Citation Nr: 21074988 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 14-44 094 DATE: December 16, 2021 ORDER The claim for a higher initial rating for a right hip disability based on impairment of the thigh, of 10 percent disabling prior to January 6, 2021, and 20 percent disabling, but not higher, thereafter is granted. The claim for an initial rating of 10 percent, but not higher, for right hip limitation of flexion from February 8, 2011, to August 17, 2020, is granted. The claim for a rating higher than 10 percent for right hip limitation of flexion from August 18, 2020, is denied. The claim for an initial rating higher than 10 percent for a left hip disability based on impairment of the thigh is denied. The claim for an initial rating of 10 percent, but not higher, for left hip limitation of flexion from February 8, 2011, to August 17, 2020, is granted. The claim for a rating higher than 10 percent for left hip limitation of flexion from August 18, 2020, is denied. The claim for a total disability rating due to individual unemployability resulting from service-connected disability (TDIU) prior to August 29, 2019, is granted. FINDINGS OF FACT 1. The Veteran's right and left hip disabilities do not manifest ankylosis, a flail joint, or impairment of the femur. 2. Prior to January 6, 2021, the Veteran's right hip disability manifests impairment of the thigh with limitation of adduction and an inability to cross the legs. 3. Beginning January 6, 2021, the Veteran's right hip disability manifests impairment of the thigh with limitation of abduction with motion lost beyond 10 degrees. 4. From February 8, 2011, to August 17, 2020, the Veteran's right hip manifests painful noncompensable limitation of flexion of the thigh. 5. Beginning August 18, 2020, the Veteran's right hip manifests limitation of flexion of the thigh to 40 degrees. 6. Throughout the initial claims period, the Veteran's left hip disability manifests impairment of the thigh with limitation of adduction and an inability to cross the legs; abduction is possible beyond 10 degrees. 7. From February 8, 2011, to August 17, 2020, the Veteran's left hip manifests painful noncompensable limitation of flexion of the thigh. 8. Beginning August 18, 2020, the Veteran's left hip manifests limitation of flexion of the thigh to 40 degrees. 9. Prior to August 29, 2019, the Veteran's service-connected disabilities preclude him from performing gainful employment for which his education and occupational experience otherwise qualify him. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 10 percent for a right hip disability with impairment of the thigh prior to January 6, 2021, and a 20 percent rating, but not higher, thereafter are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Codes 5250, 5253, 5254, 5255 (2020 & 2021). 2. The criteria for an initial rating of 10 percent, but not higher, for right hip limitation of flexion from February 8, 2011, to August 17, 2020, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5252 (2020 & 2021). 3. The criteria for a rating higher than 10 percent for right hip limitation of flexion from August 18, 2020, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5252 (2020 & 2021). 4. The criteria for an initial rating higher than 10 percent for a left hip disability with impairment of the thigh are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.71a, Diagnostic Codes 5250, 5253, 5254, 5255 (2020 & 2021). 5. The criteria for an initial rating of 10 percent, but not higher, for left hip limitation of flexion from February 8, 2011, to August 17, 2020, are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5252 (2020 & 2021). 6. The criteria for a rating higher than 10 percent for left hip limitation of flexion from August 18, 2020, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5252 (2020 & 2021). 7. The criteria for an award of TDIU prior to August 29, 2019, are met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1984 to February 1987 and from September 1987 to March 1989 with additional service in the Army Reserves. This case comes before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The procedural history of this appeal is extensive, and the Board finds that a review of the relevant portions will prove helpful. In a May 2013 rating decision, the agency of original jurisdiction (AOJ) granted service connection for mild degenerative changes of the right and left hip, effective February 9, 2011. A 10 percent rating was assigned to each hip based on limitation of extension under Diagnostic Code 5251. In March 2014, the Veteran disagreed with the initial ratings and effective dates for the award of service connection for his hip disabilities with a Notice of Disagreement (NOD). In April 2015, the AOJ proposed to sever service connection for the bilateral hip disabilities. Then, also in April 2015, it issued a statement of the case (SOC), but instead of addressing the Veteran's appeal for increased ratings and earlier effective dates, the SOC adjudicated an issue for "continued entitlement to compensation." Practically, the AOJ adopted its proposal to sever service connection for the bilateral hip disorder in the SOC in addition to the separately issued proposal to sever. In a July 2015 rating decision, the AOJ severed service connection for the hip disabilities, effective October 1, 2015. The Veteran filed a NOD in September 2015, initiating an appeal with respect to the