating decision, the RO recharacterized the Veteran's disability as residuals, fracture, right anterior superior calcaneus with Achilles tendonitis. The RO continued the 10 percent disability rating for moderate symptoms and declined to assign a separate rating for Achilles tendonitis as the Veteran's symptoms of pain in the posterior and medial heel were common to both his Achilles tendonitis and right heel fracture. This appeal followed. During the pendency of this appeal, the Veteran underwent surgery for a right Achilles tendon rupture in January 2017. In a January 2018 rating decision, the RO assigned a temporary 100 percent disability rating from January 9, 2017 to July 31, 2017. Nothing in this Board decision is intended to disturb this temporary total disability rating. In an August 2020 rating decision, the RO assigned a separate, stand-alone rating of 10 percent for Achilles tendonitis affecting the right ankle, status post tendon debridement with flexor hallucis longus tendon transfer effective May 24, 2016. The RO then discontinued the 10 percent disability ratings assigned for residuals of fracture, right anterior superior calcaneus fracture and Achilles tendonitis affecting the right ankle effective August 1, 2017. Effective August 1, 2017, the RO recharacterized the Veteran's disability as right calcaneus fracture with Achilles tendon rupture, status post debridement with flexor hallucis longus tendon transfer with injury to muscle group XI, with muscle atrophy, tarsal tunnel syndrome with skin paresthesias, and loss of motion of the foot and ankle and assigned a 30 percent disability rating. 1. Entitlement to a disability rating in excess of 10 percent for residuals of fracture, right anterior superior calcaneus prior to August 1, 2017 2. Entitlement to a disability rating in excess of 10 percent for Achilles tendonitis affecting the right ankle, status post tendon debridement with flexor hallucis longus tendon transfer prior to January 9, 2017 Regarding the disability rating for residuals of fracture, right anterior superior calcaneus prior to August 1, 2017, the Board finds that a rating in excess of 10 percent is not warranted. Regarding the disability rating for Achilles tendonitis prior to August 1, 2017, the Board finds that a rating of 10 percent, but no higher, is warranted effective May 3, 2016, the date that a diagnosis of Achilles tendonitis secondary to a right heel fracture was factually ascertainable. The Veteran was afforded a VA examination for foot and ankle conditions in May 2016. The Veteran reported flare-ups, stating "the more I am on my feet, the worse my heel feels." Upon examination of the right foot, the examiner noted pain with functional loss, to include pain with weight-bearing and non-weight bearing, and interference with standing. Regarding flare-ups, the examiner noted functional loss consisting of heel and Achilles pain with prolonged standing, walking up hills and inclines, and with prolonged driving. The examiner also noted that the Veteran's foot condition does not chronically compromise weight bearing or require arch supports, custom orthotic inserts or shoe modifications. The examiner characterized the severity of the Veteran's foot condition as moderate. Upon examination of the Veteran's right ankle, the VA examiner diagnosed right Achilles tendonitis, and opined that this condition was secondary to the Veteran's service connected right calcaneus fracture. The Veteran's current symptoms were noted as pain, especially with prolonged walking and going up hills/inclines. Range of motion testing was normal, although the Veteran exhibited pain on dorsiflexion. The examiner noted functional limitations as limitation of weight bearing tasks and pain with prolonged driving. Regarding the Veteran's reported flare-ups, the examiner stated that he was unable to determine functional loss during flare-ups without resorting to mere speculation as the Veteran was not being examined during a flare-up. The examiner noted suspected right ankle instability or dislocation, although stability testing revealed no instability. Fracture, right anterior superior calcaneus The Veteran's residuals of fracture, right anterior superior calcaneus is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5284. Under Diagnostic Code 5284, the criterion for a 10 percent rating is a moderate foot injury. The criterion for a 20 percent rating is a moderately severe foot injury. The criterion for a 30 percent rating, the maximum schedular rating under Diagnostic Code 5284, is a severe foot injury. Actual loss of use of the foot is rated at 40 percent. Upon careful review of the evidence of record, the Board finds the Veteran is not entitled to a rating in excess of 10 percent under DC 5284 for his service-connected residuals of fracture, right anterior superior calcaneus prior to August 1, 2017. Neither the lay nor medical evidence of record more nearly reflects that the criteria for ratings in excess of 10 percent have been met at any time during the appeal period. 