Citation Nr: 21074805 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 18-10 479 DATE: December 16, 2021 ORDER New and material evidence having been received, the claim for entitlement to service connection for a right knee condition is reopened. New and material evidence having been received, the claim for entitlement to service connection for an acquired psychiatric disorder, including depression and posttraumatic stress disorder is reopened. New and material evidence having been received, the claim for entitlement to service connection for tinnitus is reopened. New and material evidence having been received, the claim for entitlement to service connection for a low back condition is reopened. Entitlement to service connection for a low back condition is granted. REMANDED Entitlement to service connection for a right knee condition is remanded. Entitlement to service connection for an acquired psychiatric disorder, including depression and posttraumatic stress disorder is remanded. Entitlement to service connection for tinnitus is remanded. FINDINGS OF FACT 1. Evidence received since the August 2012 rating decision is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claims for entitlement to service connection for a right knee condition and entitlement to service connection for tinnitus. 2. Evidence received since the July 2015 rating decision is new and material in that it is not cumulative, was not previously considered by decision makers, and raises a reasonable possibility of substantiating the claims for entitlement to service connection for a low back condition and entitlement to service connection for an acquired psychiatric disorder, including depression and posttraumatic stress disorder. 3. The Veteran's current low back disability is etiologically related to service. CONCLUSIONS OF LAW 1. The evidence received since the August 2012 rating decision is new and material, and the Veteran's claims for service connection for a right knee condition and tinnitus are reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 2. The evidence received since the July 2015 rating decision is new and material, and the Veteran's claims for service connection for a low back condition and an acquired psychiatric disorder, including depression and posttraumatic stress disorder are reopened. 38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156 (a). 3. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1985 to July 1988. These matters are before the Board of Veterans' Appeals (Board) on appeal of October 2016 and May 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was afforded a hearing before the undersigned Veterans Law Judge in August 2021. A transcript of the hearing has been associated with the Veteran's electronic claims file. As an initial matter, the Board notes that the record indicates that the Veteran has been diagnosed with anxiety disorder and depressive disorder, and the Veteran asserts that he has symptoms of posttraumatic stress disorder (PTSD). As such, the issue has been recharacterized as entitlement to service connection for an acquired psychiatric disorder, including depression and posttraumatic stress disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009). New and Material Evidence In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. If a claim of entitlement to service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108; Manio v. Derwinski, 1 Vet. App. 140, 145 (1991). New evidence means existing evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). VA must review all of the evidence submitted since the last final rating decision in order to determine whether the claim may be reopened. See Hickson v. West, 12 Vet. App. 247, 251 (1999). The credibility of the evidence is presumed for the purpose of reopening, unless it is inherently false or untrue or, if it is in the nature of a statement or other assertion, it is beyond the competence of the person making the assertion. Duran v. Brown, 7 Vet. App. 216 (1995); Justus v. Principi, 3 Vet. App. 510 (1992). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, in determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. With respect to the issue of materiality, the newly presented evidence need not be probative of all the elements required to award the service connection claim. In Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998), the Federal Circuit noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a Veteran's injury or disability, even where it would not be enough to convince the Board to grant a claim. The Veteran has claimed entitlement to service connection for a right knee condition, an acquired psychiatric disorder, including depression and PTSD, tinnitus, and a low back condition. Turning to the procedural history in this case, the Veteran's claim for entitlement to service connection for a low back condition was denied in a March 1999 rating decision, in which the RO found no evidence of an in-service incident. The Veteran did not appeal this decision or submit new evidence within a year of this decision, and it became final. The Veteran's claim was again denied in an August 2012 rating decision. The Veteran did not appeal this decision or submit new evidence within a year of this decision, and it became final. The Veteran's claim was subsequently denied again in a February 2015 