severance of service connection. In April 2016, the Board addressed these issued for the first time. The Board remanded the case for the AOJ to issue a SOC addressing the propriety of the severance of service connection for the hip disabilities, as well as the Veteran's initial ratings and effective date disagreements. In response, the AOJ issued SOCs in June 2017 addressing the six hip-related issues identified by the Board (propriety of severance, effective dates of service connection, and initial ratings). Also in June 2017, the AOJ issued a rating decision granting an earlier effective date of February 8, 2011, for the award of service connection for the hip conditions; the date of severance remained October 1, 2015. In April 2018, the appeal returned to the Board. The Board restored service connection for the bilateral hip disabilities and denied an effective date earlier than February 8, 2011. It also remanded the claims for higher initial ratings to allow for a new and adequate VA examination. The claims returned to the Board and were again remanded in June 2019 and March 2020 for adequate VA examinations. In May 2021, the Board essentially restored 10 percent ratings for limitation of extension of both hips (under Diagnostic Code 5251) and remanded the other claims for initial ratings based on limitation of flexion and adduction (impairment of the thigh) for an addendum opinion from the August 2020 VA examiner. A claim for entitlement to TDIU was also identified by the Board as part and parcel of the pending increased rating claims, and it was also remanded for development. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The claims have now returned to the Board for additional appellate action. In an April 2019 memorandum, the Veteran's representative argued that the June 2018 VA examination is inadequate as the examiner was a physician's assistant and not a doctor with an expertise in orthopedic disorders. As a result, the representative contends that the findings of the June 2018 VA examination have no more weight than a layperson's assertions. The representative's objection appears to be based solely on the examiner's credentials as a physician's assistant as opposed to a physician or orthopedic specialist. To the extent that the representative has challenged the ability of any physician's assistant to provide findings regarding the manifestations of the Veteran's hip disabilities, there is no indication that any greater level of specialized training is required for these types of examinations. "Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions." 38 C.F.R. § 3.159(a)(1). The Veteran's representative has not raised any specific evidence or contention as why physician's assistants are not qualified in education, training, or experience to conduct VA hip examinations. The Board consequently finds that the June 2018 VA examiner was competent to conduct the VA examination relevant to the Veteran's claims and notes that the examination is used to support the awards of higher ratings in this decision, to include the award of TDIU. Increased Rating 1. Entitlement to an initial rating higher than 10 percent for right hip limitation of adduction (impairment of the thigh). 2. Entitlement to an initial compensable rating for right hip limitation of flexion prior to August 18, 2020. 3. Entitlement to a rating higher than 10 percent for right hip limitation of flexion from August 18, 2020. 4. Entitlement to an initial rating higher than 10 percent for left hip limitation of adduction (impairment of the thigh). 5. Entitlement to an initial compensable rating for left hip limitation of flexion prior to August 18, 2020. 6. Entitlement to a rating higher than 10 percent for left hip limitation of flexion from August 18, 2020. As noted above, the procedural history of the service-connected hip disabilities is complicated, and the Board will not recount all the events of this appeal here. In pertinent part, the Veteran disagreed with the initial ratings assigned his right and left hip disabilities in the May 2013 rating decision on appeal. The right and left hips are currently assigned separate disability ratings based on limitation of extension (addressed in the Board's May 2021 decision), limitation of flexion, and impairment of the thigh based on limitation of adduction. These last two ratingslimitation of flexion and impairment of the thighare the claims that are currently before the Board. As a preliminary matter, the Board notes that there is some disagreement in the record regarding whether the Veteran manifests arthritis of the hips. The initial award of service connection in the May 2013 rating decision on appeal was for "mild degenerative changes" of the right and left hips and the disabilities are currently characterized as osteoarthritis. The initial characterization of the hip disability as arthritis was based on the May 2013 VA examiner's diagnosis of degenerative changes. Although the examiner noted that imaging studies of the hip demonstrated "degenerative or traumatic arthritis," the examination report is not accompanied by X-rays that show the presence of arthritis. A note from the RO attached to the examination report states, "where are hip X-rays?" The August 2020 VA examiner also found there was no imaging evidence of arthritis and the only X-rays of record (dating from April 2017 and December 2014) showed normal hips. Furthermore, the Veteran and many of his treating healthcare providers have consistently related his hip complaints to pain and limitation of function associated with his service-connected low back disability and radiculopathy instead of arthritis. Thus, while there is some conflicting information in the record regarding whether the Veteran has arthritis of the hips, it does not affect the Board's decision regarding the appropriate ratings based on limitation of motion of the hips and thighs. The Board will therefore proceed with a decision in this case which has already been delayed and remanded multiple times over the last six years. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. See also DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. The former and current versions of the criteria pertaining to rating the hip are identical. The Veteran contends that higher initial ratings are warranted for his right and left hip disabilities as they are productive of pain and limitation of function. The Board finds that initial 10 percent ratings are appropriate for each hip for limitation of flexion throughout the initial claims period. Additionally, an increased 20 percent rating is warranted for limitation of abduction of the right hip as impairment of the thigh from January 6, 2021. Normal ranges of motion of the hip are for hip flexion from 0 degrees to 125 degrees and hip abduction from 0 degrees to 45 degrees. 38 C.F.R. § 4.71, Plate II. Limitation of motion of the hip or thigh may be rated under Diagnostic Code 5250 (ankylosis of the hip), Diagnostic Code 5251 (limitation of extension), 5252 (limitation of flexion), or Diagnostic Code 5253 (impairment of the thigh). As noted above, the Veteran is in receipt of three ratings for each hip based on limitation of extension, impairment of the thigh, and limitation of flexion. The claims pertaining to limitation of extension were previously decided by the Board and are not part of the current appeal. As an initial matter, the Board notes that the Veteran has never manifested ankylosis of either hip and none of the medical evidence (including X-rays and six VA examination reports) demonstrates the presence of ankylosis. Similarly, there is also no evidence of a flail joint of the hip or impairment of the femur with any nonunion, malunion, or fracture. Rather, the Veteran contends that his pain and limited motion results in functional impairment that most nearly approximates the criteria associated with higher disability evaluations. The Board therefore finds that Diagnostic Codes 5250, 5254, and 5255, pertaining to hip ankylosis, a flail joint, and impairment of the femur are not for application in this case and will now turn to the rating criteria pertaining to limitation of motion. The Veteran is currently in receipt of 10 percent ratings for each hip under Diagnostic Code 5253 for impairment of the thigh and limitation of adduction. These ratings are effective from February 8, 2011the original date of service connection. Under Diagnostic Code 5253, impairment of the thigh may be rated based on limitation of abduction, limitation of adduction, or limitation of rotation. A 10 percent rating will be assigned for limitation of rotation where the individual cannot toe-out more than 15 degrees on the affected leg, or for limitation of adduction where the individual cannot cross the legs. A 20 percent rating will be assigned for limitation of abduction where there is motion lost beyond 10 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5253. The Veteran's current 10 percent ratings under Diagnostic Code 5253 are the maximum ratings based on limitation of rotation and adduction. A higher rating of 20 percent is only possible if abduction is lost beyond 10 degrees. In this case, the Board finds that an increased 20 percent evaluation is warranted for the right hip disability from January 6, 2021, based on limitation of abduction. During the January 2021 VA examination, abduction of the right hip was measured to 10 degrees and no further establishing that abduction was lost beyond 10 degrees. Prior to January 2021, and with respect to the left hip throughout the claims period, abduction was consistently greater than 10 degrees. In fact, abduction was most restricted for the right hip prior to January 2021 at the August 2020 VA examination when it was measured to 20 degrees. Abduction of the left hip was most restricted at the January 2021 VA examination, but it was measured to 15 degrees. Thus, the left hip has not manifested limitation of abduction at any time during the claims period to warrant an increased rating under Diagnostic Code 5253. However, an increased and maximum 20 percent rating is warranted for impairment of the right thigh based on abduction limited to 10 degrees from January 6, 2021. The Board will now turn to the appropriate ratings assigned for limitation of flexion of the hips under Diagnostic Code 5252. The Veteran's hip disabilities based on limitation of flexion are currently rated as noncompensable (0 percent) from June 22, 2018, to August 17, 2020, and 10 percent disabling from August 18, 2020. During the period prior to August 18, 2020, flexion of the hips was most restricted at the May 2013 rating decision when it was measured to 80 degrees on the right and 65 degrees on the left with consideration of the Veteran's reports of pain. This amount of flexion is noncompensable under Diagnostic Code 5252. 