Citation Nr: 21075244 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 18-05 909 DATE: December 17, 2021 ORDER Entitlement to an initial rating in excess of 20 percent for sciatic radiculopathy of the right lower extremity associated with degenerative disc disease of the lumbar spine (right lower extremity radiculopathy) is denied. Entitlement to a rating in excess of 20 percent prior to January 3, 2017 for degenerative disc disease of the lumbar spine (a back disability) is denied. Entitlement to a rating of 40 percent, but no higher, from January 3, 2017 to the present for a back disability is granted. Entitlement to a compensable rating for erectile dysfunction associated with hypertension is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's right lower extremity radiculopathy was not manifested by moderately severe incomplete paralysis of the sciatic nerve. 2. Prior to January 3, 2017, the Veteran's back disability was not manifested by forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; or, IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 3. Beginning January 3, 2017, the Veteran's back disability was manifested by forward flexion of the thoracolumbar spine 30 degrees or less, but was not manifested by unfavorable ankylosis of the entire thoracolumbar spine or by IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 4. Throughout the period on appeal, the Veteran's erectile dysfunction was manifested by loss of erectile power, but not penile deformity. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.120, 4.123, 4.124a, Diagnostic Code 8520. 2. The criteria for entitlement to an evaluation in excess of 20 percent prior to January 3, 2017 for a back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 3. The criteria for entitlement to an evaluation of 40 percent, but no higher, from January 3, 2017 to the present for a back disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5243. 4. The criteria for entitlement to a compensable rating for erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.115b, Diagnostic Codes 7599-7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from April 1985 to April 1989, from July 2009 to June 2010, from October 2010 to September 2013, and from January 2014 to September 2014. This appeal comes to the Board of Veterans' Appeals (Board) from a rating decision dated October 2016 issued by a Department of Veterans Affairs (VA) Regional Office. The Veteran's appeal has previously been before the Board. In December 2018, July 2020 and June 2021, the Board remanded the Veteran's claims to the Agency of Original Jurisdiction (AOJ) for additional development. Increased Ratings A disability rating is determined by applying VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). The Board notes that, 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. 76453 (Nov. 30, 2020). The Board notes, however, that Diagnostic Code 5243 was not amended, and there is no relevant evidence associated with the claims file after February 7, 2021. Thus, the amended criteria do not apply in this case. The appeal period before the Board begins on June 7, 2016, the date VA received the Veteran's claim for increased ratings, plus the one-year look-back period for the back disability and erectile dysfunction. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). Low Back Disability and Right Lower Extremity Radiculopathy At a July 2016 VA examination for back conditions, the Veteran reported that his condition had worsened. He reported flare ups described as constant pain and stiffness. He was also unable to bear weight on his back. He reported functional loss or impairment as instability, loss of range of motion, and an inability to sit, stand, or walk for long periods of time. Forward flexion was to 75 degrees. Extension, right and left lateral flexion and rotation were to 20 degrees. Pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing. There was no evidence of localized tenderness or pain on palpation. The Veteran was able to perform repetitive-use testing with at least three repetitions with additional loss of function or range of motion. This was described in terms of range of motion as forward flexion to 70 degrees, and extension, right and left lateral flexion and rotation to 20 degrees. Pain and lack of endurance caused functional loss and also significantly limited functional ability with repeated use over a period of time. This was described in terms of range of motion as forward flexion to 65 degrees and extension, right and left lateral flexion and rotation to 15 degrees. Pain and lack of endurance caused functional loss. This was described in terms of range of motion as forward flexion to 60 degrees and extension, right and left lateral flexion and rotation to 15 degrees. He did not have localized tenderness, guarding, or muscle spasms. Additional contributing factors included less movement than normal. Muscle strength testing was 5/5, except knee extension which was 4/5, with no muscle atrophy. He had mild constant pain, paresthesias and/or dysesthesias, and numbness in the right lower extremity. The severity of his right extremity radiculopathy was described as mild. There was no ankylosis. He had IVDS but he did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. In a January 2017 letter, a diagnostic consultant wrote that the Veteran had