rating decision. The Veteran requested reconsideration of the claim, and the claim was again denied in a June 2015 rating decision. The Veteran did not appeal this decision or submit new evidence within a year of this decision, and it became final. The Veteran's claim for entitlement to service connection for a right knee condition and tinnitus was denied in an August 2012 rating decision, in which the RO found no evidence of an in-service incident. The Veteran did not appeal this decision or submit new evidence within a year of this decisions, and it became final. The Veteran's claim for entitlement to service connection for depression was denied in an August 2012 rating decision, in which the RO found no evidence of an in-service incident. The Veteran did not appeal this decision or submit new evidence within a year of this decision, and it became final. The Veteran's claim was subsequently denied again in a February 2015 rating decision. The Veteran requested reconsideration of the claim, and the claim was again denied in a June 2015 rating decision. The Veteran did not appeal this decision or submit new evidence within a year of this decision, and it became final. Regarding the issues of a right knee condition and tinnitus, evidence submitted since the August 2012 rating decision includes buddy statements from the Veteran's mother and veterans who served with him; a January 2003 article from The Journal of Bone and Joint Surgery entitled "Association Between Lumbar Lordosis and Extension of the Knee"; a 1998 article entitled "Onset of tone-induced hyperactivity in the dorsal cochlear nucleus; A possible neural correlate of tinnitus with delayed onset after noise exposure"; and an excerpt from a September 2011 article in the Journal of Neuroscience entitled "Tinnitus with a Normal Audiogram: Physiological Evidence for Hidden Hearing Loss and Computational Model." After review of the buddy statements, the Board finds that to the extent they describe the Veteran's claimed in-service injury, they are essentially duplicative of previously considered statements submitted by the Veteran. To the extent that they describe the Veteran's post-service symptoms, these statements do not specifically address a basis of the prior denial of service connection. The June 2003 and June 2011 articles are general in nature and also do not address the basis of the prior denial. See Sacks v. West, 11 Vet. App. 314, 317 (1998). Regarding the issues of a low back condition and an acquired psychiatric disorder, evidence submitted since the June 2015 rating decision includes part of a June 2017 article from Neural Plasticity entitled "The Link between Depression and Chronic Pain: Neural Mechanisms in the Brain"; a May 2011 article from Springer Nature entitled "Prevalence of joint-related pain in the extremities and spine in five groups of top athletes"; lay statements from the Veteran; buddy statements from individuals that served with the Veteran; private and VA treatment records; a nexus statement from the Veteran's private doctor linking his back condition to military service; and a screen print from an article on the VA website discussing health problems associated with vibration exposure. The Veteran's lay statements, buddy statements, and private nexus opinion for the back condition are duplicative of evidence previously submitted and as such are not new evidence. The articles submitted by the Veteran are general in nature and do not specifically address a basis of the prior denial of service connection for a low back condition or an acquired psychiatric disorder. See Sacks, 11 Vet. App. at 317. Thus, the articles are not material. The private and VA treatment records are new in that they were not previously considered by decision makers. However, they do not specifically a basis of the prior denial of service connection. The Veteran was afforded a Board hearing in August 2021. As relevant to the issue of whether new and material evidence has been received to reopen the Veteran's claims for a right knee condition, acquired psychiatric disorder, and low back condition, the Veteran testified that he fell off the side of a ship and onto a barge during service, which resulted in injury to his right knee and low back, and caused his mental health conditions. While the Veteran's statements were previously considered by decision makers, the Veteran's representative drew attention to December 2020 and June 2021 rating decisions in which the Veteran was awarded service connection for a cervical spine injury and a traumatic brain injury, respectively. The Veteran's representative contended that as the RO conceded an in-service event in these decisions, specifically the fall testified to by the Veteran, that the rating decisions are therefore new and material evidence showing an in-service incident. In light of these more recent procedural developments since the last final decisions for the issues of entitlement to service connection for a right knee condition, acquired psychiatric disorder, and low back condition, this new evidence is material because it serves as evidence of an in-service injury or event, which was the basis of the prior denials of service connection for these issues. Specifically, VA now concedes that there is evidence of an in-service incident that resulted in injury to the Veteran. Thus, since new and