Citation Nr: 21075398 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 16-35 053 DATE: December 20, 2021 ORDER Entitlement to a separate disability rating of 10 percent, but no more, for impairment of the tibia and fibula is granted on and after June 27, 2011, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 10 percent for status post left ankle sprain is denied. REMANDED Service connection for a right ankle disability is remanded. Service connection for bilateral shin splints is remanded. FINDING OF FACT During the period on appeal, the Veteran's status post left ankle sprain manifested as moderate limitation of motion and symptoms analogous to malunion of the tibia and fibula with slight ankle disability, but not marked limitation of motion, ankylosis, malunion of the os calcis or astragalus, or an astragalectomy. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, on and after June 27, 2011, the criteria for a separate rating of 10 percent, but no higher, for impairment of the tibia and fibula have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5262 (2021). 2. The criteria for a disability rating in excess of 10 percent for status post left ankle sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5271 (2021). REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the Air Force from April 2004 to June 2005. The Veteran testified before the undersigned Veterans Law Judge during a December 2018 hearing and a transcript is of record. These matters are on appeal from a January 2013 rating decision. In an April 2019 decision, the Board remanded these issues to afford the Veteran additional VA examinations. The Agency of Original Jurisdiction (AOJ) has done so. In a June 2021 decision, the Board remanded these issues again to afford the Veteran an additional VA examination with regard to the left ankle claim and additional VA medical opinions with regard to the right ankle and shin splint claims. The Veteran was afforded a VA examination of his left ankle in July 2021. The VA examination is adequate with regard to the claim being decided below because it was based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because it describes his left ankle symptoms in detail sufficient to allow the Board to make fully informed determinations. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). There was therefore substantial compliance with the remand directives with regard to the left ankle claim. See Stegall v. West, 11 Vet. App. 268 (1998). The Board will discuss the compliance of the AOJ with its instructions with regard to the right ankle and shin splint claims below. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist with regard to the claim being decided below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Status Post Left Ankle Sprain The Veteran contends that his status post left ankle sprain warrants a higher rating than that currently assigned. It is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, with a noncompensable rating from June 25, 2005 to June 26, 2011 and a 10 percent rating on and after June 27, 2011. VA received the Veteran's claim for an increased rating on June 27, 2011. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2021). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. "Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When entitlement to compensation has already been established and an increased rating is at issue, the relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Id. at 509; see also 38 U.S.C. § 5110(b)(2) (2012); 38 C.F.R. § 3.400(o)(2) (2021). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. 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. Additionally, "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. In this case, at least the minimum compensable rating has been in effect for this disability during the entire appeal period. Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). 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. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that are more favorable to the Veteran will be applied. Under the prior version of 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 warranted for marked limitation of motion. Under the amended version of Diagnostic Code 5271, the ratings are the same, but definitions are added: moderate limitation of motion is defined as less than 15 degrees of dorsiflexion or 30 degrees of plantar flexion and marked limitation of motion is defined as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion. For VA purposes, a normal range of ankle motion is from 45 degrees of plantar flexion to 20 degrees of dorsiflexion. 38 C.F.R. § 4.71, Plate II. While the schedule of ratings prior to the amendment did not provide information as to what manifestations constituted "moderate" or "marked" limitation of ankle motion, the Board considers VA's proposed change to Diagnostic Code 5271, which was published in February 2003. See 68 FR 6998. In the proposed regulation, VA noted that it hired an outside consultant to recommend changes "...to ensure that the schedule uses current medical terminology and unambiguous criteria, and that it reflects medical advances that have occurred since the last review. The consultant convened a panel of non-VA specialists to review the portion of the rating schedule dealing with the musculoskeletal system in order to formulate recommendations." Id. Regarding Diagnostic Code 5271, VA noted that the terms "marked" and "moderate" are subjective and proposed to substitute more objective criteria that was recommended by the consultants. Specifically, it was proposed to assign a 20 percent rating if there was less than 5 degrees passive dorsiflexion or less than 10 degrees passive plantar flexion, and a 10 percent rating if there was less than 15 degrees of passive dorsiflexion or less than 30 degrees passive plantar flexion. Id. at 7018. It was noted that this change would promote consistent evaluations. Id. The Board finds the explanation of the proposed regulation to be persuasive. Significantly, those are the same