developed low back pain which was now constant in varying degrees and which intensified on standing, sitting, walking, stairs, and changing positions especially in weight bearing. He also suffered from right sciatic radicular pain, paresthesiae, and weakness of the right leg. His right leg gave out on him while ambulating. Stairs were particularly problematic. His low back condition concentrated in the lumbosacral region. On examination, range of motion was flexion to 30 degrees, extension to 5 degrees, right rotation and lateral flexion to 10 degrees, and left rotation and lateral flexion to 15 degrees. There was significant loss of the normal mobility of the L5 segment which was concomitant with markedly hypertonic deep and intermediate musculature at that level. In a February 2017 nursing note, the Veteran reported chronic pain in the back that was constant. He noted that muscle relaxers and pain relievers helped. A March 2018 scan of the back showed there was electrodiagnostic evidence consistent with lumbar radiculopathy affecting the bilateral S1 nerve roots. At a June 2019 VA examination for back conditions, the Veteran reported pain in his lower back, which had worsened gradually over time. The pain was a constant aching sensation and was rated as an eight out of 10. Pain intermittently radiated from the lower back to the right leg. The severity of this pain was a seven out of 10. He also reported constant numbness and intermittent tingling in the right lower leg. He reported functional limitations which included walking for more than three minutes, standing or sitting in one position for more than three minutes, bending, twisting, pushing, pulling, squatting, walking up and down stairs and lifting. He was unable to run. He reported flare-ups about once per week that lasted one day. When he had a flare-up, he had to lie on a flat floor and take pain medication to help the pain. While the examiner was unable to test initial range of motion because the Veteran declined these measurements due to the severity of his pain, the examiner estimated that objective evidence of pain began at 10 degrees for forward flexion, extension, and left lateral flexion, 15 degrees for right lateral flexion, and 20 degrees for right and left lateral rotation. There was evidence of pain with weight bearing. There was no evidence of localized tenderness or pain on palpation. Pain significantly limited functional ability with repeated use over a period of time. This was described in terms of range of motion as forward flexion to 55 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, and right and left lateral rotation to 25 degrees. Pain significantly limited functional ability with flare-ups. This was described in terms of range of motion as forward flexion to 55 degrees, extension to 10 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, and right and left lateral rotation to 25 degrees. He did not have guarding or muscle spasms. Additional contributing factors included disturbance of locomotion. Muscle strength testing was 5/5 with no muscle atrophy. He had moderate intermittent pain in the right lower extremity. He also had mild paresthesias and/or dysesthesias and numbness in the right lower extremity. The severity of the right side radiculopathy was mild and the degree of involvement was mild and incomplete. There was no ankylosis. He had IVDS but no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the last 12 months. In an October 2019 primary care note, the Veteran continued to present with problems in his back and gait. A March 2021 primary care note noted that the Veteran sought care from the emergency department due to a back spasm in February 2021. He wore a back brace and used a cane. 1. Analysis - Right Lower Extremity Radiculopathy The Veteran's right lower extremity radiculopathy is rated as 20 percent disabling under Diagnostic Code 8520. The Veteran contends that he is entitled to an increased rating. Under Diagnostic Code 8520 incomplete paralysis of the sciatic nerve is rated as 20 percent disabling when it is moderate, and 40 percent disabling when it is moderately severe. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The evidence of record preponderates against finding more than moderate impairments of the right lower extremity radiculopathy from June 7, 2016. In this regard, although knee extension strength was decreased during his July 2016 VA examination, it was no less than "4/5" with remaining lower extremity strength normal. Additionally, during the Veteran's June 2019 VA examination, muscle strength testing was 5/5 for all joints tested. No trophic changes or muscle atrophy were noted. Additionally, both the July 2016 and June 2019 VA examiners determined that the Veteran had mild incomplete paralysis in the right lower extremity, the level contemplated by a lower 10 percent rating. Thus, although there is evidence of more than sensory symptoms, overall, those symptoms are of no more than moderate severity. The evidence does not more nearly approximate moderately severe impairments of the sciatic nerve. Thus, entitlement to an evaluation in excess of 20 percent for right lower extremity radiculopathy from June 7, 2016 is denied. The Board has considered whether a staged rating under is warranted, however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating is not warranted. Hart v. Mansfield, supra. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, supra. Accordingly, the Board finds that the preponderance of the evidence is against the claim for an increased initial ratings for his right lower extremity radiculopathy. Therefore, the claim for an increased rating must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Analysis - Back Disability Prior to January 3, 2017 The Veteran generally contends that a rating greater than 20 percent is warranted prior to January 3, 2017. The evidence of record is not supportive of a rating higher than 20 percent rating prior to January 3, 2017 for the Veteran's back disability. 38 C.F.R. § 4.7. This 20 percent rating is effective for orthopedic manifestations of his back disability under Diagnostic Code 5243 under the General Rating Formula for Diseases and Injuries of the Spine. In making this determination, the Board has considered the competent and credible medical and lay evidence of record. Under the General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71A provides the following ratings for degenerative arthritis of the spine with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: A 20 percent rating contemplates forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion (ROM) of the thoracolumbar spine not greater than 120 degrees; or, the combined ROM of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating contemplates forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating contemplates unfavorable ankylosis of the entire thoracolumbar spine. Lastly, a 100 percent rating contemplates unfavorable ankylosis of the entire spine. Additionally, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Lastly, a 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. When an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). In this case, prior to January 3, 2017, the Veteran has not been shown to have forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. That is, even with consideration of pain, functional loss, and repetition times three, limitation of forward flexion has exceeded 30 degrees. At worst, forward flexion was limited to 60 degrees. These range of motion findings are consistent with a 20 percent rating, and do not support a higher rating for his back disability. Additionally, the Veteran did not have ankylosis of the thoracolumbar spine. With regard to functional loss, as discussed above, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. In light of the above evidence, repetitive motion and pain were considered, but the thoracolumbar spine was not additionally limited to forward flexion of the thoracolumbar spine 30 degrees or less. The Board has considered the functional impairments the Veteran experiences described above. The Veteran is competent to report the symptoms of pain and limited function that he experiences, and the Board finds no reason to doubt his credibility when considering functional loss. However, the effects reported are contemplated in the 20 percent rating assigned. The Veteran does have IVDS; however, even considering Diagnostic Code 5243 under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, in order to get a rating in excess of 20 percent, the Veteran must have incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Here, the Veteran had IVDS during the period on appeal, but it did not result in incapacitating episodes. Thus, a higher rating under Diagnostic Code 5243 based on the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. Therefore, an evaluation in excess of 20 percent prior to January 2, 2017 for the Veteran's service-connected degenerative disc disease of the lumbar spine is not warranted, as the Veteran's symptoms are consistent with the assigned 20 percent rating. Here, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court's holdings in Correia and Sharp. See Correia v. McDonald, supra, and Sharp v. Shulkin, supra. In this case, the July 2016 VA examination was conducted prior to Correia and Sharp and provides only partial information as described above. The July 2016 VA examination measured active and passive range of motion and range of motion on repetitive use testing as well as range of motion on weight-bearing and nonweight-bearing; the effect of pain on range of motion is described above. With regards to flare-ups, the Veteran reported experiencing flare-ups in the July 2016 VA examinations. Sharp v. Shulkin, supra. His reports of additional functional loss associated with the flare-ups as described above. Therefore, July 2016 VA examination is adequate for adjudication purposes. In reaching its conclusions, the Board acknowledges the Veteran's belief that his back symptoms are more severe than is reflected by the currently assigned disability ratings. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, supra. Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his reports regarding the severity of his back disability based on limitation of extension, flexion, and rotation. The Board has considered whether further staged rating under Hart, supra, is warranted, however, the Board finds that his symptomatology has been stable throughout each period on appeal. Therefore, assigning further staged ratings is not warranted. Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, supra. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of compensable ratings for the bilateral hips based on limitation of extension; the assignment of ratings in excess of 10 percent for the bilateral hips based on limitation of flexion; and the assignment of compensable ratings for the bilateral hips prior to July 28, 2014, ratings in excess of 10 percent from July 28, 2014 to July 1, 2016, compensable ratings from July 1, 2016 to October 6, 20201, and ratings in excess of 10 percent thereafter for the bilateral hips based on limitation of rotation. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 3. Analysis - Back Disability Beginning January 3, 2017 The evidence shows that the Veteran's symptoms were consistent with a 40 percent rating from January 3, 2017 to the present, because they produced forward flexion of the thoracolumbar spine 30 degrees or less. This 40 percent rating is effective for orthopedic manifestations of his back disability under Diagnostic Code 5243 under the General Rating Formula for Diseases and Injuries of the Spine. However, the Board concludes that the Veteran is not entitled to a disability rating in excess of 40 percent for his back disability from January 3, 2017 to the present. 38 C.F.R. § 4.7. In making this determination, the Board has considered the competent and credible medical and lay evidence of record. As noted above, a 40 percent rating contemplates forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. In this case, the January 2017 diagnostic consultant provided that the Veteran had flexion to 30 degrees. Additionally, while the June 2019 VA examiner was unable to test initial range of motion because the Veteran declined these measurements due to the severity of his pain, the examiner estimated that objective evidence of pain began at 10 degrees for forward flexion. Thus, during this period, the Veteran's back disability was manifested by forward flexion of the thoracolumbar spine to 30 degrees or less and a 40 percent rating is warranted from January 3, 2017 to the present. However, from January 3, 2017 to the present, the Veteran has not been shown to have unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a. That is, even with consideration of pain, functional loss, and repetition times three, the Veteran has not exhibited ankylosis of the thoracolumbar spine. These findings are consistent with a 40 percent rating, but do not support a higher rating for his back disability. With regard to functional loss, as discussed above, the Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca and Mitchell. In light of the above evidence, repetitive motion and pain were considered, but the thoracolumbar spine did not exhibit ankylosis. The Board has considered the functional impairments the Veteran experiences described above. The Veteran is competent to report the symptoms of pain and limited function that he experiences, and the Board finds no reason to doubt his credibility when considering functional loss. However, the effects reported are contemplated in the 40 percent rating assigned. The Veteran does have IVDS, however, even considering Diagnostic Code 5243 based on the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, in order to get a rating in excess of 40 percent, the Veteran must have incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Here, while the Veteran had IVDS during the period on appeal, it has not resulted in incapacitating episodes. Thus, a rating under Diagnostic Code 5243 based on the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes is not warranted. Therefore, an evaluation of 40 percent, but no higher, from January 3, 2017 to the present for the Veteran's service-connected degenerative disc disease of the lumbar spine is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Erectile Dysfunction The Veteran is seeking a compensable rating for erectile dysfunction. The Veteran's erectile dysfunction is assigned a zero percent rating under Diagnostic Codes 7599-7522. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Pursuant to Diagnostic Code 7522, two distinct elements are required for a compensable, 20 percent, disability rating: penile deformity and loss of erectile power. "Deformity" under Diagnostic Code 7522 means an internal or external distortion of the penis. See Williams v. Wilkie, 30 Vet. App. 134 (2018). Here, the Veteran does not assert, and the evidence does not reflect, penile deformity. The Veteran underwent a VA examination in July 2016, where the examiner noted that the Veteran's penis was not examined per his request. The examiner did not note a penis deformity in the diagnoses section. The Veteran underwent another VA examination in September 2021, where the examiner noted that he has a normal penis. There is no medical evidence indicating a penile deformity of any kind, internal or external. Thus, as no penile deformity has been shown by either the lay or medical evidence, a compensable rating for erectile dysfunction under Diagnostic Codes 7599-7522 is not warranted at any time during the period on appeal. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.31, 4.115b, Diagnostic Codes 7599-7522. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim. Accordingly, the benefit-of-the-doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Mariah N. Sim Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Minock 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.