material evidence has been received, the service connection claim for a right knee condition and acquired psychiatric disorder is reopened. To this extent only, the claim is granted. The service connection claim for a low back condition is also reopened, and the claim is granted as discussed below. Regarding the issue of entitlement to service connection for tinnitus, the Veteran testified at the August 2021 Board hearing that he experiences ringing in the ears which started in service and has worsened over time. The Veteran testified that his MOS was Boatswain's Mate and that he was exposed to noise from helicopters as he spent a large amount of time on the flight deck when he was at sea. The Board recognizes that the Veteran's statements are presumed to be credible for the purpose of reopening the claim. Justus v. Principi, 3 Vet. App. 510, 512 - 513 (1992). The Board also notes that while the 1998 article discussing delayed onset tinnitus after noise exposure appears to conflict with the Veteran's testimony, both the Veteran's testimony and the 1998 article are new in that they were not of record at the time of the August 2012 denial. The evidence is material in that it addresses the element of in-service incurrence, which was a basis of the prior denial. Therefore, this additional evidence, when considered in conjunction with the record as a whole, raises a reasonable possibility of substantiating the Veteran's claim. Thus, since new and material evidence has been received, and the service connection claim for tinnitus is reopened. To this extent only, the claim is granted. Service Connection 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. § 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a link between the claimed in-service disease or injury and the present disability. Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Service connection may be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection may also be granted for listed chronic diseases, such as arthritis, if such were shown as chronic in service; manifested to a compensable degree within a presumptive period (usually one year) after separation from service; or were noted in service with continuity of symptomatology since service. 38 U.S.C. §§ 1112, 1113; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board must assess the credibility and weight of all of the evidence to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Equal weight is not accorded to each piece of evidence contained in the record; not every item of evidence has the same probative value. Low back condition The Veteran asserts that his low back condition developed as a result of an in-service injury, when he fell from the side of a ship and injured his back. See August 2021 Hearing Transcript. The Veteran's service treatment records (STRs) themselves are silent for complaints related to a low back condition during active duty service. The Veteran's separation examination is also silent for any complaints of, diagnosis of, or treatment for a low back condition. Multiple lay statements have been submitted describing the in-service incident. In a statement received in July 2012, CM states the Veteran was charged with painting the ship, and that he was holding the line that lowered the Veteran over the side of the ship when the line ran through his hands and the Veteran fell onto the paint barge below. CM further stated that he witnessed the Veteran suffering from back pain after the incident, and that he had to assist the Veteran in getting out of his rack in the morning due to back pain. In a March 2015 statement, the Veteran's mother, a physical therapy nurse, stated that the Veteran called her the night of the in-service incident. She stated that after he returned from service the Veteran was depressed and had back pain. She also stated that the Veteran self-medicated with alcohol due to back pain and depression and that the Veteran was less active after service. She further stated that the Veteran had trouble sleeping due to pain, and the Veteran was unable to stand or sit for more than 30 minutes, he can no longer play golf, and that the pain has worsened since service. Regarding the clinical evidence of record, in a December 1998 statement, the Veteran's private doctor, Dr. C.R., stated that he removed the Veteran from work in October and November 1998 due to "vertebra subluxation complex and associated low back and radicular pain." The Veteran asserts that he sustained a reinjury of his in-service injury at work and was denied workman's compensation because his back condition was determined to be pre-existing from his military service. See November 1998 statement from Veteran. VA treatment records show that the Veteran has complained of chronic low back pain and he received ongoing chiropractic treatment since at least 2011. The Veteran underwent an MRI of the lumbar spine in October 2011 and an x-ray of the thoracic spine in December 2011 which showed mild compression of T11 and degenerative disk disease. Upon review of the Veteran's reports of low back pain, his history of an in-service fall, and the MRI and x-ray findings, the Veteran's treating VA neurosurgeon opined in a September 2012 statement that "it is more likely than not that the changes seen on the radiologic films and symptoms are due to his accident while in the service." In