38 C.F.R. § 4.71a, Diagnostic Code 5252. With respect to functional factors, the Board notes that the May 2013 VA examiner reported the point at which pain began during range of motion testing and these numbers are considered above. The Veteran refused to perform repetitive testing during the examination, but the Board notes that there was no additional loss of motion following repetitive testing upon VA examinations in June 2018, August 2020, and January 2021. The Veteran also refused range of motion testing at the December 2014 VA examination, but the examiner observed the Veteran sitting and standing without discomfort with his hips at 90 degrees of flexion. In any event, even with consideration of relevant functional factors, it is clear that the Veteran's hip disabilities manifest noncompensable limitation of flexion prior to August 18, 2020. Although the Veteran's hip flexion is noncompensable prior to August 18, 2020, the Board finds that a 10 percent rating is warranted from the original date of service connection (February 8, 2011) for limitation of flexion in accordance with 38 C.F.R. § 4.59. In 38 C.F.R. § 4.59, VA recognized that the intent of the rating schedule to recognize painful motion of a joint as productive of disability. Therefore, actually painful healed injuries are "entitled to at least the minimum compensable rating for the joint." Id. Although the Veteran has consistently denied experiencing a specific injury of the hips, his hip disabilities were service-connected as secondary to a low back injury and manifest painful limited motion of bilateral hips/thighs that is not compensable under the criteria pertaining to limitation of flexion. A separate 10 percent rating is therefore appropriate under 38 C.F.R. § 4.59 for painful limited motion of each hip. This 10 percent evaluation is also warranted from February 8, 2011 the original date of service connectionas the Veteran has demonstrated painful noncompensable limitation of flexion throughout the initial claims period. Regarding the period beginning August 18, 2020, the Veteran's hip disabilities are already rated as 10 percent disabling under Diagnostic Code 5252 for compensable limitation of flexion. Flexion of the thighs was measured to 40 degrees bilaterally at the August 2020 VA examination and these results were the basis for the award of 10 percent evaluations for the bilateral hips under Diagnostic Code 5252 from August 18, 2020. The August 2020 VA examiner found that the examination was conducted during a flare-up of symptoms and the reported values therefore reflect consideration of various functional factors. Flexion was improved by comparison at the January 2021 VA examination when it was measured to 50 degrees on the right and 60 degrees on the left and both examiners found that there was no additional loss of motion following repetitive testing. The Board therefore finds that a rating higher than 10 percent is not warranted for the Veteran's limitation of flexion of either hip from August 18, 2020, even with consideration of functional factors. In sum, the Veteran's bilateral hip disabilities are properly rated during the initial claims period as follows: the right hip is rated as 10 percent disabling for impairment of the thigh under Diagnostic Code 5253 from February 8, 2011, to January 5, 2021, with a 20 percent evaluation assigned under the same diagnostic code during the period beginning January 6, 2021. The right hip is also rated as 10 percent disabling throughout the initial claims period from February 8, 2011, to the present based on limitation of flexion under 38 C.F.R. § 4.59 and later under Diagnostic Code 5252. The left hip is rated as 10 percent disabling for impairment of the thigh under Diagnostic Code 5253 throughout the initial claims period, while a separate 10 percent evaluation is also assigned during the initial claims period for limitation of flexion in accordance with 38 C.F.R. § 4.59 and Diagnostic Code 5252. The Board has considered whether there is any basis for granting higher ratings than those discussed above but has found none. The Board has also considered the statements of the Veteran describing his difficulties and pain with prolonged walking, standing, and sitting, as well as navigating stairs. The type of impairment reported by the Veteran is contemplated by the multiple ratings assigned his hip disabilities, to include pain and limitation of motion of the hips in various directions. In determining the appropriate ratings for the hips, the Board has also considered functional factors such as those reported by the VA examiners, to include impairment associated with repetitive motion and flare-ups of symptoms. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable because the preponderance of the evidence is against the claims for any additional increased ratings. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.21. 8. Entitlement to TDIU prior to August 29, 2019. In its May 2021 remand, the Board found that a claim for TDIU was part and parcel of the initial increased rating claims on appeal. The Veteran contends that TDIU is warranted as he is unable to work fulltime as a truck driver due to his service-connected disabilities. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. For purposes of entitlement to TDIU, disabilities resulting from common etiology are considered as one disability, so, too, are disabilities affecting both upper or lower extremities. 