ranges eventually adopted as definitions with the 2021 amendments. Then, in August 2017, VA again proposed to change Diagnostic Code 5271. See 82 FR 35719. VA noted that the criteria set forth in Diagnostic Code 5271 are "subjective and the terminology is vague, resulting in inconsistent evaluations." VA proposed this time to define "marked" as less than 5 degrees of dorsiflexion or less than 10 degrees of plantar flexion, and "moderate" as less than 15 degrees of dorsiflexion or less than 30 degrees of plantar flexion. Id. at 35723. VA noted that, "[a]s VA currently uses these standards to define marked and moderate, this change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel." Id. The Board finds the explanation of the proposed regulation to be persuasive because again, VA is expressing its intent to codify a policy that was employed to ensure more uniformity among its rating personnel. Additionally, the proposed criteria again used the same ranges eventually adopted as definitions in 2021. For these reasons, the Board finds that the definitions in the amended criteria are a clarification of the vague terminology previously in effect and will apply them under the prior criteria as well. There are additional Diagnostic Codes that apply to ankle disorders. 38 C.F.R. § 4.71a, Diagnostic Code 5270 (2021) pertains to ankylosis of the ankle. 38 C.F.R. § 4.71a, Diagnostic Code 5272 (2021) pertains to ankylosis of the subastragalar or tarsal joint. 38 C.F.R. § 4.71a, Diagnostic Code 5273 (2021) pertains to malunion of the os calcis or astragalus. 38 C.F.R. § 4.71a, Diagnostic Code 5274 (2021) pertains to an astragalectomy. In addition, 38 C.F.R. § 4.71a, Diagnostic Code 5262, although listed as pertaining to knee and leg disorders, refers to ankle disorders. Under the prior version of Diagnostic Code 5262, nonunion of the tibia and fibula with loose motion requiring a brace warrants a 40 percent rating, malunion of the tibia and fibula with marked knee or ankle disability warrants a 30 percent rating, malunion with moderate knee or ankle disability warrants a 20 percent rating, and malunion with slight knee or ankle disability warrants a 10 percent rating. Under the amended version of Diagnostic Code 5262, the provisions regarding nonunion are unchanged, the provisions regarding malunion provide for rating under the relevant Diagnostic Code for ankylosis or limitation of motion, and a section regarding medial tibial stress syndrome (MTSS) or shin splints has been added. The Veteran has separately claimed service connection for bilateral shin splints and that claim is remanded for further development below. The Veteran was afforded a VA examination in September 2012. The Veteran reported increased popping in his left ankle. The Veteran reported flare ups in the form of numbness when doing strenuous exercise. On examination, the range of motion was reported as 20 or more degrees of dorsiflexion to 40 degrees of plantar flexion, with no objective evidence of painful motion. The range of motion was the same on repetition. There were no additional factors contributing to disability in the left ankle. There was no localized tenderness or pain on palpation. Muscle strength was normal. Anterior drawer testing showed bilateral laxity but talar tilt testing showed no laxity. There was no ankylosis. There was no history of stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of the os calcis or astragalus, or an astragalectomy. The Veteran reported regularly using a left ankle brace when doing any type of exercise. The clinician found that the Veteran's left ankle disability would have no impact on his ability to work. During the December 2018 hearing, the Veteran testified that his left ankle symptoms were progressively worsening and that they were aggravated by running, jumping, or other exercise. He also reported popping "just every ten minutes" and continuing to wear a brace. He also reported limited range of motion after strenuous activity but provided no further details regarding this limitation. The Veteran was afforded an additional VA examination in November 2019. The Veteran reported snapping, popping, cracking, resetting of ankles, inflammation, numbness, loss of circulation, tingling, and random loss of balance, but did not specify whether these symptoms applied to the left ankle, the right ankle, or both ankles. He reported that, when numbness and tingling occur, it travels up to the calf resulting in random loss of balance and ankle rolls. He also reported flare ups of moderate to severe severity that were precipitated by activity and lasted until activity decreased. He also reported functional impairment in the form of numbness and tingling as described above. On examination, range of motion was reported as normal with dorsiflexion of 20 degrees and plantar flexion to 45 degrees. There was pain noted on both dorsiflexion and plantar flexion, but it did not cause functional loss. There was no objective evidence of localized tenderness or pain on palpation and there was no objective evidence of crepitus. There was evidence of pain with weight bearing. The range of motion was the same on repetition. The examination took place immediately after repetitive use over time, but the clinician found that there was no significant additional limitation from pain, weakness, fatigability, or incoordination under those circumstances. The examination did not take place during a flare up and the clinician found that there would be significant limitation from pain under those circumstances but specifically found that the range of motion would be the same. There were no additional factors contributing to disability. Muscle strength was normal. There was no muscle atrophy. There was no ankylosis. There was suspicion of ankle instability or dislocation, but anterior drawer and talar tilt tests did not show laxity. There was no history of stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of the os calcis or astragalus, or an astragalectomy. The Veteran did not report using any assistive devices. The clinician found