a January 2015 statement, the Veteran's chiropractor stated that based upon the Veteran's current back problems and his self-reported history of back pain that started from the in-service injury, that a finding that "the accident in 1997 was the start of his present condition, is probably correct." The Board finds that the evidence supports that the Veteran's currently diagnosed back disability is related to service. The Board finds that the September 2012 opinion by the Veteran's VA neurosurgeon is highly probative, as it was provided by a physician who possesses the necessary education, training, or experience to provide competent medical evidence under 38 C.F.R. § 3.159 (a)(1). See Cox v. Nicholson, 20 Vet. App. 563 (2007). The neurosurgeon treated the Veteran and was familiar with his symptoms and the progression of his degenerative low back disability, and considered the Veteran's statements about his in-service injury and subsequent symptoms. Further, there are no negative opinions of record. As such, the claim for service connection for a low back condition is granted. REASONS FOR REMAND 1. Entitlement to service connection for a right knee condition The Veteran asserts that his right knee condition began in service. Specifically, the Veteran asserts that experienced knee problems due to working on his knees on the deck of a ship, participating in physical fitness, having to constantly stand for several hours, and being exposed to severe vibrations of the ship. See August 2011 claim for benefits. In the alternative, the Veteran asserts that his right knee condition is caused or aggravated by his low back condition. See August 2021 Hearing Transcript. The Veteran's private treatment records show that he underwent right knee arthroscopy with excision of a pathologic plica in 2009. VA treatment records show a diagnosis of knee arthralgia and a history of complaints of right knee pain. At the August 2021 Board Hearing, the Veteran testified that he had surgery in 2015 to repair the right knee meniscus. The Veteran also testified that his low back condition affects his gait, which affects his legs and knees. In support of the Veteran's assertion that his right knee condition is related to his low back condition, the Veteran's representative has submitted a January 2003 article from The Journal of Bone and Joint Surgery entitled "Association Between Lumbar Lordosis and Extension of the Knee." VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) establishes that the Veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006). The threshold for finding a link between current disability and service so as to require medical examination is low. Locklear v. Nicholson, 20 Vet. App. 410 (2006); McLendon, 20 Vet. App. at 83. In this case, there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with the in-service event. However, the Veteran has not been afforded a VA examination in conjunction with his claim. Accordingly, remand is required to obtain a VA examination to assess the nature and etiology of the Veteran's right knee condition. McLendon, 20 Vet. App. 79. 2. Entitlement to service connection for an acquired psychiatric disorder, including depression and posttraumatic stress disorder The Veteran asserts that his acquired psychiatric disorder, to include depression and PTSD, is related to his active duty service. Specifically, the Veteran asserts that an in-service incident in which he fell 60 to 80 feet off the side of a ship caused a mental health condition with symptoms of anger, anxiety, sleep problems, depression, difficulty making decisions, and suicidal feelings. See August 2021 Hearing Transcript. The Veteran also asserts that he began experiencing depression during active duty service. See August 2021 claim for benefits. In the alternative, the Veteran asserts that his acquired psychiatric disorder is caused or aggravated by his service-connected disabilities overall. See August 2021 Hearing Transcript. VA treatment records show treatment for depression and anxiety. At an August 2011 VA mental health consultation, the Veteran described the in-service fall and stated that "I saw a lot of things that affected me while I was in the Navy and need to talk about it." The VA psychologist diagnosed the Veteran with major depressive disorder and recurrent and alcohol dependence, in full sustained remission. In support of the Veteran's claim, his representative submitted part of a June 2017 article from Neural Plasticity entitled "The Link between Depression and Chronic Pain: Neural Mechanisms in the Brain." As there is evidence of a current disability, an in-service event, and an indication that the disability may be associated with the in-service event, and Veteran has not been afforded a VA examination in conjunction with his claim, a remand is required to obtain a VA examination to assess the nature and etiology of the Veteran's acquired psychiatric disorder. McLendon, 20 Vet. App. 79. 