38 C.F.R. § 4.16(a). The Veteran is in receipt of a combined evaluation for compensation of 100 percent (a total schedular rating) from August 29, 2019, onwards (to include consideration of the increased ratings granted earlier in this decision). The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent schedular disability rating means that a veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a veteran to be totally disabled due to a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). The Veteran's award of a total schedular rating is assigned based on the combination of all his service-connected conditions and no single disability is rated as 100 percent disabling from August 29, 2019. The Board is mindful of the Court's decision in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), but as the issue before the Board does not include eligibility for special monthly compensation (SMC) or TDIU based on a single disability, this case is distinguishable from Bradley. Therefore, the claim of entitlement to TDIU is moot as of August 29, 2019, when the total schedular rating took effect. The Veteran's service-connected disabilities include intervertebral disc syndrome and stenosis of the lumbar spine with accompanying radiculopathy of the lower extremities, bilateral knee disabilities, and bilateral hip disabilities. With consideration of the increased ratings granted above and application of the Combined Ratings Table and the bilateral factor, the Veteran meets the criteria for an award of TDIU from February 8, 2011. See 38 C.F.R. §§ 4.26, 4.26. Therefore, the schedular rating requirements for TDIU under 38 C.F.R. § 4.16(a) are met throughout the entire period prior to August 29, 2019. The remaining (and dispositive) question is whether the service-connected disabilities rendered the Veteran incapable of engaging in substantially gainful employment prior to August 19, 2019, when considering his level of education, prior work experience and training. The Veteran was asked to submit a VA Form 21-8940 ("Veteran's Application for Increased Compensation Based on Unemployability") by the RO in August 2021 in response to the Board's May 2021 remand. No response to this request was received. As such, the Board has had to reconstruct details of the Veteran's employment history from other records in the claims file. This evidence establishes that the Veteran worked as a truck and delivery driver since approximately 1992. Details regarding the Veteran's education are not provided, but his work history is clearly limited to truck operation. The evidence establishes that the Veteran has not held substantially gainful employment at any time during the claims period. In February 2011, while receiving treatment at the VA Medical Center (VAMC), he reported that he had been released from his job seven months earlier. In August 2014, he contacted the VAMC homeless call center referral line and reported that he had been unemployed for over two years except for various temporary jobs and was facing homelessness for himself and his daughter. A similar history was reported at the December 2014 VA examination when the Veteran stated that he worked in truck driving and delivery in various temporary jobs since leaving the military. The Board finds that this work is "marginal" in nature and is not considered substantially gainful employment. See 38 C.F.R. § 4.18 and Moore v. Derwinski, 1 Vet. App. 356 (1991) (Defining substantially gainful employment as work which is more than marginal, and which permits the individual to earn a living wage). The Veteran appears to have later found work in a warehousehe stated that he worked as a truck driver and warehouse worker during a July 2019 VA examinationbut lost this job in October 2020. The evidence therefore establishes that the Veteran was unemployed through most of the applicable claims period. The record also establishes that the Veteran's service-connected disabilities resulted in substantial occupational impairment. Although the May 2013 VA examiner found that the Veteran could perform eight hours of sedentary work, the Board notes that the Veteran has consistently stated that his work as truck driver also required non-sedentary activities such as lifting, walking, and climbing stairs. For example, the Veteran stated during an April 2018 VAMC physical therapy consultation that he wanted to return to working as a truck driver, but needed the ability to perform physical tasks, like lifting, on a regular basis. The Board finds that the Veteran's descriptions of the physical abilities needed to work as a truck driver and delivery person are competent and credible. The medical evidence of record dated throughout the claims period also establishes that the Veteran had difficulty with prolonged standing, walking, sitting, and with stairs and ladders due to his multiple orthopedic and neurological service-connected disabilities. (Continued on next page) The Board will resolve any doubt in the Veteran's favor and finds that TDIU is warranted throughout the pendency of the claim based on the Veteran's limited work history and the severity of the impairment associated with his service-connected disabilities. The requirements for establishing entitlement to TDIU are met prior to August 19, 2019, and the claim is granted. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals M. Riley, Attorney for the Board Department of Veterans Affairs 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.