38 C.F.R. § 4.71a, DC 5284. The Board finds the Veteran's residuals of fracture, right anterior superior calcaneus more nearly approximated a rating of 10 percent for "moderate" symptoms during this timeframe. The Board understands the term "moderately severe" to be impairment somewhere between "moderate" and "severe." The Board is not persuaded that a more appropriate rating is "moderately severe" where a separate rating is already in effect for an anatomically close disabled part which together are causing the complained of functional impairment. The Veteran predominately complained of functional impairment described as worsening pain after prolonged walking/standing. However, the May 2016 VA examiner noted that the Veteran's right heel condition did not chronically compromise weight bearing or require arch supports, custom orthotic inserts or shoe modifications. Notably, the VA examiner described the Veteran's right heel disability as "moderate" in nature. The Board thus finds that the Veteran's symptoms during this timeframe were consistent with no more than moderate disability. The record does not reflect that his right heel disability was manifested with moderately severe or severe symptoms. Accordingly, a rating in excess of 10 percent prior to August 1, 2017 is not warranted. 38 C.F.R. § 4.71a, DC 5284. There are no other Diagnostic Codes for consideration here. The Board notes that, as discussed below, the Veteran has been assigned a separate, stand-alone disability rating of 10 percent for the relevant timeframe for painful motion due to right Achilles tendonitis. The Veteran has also been assigned a separate noncompensable rating for a scar of the right posterior heel associated with his January 2017 surgery. There are no other scars identified on examination. The Board accepts that the Veteran has functional impairment and pain. The Board acknowledges the Veteran's lay reports of symptomatology such as decreased mobility, some trouble with activities of daily living, and difficulty with pain and following prolonged walking, standing, and driving. However, neither the lay nor medical evidence reflects symptoms required to warrant the next higher ratings for the period considered. As such, a rating in excess of 10 percent for residuals of fracture, right anterior superior calcaneus is not warranted. As the preponderance of the evidence is against this claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107 (b); Gilbert, supra. Right Achilles tendonitis The Veteran's right Achilles tendonitis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271. Under 38 C.F.R. § 4.71a, Diagnostic Code 5271, a 10 percent rating is warranted for moderate limitation of motion and a 20 percent rating is assigned for marked limitation of motion. While the Veteran has not shown limitation of motion of the right ankle for the applicable period, a minimum compensable rating has been assigned for evidence of painful motion under 38 C.F.R. § 4.59. See Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). Upon careful review of the evidence of record, the Board finds the Veteran is entitled to a rating of 10 percent, but no higher, under DC 5271 for his right Achilles tendonitis effective May 3, 2017. The Veteran's claim for right Achilles tendonitis is essentially a claim for an increased rating for residuals of his heel fracture. As such, the laws governing the assignment of effective dates for these types of claims apply. The effective date of a rating and award of compensation based on a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, an increased rating may be awarded up to one year prior to receipt of the claim if the evidence shows an increase in disability was factually ascertainable during that period. 38 C.F.R. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2). For this purpose, the evidence must show that the increase in disability was sufficient to warrant a higher rating under the rating criteria. Hazan v. Gober, 10 Vet. App. 511, 519 (1992). Thus, determining the proper date for an increased rating requires (1) a determination of the date of the receipt of the claim for the increased rating and (2) a review of all the evidence of record since one year prior to the date of the claim to determine when an increase in disability was "factually ascertainable" in terms of meeting or approximating the criteria for a higher rating. 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) are applicable only where the increase precedes the claim, provided that the claim is received within one year after the increase. Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). The phrase "otherwise, date of receipt of claim" provides the applicable effective date when a factually ascertainable increase occurred more than one year prior to receipt of the claim for increased compensation. Id.; see also VAOPGCPREC 12-98 at 2. Because neither 38 U.S.C. § 5110 (b)(2) nor 38 C.F.R. § 3.400 (o)(2) refer to the date of the claim as the effective date of an award of increased disability compensation, the effective date for increased disability compensation is the date on which the evidence establishes that a Veteran's disability increased, if the claim is received within one year from such date. In determining when an increase is "factually ascertainable," VA should look to the record as a whole, including testimonial evidence and expert medical opinions, to determine when the increase took place. VAOPGCPREC 12-98 at 5. In this case, the Veteran was diagnosed with right Achilles tendonitis secondary to his service connected right calcaneus fracture at a May 3, 2016 VA examination. The Veteran thereafter filed a claim for right Achilles tendonitis on May 24, 2016. As such, the increase in severity of the Veteran's condition was factually ascertainable on May 3, 2016 and a 10 percent stand-alone rating for right Achilles tendonitis is warranted from this date. However, a disability rating in excess of 10 percent prior to January 9, 2017 is not warranted. The May 2016 VA examiner noted normal range of motion with pain on dorsiflexion. The examiner also noted functional limitations with weight bearing tasks and pain with prolonged driving. The Board acknowledges the Veteran's reports of flare ups and the VA examiner's determination that she could not estimate functional loss related to flare-ups without resorting to mere speculation. However, the Board notes that foot and ankle examinations were conducted consecutively on the same date and the Veteran attributed his flare-ups to his heel and not his ankle. As noted above, prior to January 9, 2017 the symptoms of pain attributed to the Veteran's heel and ankle conditions are separate and distinct for rating purposes. The Veteran's heel pain has been considered under a separate Diagnostic Code. As such, the Board finds that the Veteran is not prejudiced by the findings of the May 2016 VA ankle condition examiner. The Board finds that the impairment of the right ankle itself is best described as "moderate" and does not rise to the level of "marked" limitation of motion where normal range of motion was demonstrated on examination. The Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, the claim is not in equipoise. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Accordingly, a disability rating in excess of 10 percent for right Achilles tendonitis is not warranted prior to January 9, 2017. 3. Entitlement to a disability rating in excess of 30 percent since August 1, 2017 for right calcaneus fracture with Achilles tendon rupture, status post debridement with flexor hallucis longus tendon transfer with injury to muscle group XI, with muscle atrophy, tarsal tunnel syndrome with skin paresthesias, and loss of motion of the foot and ankle Since August 1, 2017, the Veteran has been in receipt of a 30 percent disability rating for right calcaneus fracture with Achilles tendon rupture, status post debridement with flexor hallucis longus tendon transfer with injury to muscle group XI, with muscle atrophy, tarsal tunnel syndrome with skin paresthesias, and loss of motion of the foot and ankle. The Veteran's condition is currently rated 30 percent under 38 C.F.R. § 4.73, Diagnostic Code 5311. Diagnostic Code 5311 provides ratings for injuries to Muscle Group XI. The function of Muscle Group XI is propulsion, plantar flexion of foot, stabilization of arch, flexion of toes, and flexion of knee. The muscle group is comprised of the posterior and lateral crural muscles and the muscles of the calf. The muscles include the triceps surae (gastrocnemius and soleus); tibialis posterior; peroneus longus; peroneus brevis; flexor hallucis longus; flexor digitorum longus; popliteus; and plantaris. A maximum 30 percent rating is assigned for severe impairment. Under 38 C.F.R. § 4.55 (a), a muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. As discussed below, the Veteran has been diagnosed with mild incomplete paralysis of the posterior tibial nerve, which is rated under Diagnostic Code 8525. The impairments of Muscle Group XI and the posterior tibial nerve arise from the same injury and affect overlapping functions. Therefore, separate ratings under Diagnostic Code 5311 and 8525 are prohibited. The Board will therefore determine whether increased ratings are warranted under either Diagnostic Code 5311 or 8525 and rate the Veteran's disability under the diagnostic code that awards the higher rating. The evidence of record, both medical and lay, reflects that, while the Veteran does experience paralysis of the posterior tibial nerve, the Veteran does not suffer complete paralysis of this nerve. Nor has the Veteran suggested that his right lower extremity is so severe. The Board therefore concludes that a rating in excess of 30 percent is not warranted and is in fact the maximum rating under Diagnostic Code 8525. At a December 2019 Board hearing, the Veteran testified that the residuals of right heel fracture and Achilles tendonitis have worsened since a January 2017 surgery on