that the Veteran's ankle disabilities would have an impact on his ability to work by causing increased pain when standing for more than two hours. There was objective evidence of pain on passive range of motion testing and on non-weight bearing. A private treatment record from an appointment four days after this examination noted left ankle active range of motion from 10 degrees of dorsiflexion at 0 degrees of knee flexion to 40 degrees of plantar flexion. A January 2020 private treatment record noted left ankle active range of motion from 10 degrees of dorsiflexion at 0 degrees of knee flexion or 12 degrees of dorsiflexion at 90 degrees of knee flexion to 40 degrees of plantar flexion. The Veteran was afforded an additional VA examination in July 2021. The Veteran reported intermittent crepitus in the left ankle with occasional pain. He did not report flare ups. He reported functional impairment in the form of soreness with standing for long periods but did not report a history of instability. On examination, range of motion was reported as normal and passive and active ranges of motion were the same. There was no pain noted on examination. There was no objective evidence of crepitus or localized tenderness or pain on palpation. The range of motion was the same on repetition. The examination did not take place immediately after repetitive use over time or during a flare up and the clinician found that there would be no significant additional limitation from pain, weakness, fatigability, or incoordination under those circumstances. There were no additional factors contributing to disability. There was no muscle atrophy. There was no ankylosis. An anterior drawer test did not show absence of firm end point with asymmetric or excessive motion and a talar tilt test did not show asymmetric or excessive motion. There was no history of stress fractures, Achilles tendonitis, Achilles tendon rupture, malunion of the os calcis or astragalus, or an astragalectomy. The Veteran did not report using any assistive devices. The clinician found that the Veteran's ankle disability would have no impact on his ability to work. The Board finds that, affording the Veteran the benefit of the doubt, his left ankle instability warrants a separate rating of 10 percent on and after June 27, 2011 under Diagnostic Code 5262. The September 2012 VA clinician found laxity on an anterior drawer test, but not on a talar tilt test. During the November 2019 VA examination, the Veteran reported random loss of balance and ankle rolls without specifying which ankle these symptoms affected and the clinician found no laxity on either the anterior drawer or talar tilt test. During the July 2021 VA examination, the clinician also found no laxity on either the anterior drawer or talar tilt test. The Board finds that this is analogous to malunion of the tibia and fibula with slight ankle disability. Although the record contains no evidence of malunion or nonunion of the tibia and fibula, this is not necessary for a rating by analogy. See Stankevich v. Nicholson, 19 Vet. App. 470 (2006) (holding that the law recognizes that disabilities rated under analogous code sections will not show all of the objective criteria of the analogous rating). For these reasons, the Board finds that it is at least as likely as not that the Veteran's left ankle instability has warranted a separate 10 percent rating under the prior criteria since June 27, 2011. The Veteran's left ankle disability is not more accurately described under the prior or amended criteria as analogous to malunion of the tibia and fibula with moderate ankle disability or to nonunion of the tibia and fibula with loose motion requiring a brace. The Veteran's pain and limitation of motion are already compensated under Diagnostic Code 5271, so the only symptom under consideration for this analogous rating is instability. The record contains only one report of instability during the ten years on appeal, during the November 2019 VA examination. Only one of the two tests for left ankle instability in September 2012 found any sign of instability and neither of the tests found instability in the other two VA examinations. Although the Veteran reported wearing a brace while exercising in September 2012 and most of the time in December 2018, it is not clear from the record whether instability was among the symptoms contributing to the desire to use a brace and the Board finds that use that is only occasional is not analogous to nonunion "requiring" the use of a brace. For these reasons, the Board finds that the Veteran's left ankle instability is not more closely analogous to malunion of the tibia and fibula with moderate ankle disability or nonunion of the tibia and fibula. As stated above, the issue of service connection for shin splints has been claimed separately and is being remanded for further development. The preponderance of the evidence described above also shows that the Veteran's status post left ankle sprain does not warrant a rating in excess of 10 percent on and after June 27, 2011. There is no evidence of ankylosis, malunion of the os calcis or astragalus, or an astragalectomy. Under the amended rating criteria, limitation of dorsiflexion must be to 5 degrees and of plantar flexion must be to 10 degrees to constitute marked limitation of motion. As stated above, the prior criteria contain no contrary definition, and the Board finds the reasoning behind proposals to add functionally identical definitions when the prior criteria were in effect to be persuasive. There is nothing in the record to indicate limitation of motion sufficiently severe to be considered as marked under the criteria described above at any point during the period on appeal. The Board has considered the Veteran's lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his left ankle disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Those statements are also credible. However, nothing in those statements is incompatible with the separate 10 percent ratings now in effect. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is no evidence that these factors caused limitation of function equivalent to marked limitation of motion during the period on appeal. Because the Board considered the applicable ratings under every Diagnostic Code pertaining to musculoskeletal disabilities of the ankle, the Board finds that there are no other potentially applicable Diagnostic Codes by which higher ratings can be assigned. REASONS FOR REMAND 1. Service connection for a right ankle disability is remanded. 2. Service connection for bilateral shin splints is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was most recently afforded VA examinations with regard to these claims in July 2021. The clinician's negative opinions with regard to service connection for these claims were based entirely on a lack of symptoms at the time of the examination. As the Board noted in its June 2021 remand instructions with regard to the shin splint claim and as the Veteran's representative noted in an October 2021 statement, the requirement for a current disability is satisfied if there is evidence of the disability at any time since the Veteran's claim of service connection was received, even if the disability is currently in remission or has completely resolved. McClain v. Nicholson, 21 Vet. App. 319 (2008). Although the Board regrets the additional delay in a case that has now been pending since June 2011, a remand is warranted to obtain additional medical opinions. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of his right ankle disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician is advised that, even if there is no diagnosable pathology of the right ankle, they must consider pain to constitute a disability if it causes functional impairment. The clinician is also advised that, for the purposes of this opinion, a disability is "current" if present at any point after June 27, 2011, which is the day VA received the current claim. The clinician must provide opinions as to the following: a. Whether it is as likely as not (a probability of 50 percent or greater) that any current right ankle disability had its origin in service or is related to the Veteran's active service. b. Whether it is as least as likely as not that any current right ankle disability was caused by the Veteran's service-connected left ankle disability. c. Whether it is as least as likely as not that any current right ankle disability was aggravated by the Veteran's service-connected left ankle disability. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. The December 2004 service treatment record noting that the Veteran's right ankle was compensating for his left. b. The January 2005 service treatment record noting the Veteran's report of sharp pain in both ankles. c. The Veteran's report of right ankle symptoms during a May 2006 VA examination. d. The Veteran's report during a July 2006 VA treatment appointment that he felt his right ankle pain was due to compensating for his left ankle injury. e. The September 2012 VA examiner's diagnosis of limited plantar flexion of the right ankle and the Veteran's reports regarding the onset and continuity of his symptoms during that examination. f. The Veteran's testimony during the December 2018 hearing regarding the onset and continuity of his right ankle symptoms. g. The November 2019 VA examiner's diagnosis of a right retrocalcaneal spur and the Veteran's reports regarding the onset and continuity of his symptoms during that examination. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 2. Arrange for an opinion by an appropriate clinician who has not previously examined the Veteran for the purpose of determining the etiology of his bilateral shin splints. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician is advised that, even if there is no diagnosable pathology of the shins, they must consider pain to constitute a disability if it causes functional impairment. The clinician is also advised that, for the purposes of this opinion, a disability is "current" if present at any point after June 27, 2011, which is the day VA received the current claim. The clinician must provide opinions as to the following: a. Whether it is as likely as not (a probability of 50 percent or greater) that any current shin splints had their origin in service or are related to the Veteran's active service. b. Whether it is as least as likely as not that any current shin splints were caused by the Veteran's service-connected left ankle disability. c. Whether it is as least as likely as not that any current shin splints were aggravated by the Veteran's service-connected left ankle disability. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. The December 2004 service treatment record noting the Veteran's report of right calf pain for the past two months. b. The January 2005 service treatment record noting the Veteran's report of sharp pain in his right calf and the diagram in which he indicated pain in both lower legs. c. April 2008 private treatment records noting bilateral mid to distal tibial stress fractures. d. The Veteran's testimony during the December 2018 hearing regarding the onset and continuity of his bilateral shin splints. e. The Veteran's reports of functional impact during the November 2019 VA knee and lower leg examination and the clinician's finding of significant functional limitation due to pain during flare ups. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned or diagnosed in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why this is so. 3. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998). The AOJ is advised that the Board has instructed the clinicians that silence in treatment records cannot serve as the sole basis for a negative finding; any opinion relying on that rationale is inadequate. The AOJ is also advised that the Board has instructed the clinicians that a disability is "current" if present at any point after June 27, 2011; any opinion relying on a lack of symptoms at the time of the most recent examination is also inadequate. 4. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.