3. Entitlement to service connection for tinnitus The Veteran asserts that he has tinnitus which started in service and has worsened over time. See August 2021 Hearing Transcript. In the alternative, the Veteran asserts that his tinnitus resulted from in-service noise exposure but had a delayed onset. See January 2017 Correspondence from Veteran's attorney. The Veteran was afforded a VA examination in October 2011. No audiometric testing was performed, but the examiner noted that a recent August 2011 VA examination showed hearing within normal limits. The examiner acknowledged that the Veteran's MOS of Boatswain's Mate has a high probability of acoustic trauma. However, the examiner opined that as the Veteran reported onset of tinnitus after discharge from military service and there were no complaints of tinnitus during service, it is less likely than not that the Veteran's tinnitus is related to his active duty service. In support of the Veteran's assertion that his tinnitus is related to his military service, irrespective of any diagnosed hearing loss, his attorney submitted an excerpt from a September 2011 article in the Journal of Neuroscience entitled "Tinnitus with a Normal Audiogram: Physiological Evidence for Hidden Hearing Loss and Computational Model." As the Veteran's lay statements at the August 2021 Board hearing, and the treatise evidence submitted by his attorney were not considered by the 2011 VA examiner, a new VA examination will be provided to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claim so that he is afforded every possible consideration. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed right knee disability. The claims file must be provided to and reviewed by the examiner. Any indicated tests and studies must be performed. The examiner should opine as to the following: (a.) Whether it is at least as likely as not (50 percent or greater probability) that any right knee disability (or if no such disability is identified, any right knee pain that causes any functional impairment) is etiologically related to the Veteran's military service, to include his MOS as a Boatswain's Mate during which time his duties included working on his knees on the deck of a ship, participating in physical fitness, having to constantly stand for several hours, and being exposed to severe vibrations of the ship? The examiner should review the VA website screen print submitted by the Veteran's attorney on January 22, 2017 discussing health problems associated with vibration exposure. The examiner should indicate whether any pathology/disease process associated with the Veteran's right knee is consistent with the mechanism of injury claimed by the Veteran. (b.) Whether any currently diagnosed right knee disability (or if no such disability is identified, any right knee pain that causes any functional impairment) is caused OR aggravated by the Veteran's service-connected low back disability? The examiner should review the January 2003 article from The Journal of Bone and Joint Surgery entitled "Association Between Lumbar Lordosis and Extension of the Knee" submitted by the Veteran's representative. A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 2. Schedule the Veteran for a PTSD VA examination. The claims file, to include a copy of this remand, must be made available to and reviewed by the examiner, and a note that it was reviewed should be included in the report. All tests and studies deemed necessary should be conducted. The examiner should determine the nature and etiology of any acquired psychiatric condition, including PTSD. (a.) The examiner should identify all acquired psychiatric conditions experienced by the Veteran. (b.) For each identified acquired psychiatric condition, the examiner must opine whether it is at least as likely as not (50 percent probability or greater) related to an in-service injury, event, or disease. (c.) For each identified acquired psychiatric condition, the examiner must opine whether it is caused OR aggravated by the Veteran's service-connected disabilities, to include his low back disability, traumatic brain injury, migraines associated with traumatic brain injury, cervical strain, upper left extremity radiculopathy, or upper right extremity radiculopathy? The examiner should consider the June 2017 article submitted August 20, 2021 entitled "The Link between Depression and Chronic Pain: Neural Mechanisms in the Brain." 3. Schedule the Veteran for a VA examination for his tinnitus. A copy of the Veteran's entire claim file should be provided to the examiner and a note that such was reviewed should be included in the report. The examiner should answer the following question: (a.) Is it at least as likely as not (50 percent probability or greater) that the Veteran's tinnitus is casually or etiologically related to the Veteran's active service? In formulating an opinion, the examiner should specifically consider and address the Veteran's testimony that his tinnitus began during active duty service and has worsened since. The examiner should consider the September 2011 article excerpt submitted on August 20, 2021 entitled "Tinnitus with a Normal Audiogram: Physiological Evidence for Hidden Hearing Loss and Computational Model." The examiner should also specifically consider the Veteran's assertion that his tinnitus had a delayed onset. The examiner should review the 1998 article submitted by the Veteran's attorney on January 22, 2017 entitled "Onset of tone-induced hyperactivity in the dorsal cochlear nucleus; A possible neural correlate of tinnitus with delayed onset after noise exposure." A detailed rationale for the opinion must be provided. If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 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.