the right Achilles tendon. The Veteran testified that he experiences loss of range of motion in his right foot, constant sensitivity, swelling, numbness in the bottom of his foot, and flare ups in his right heel which consist of sharp pain. The Veteran stated that his VA physician told him that he has "possible nerve damage, tarsal tunnel". The Veteran testified that he developed atrophy in his right calf after the January 2017 surgery as he was required to wear a boot and to limit weight bearing on the right lower extremity. The Veteran was afforded VA examinations for peripheral nerve conditions in February 2020. The examiner noted symptoms of mild intermittent pain, severe paresthesias, and mild numbness. Physical examination revealed muscle atrophy of the right calf, with the normal, left side measuring 41 centimeters and the right, atrophied side measuring 40 centimeters. The Veteran's reflexes were normal, and he was noted to have an antalgic gait. The examiner noted functional impact consisting of difficulty feeling sensation in the sole of the foot which may cause difficulty feeling the gas pedal. The Veteran was found to have mild incomplete paralysis of the posterior tibial nerve. The Board finds that the above evidence reflects no more than mild, incomplete paralysis, which corresponds to a 10 percent disability rating. Assigning a disability rating under Diagnostic Code 8525 would not result in a higher rating than the 30 percent rating that has been assigned under Diagnostic Code 5311. With respect to disability ratings under Diagnostic Code 5311, for severe disability, the following objective findings apply: Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4)(iii). In February 2020, the Veteran was afforded VA examinations of the foot and ankle. Upon range of motion testing, the right ankle revealed dorsiflexion of 0 to 5 degrees and plantar flexion of 0 to 30 degrees. There was pain resulting in functional loss associated with weight bearing, non-weight bearing, passive and active range of motion testing. The examiner noted that the Veteran's range of motion was decreased after his January 2017 surgery. The Veteran was noted to have a non-penetrating muscle injury affecting muscle group XI and muscle atrophy of the right calf. Diagnostic testing showed a normal right ankle. Regarding flare-ups and repeated use over time, the examiner considered the Veteran's examination results, medical records, and the Veteran's statements and determined that he was unable to estimate loss of motion in terms of degrees of motion as the Veteran was not examined after repeated use over time and was unable to estimate the effect on his range of motion. The examiner stated that "(t)here is a lack of general knowledge in the medical community at large that would enable anyone to make any further 'opinion' or statement." The examiner, however, noted the Veteran's statement explaining the impact of his flare-ups, that his ankle condition was aggravated by being on his feet a lot and driving for more than one hour, which caused daily flare-ups that were relieved by rest. The Board finds that after consideration of the above symptoms, to include pain, loss of motion of the foot and ankle, sensitivity, swelling, and numbness more nearly approximate a severe level of disability corresponding with a 30 percent disability rating under Diagnostic Code 5311. While the Board notes that the Veteran has a decreased range of motion of the right ankle, a separate evaluation for joint manifestations and muscle damage acting on the same joint are prohibited if both conditions result in the same symptoms. Regarding the Veteran's report of flare-ups during the February 2020 VA examination, he is essentially describing a repetitive use over time type of impairment. A separate rating for decreased range of motion is not applicable in this instance. A higher rating based on functional loss, including functional loss due to pain experienced during a flare-up, may not exceed the highest schedular rating available under the applicable Diagnostic Code pertaining to range of motion. As such, any additional loss of range of motion would not result in a higher disability rating in this case. The Board has considered whether the Veteran would be entitled to a higher rating under a different Code. The affected muscle group is XI. Moreover, the remaining disability codes for muscle injuries of the foot and leg (Diagnostic Codes 5310 and 5312) each have a maximum disability rating of 30 percent and therefore cannot afford a higher rating. Consequently, a rating higher than 30 percent for right calcaneus fracture with Achilles tendon rupture, status post debridement with flexor hallucis longus tendon transfer with injury to muscle group XI, with muscle atrophy, tarsal tunnel syndrome with skin paresthesias, and loss of motion of the foot and ankle from August 1, 2017 is not warranted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Bynum, 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.