Citation Nr: 21075686 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-56 714 DATE: December 21, 2021 ORDER New and material evidence sufficient to reopen a claim for entitlement to service connection for a right knee disability has been received, and to that extent only, the claim is granted. Entitlement to service connection for a right knee disability is granted. FINDINGS OF FACT 1. A May 2013 rating decision denied a claim for a right knee disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period. 2. For the right knee disability, evidence received since May 2013 is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran's claim of service connection for a right knee disability. 3. The Veteran has a right knee disability that is, as likely as not, causally related to the Veteran's active service. CONCLUSIONS OF LAW 1. The May 2013 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence sufficient to reopen the claim of service connection for a right knee disability has been received since May 2013, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2021). 3. The criteria for service connection for a right knee disability have been met. 38 U.S.C. §§ 1110, 1112, 1113, 1118, 1131, 5107 (2012); 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1967 to March 1990. This matter comes before the Board of Veterans' Appeals (Board) from a February 2015 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. By way of background, the Veteran originally filed a claim for service connection for a right knee disability in February 2009, among other claims, and that claim was eventually denied in a May 2010 rating decision. Less than a year later in January 2011, the Veteran again filed a claim for a right knee disability, and that was denied in a May 2013 rating decision. That decision was not appealed within one year, and thus became final. As such, then, the last final denial for the right knee claim is the May 2013 rating decision. In October 2014, the Veteran filed a claim to reopen the right knee disability, and this is the appeal stream now active before the Board. The Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ) in July 2021; a transcript of that hearing is associated with the claims file. In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 23940 (1995). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2021). In this case, part of the Veteran's service medical records are missing. The Veteran served a 23-year career from 1967 to 1990, but his service records are missing from 1973 to 1986. VA has conducted a search for the missing records but has been unable to find them, and provided a memorandum to the claims file to that effect in November 2009. Under such circumstances, there is a heightened obligation to assist the Veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). With respect to claims to reopen, VA is further required to provide notice of the definition of new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). However, VA is no longer required to provide notice of the element or elements that were found insufficient or the information and evidence necessary to substantiate the insufficient element or elements. See 38 U.S.C. § 5103(a)(1); VAOPGCPREC 6-2014 (Nov. 21, 2014); see also Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). The Veteran in this case has not referred to any other deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (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 [appellant] fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant's failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Petition to Reopen In May 2013, VA denied the original claim of entitlement for service connection for the right knee disability, among others. The claim was originally denied because the evidence did not show a chronic injury or condition. The RO reviewed the Veteran's available but incomplete service treatment records (STRs), VA treatment records, and his statements regarding the disability. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following those decisions. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The Veteran sought to reopen the claim in October 2014. The RO reviewed the Veteran's available service treatment records (STRs), VA treatment records, and his statements regarding his right knee disability. The RO denied the claim in February 2015, and the Veteran was notified on February 25, 2015. The Veteran filed a notice of disagreement (NOD) in April 2015. VA issued a statement of the case (SOC) in October 2017. The Veteran perfected an appeal to the Board in October 2017 and the appeal was certified before the Board in November 2017. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as 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) (2020). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include 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. Additionally, the United States Court of Appeals for the Federal Circuit has 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 claimant's injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). The Board considers the last, final denial to be the May 2013 rating decision for the right knee. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Claim Reopened The evidence of record in May 2013 consisted of some service records, including personnel and medical records, and VA treatment records. The Veteran's service medical records are missing from 1973 to 1986. The evidence of record at that time did not establish a diagnosis of a chronic right knee disability. Since the May 2013 rating decision, the Veteran's file has additional VA and private medical records that have been attached to the claims file. Also, the Veteran provided testimonial evidence during his July 2021 hearing with the undersigned Veterans Law Judge. These VA medical records show continuing treatment for the Veteran's right knee disability through to the present. This new evidence is not cumulative or redundant of the evidence previously of record. The Board is reminded in this regard that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is "low." Shade. And further, that consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. This newly received evidence basically provides a more complete picture as to the nature of the Veteran's right knee disability in question, and under the low threshold standard could reasonably trigger the Secretary's duty to assist. Id. at 118. Therefore, assuming its credibility for the purpose of the threshold question of whether the claim can be reopened, the newly received evidence raises a reasonable possibility of substantiating the Veteran's claim of service connection for a right knee disability. As new and material evidence has been received, reopening of the previously denied claims of entitlement to service connection for a right knee disability is warranted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2021). To that extent only, the claim to reopen for service connection for a right knee disability is granted. Service Connection for a Right Knee Disability Legal Criteria for 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. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease or injury was incurred in service. 38 C.F.R. § 3.303(d). Service connection may also be established for a current disability on the basis of a presumption that certain chronic diseases, to include arthritis, manifesting themselves to a certain degree within a certain time after service must have had their onset in service. 38 U.S.C. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.304, 3.307, 3.309(a). For arthritis, the disease must have manifested to a degree of 10 percent or more within one year of service. 38 C.F.R. § 3.307(a)(3). Service connection can also be established through continuity of symptomatology. Walker v. Shinseki, 708 F.3d 1331 (2013); 38 C.F.R. §§ 3.303(b), 3.309. For chronic diseases shown as such in service or within the applicable presumptive period, subsequent manifestations of the same chronic disease at any later date are service-connected unless attributable to an intercurrent cause. 38 C.F.R. § 3.303(b). For a chronic disease to be considered to have been "shown in service," there must be a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings. Id. When the condition noted in service or within the presumptive period is not a chronic disease, a showing of continuity of symptomatology after discharge is required. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran's lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). After the evidence is assembled, it is the Board's responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2021). In making that decision, the Board must determine the probative weight to be ascribed as among multiple medical opinions, and state the reasons and bases for favoring one opinion over another. See Winsett v. West, 11 Vet. App. 420, 424-25 (1998); see also Evans v. West, 12 Vet. App. 22, 30 (1998), citing Owens v. Brown, 7 Vet. App. 429, 433 (1995). This responsibility is particularly important where medical opinions diverge. The Board is also mindful that it cannot make its own independent medical determinations, and that there must be plausible reasons for favoring one medical opinion over another. See Evans at 31; see also Colvin v. Derwinski, 1 Vet. App. 171 (1991). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that "a veteran need only demonstrate that there is an 'approximate balance of positive and negative evidence'' in order to prevail." To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Evidence and Analysis for Right Knee Disability The Veteran asserts he has a chronic right knee disability dating back to active service, noting he had injured it in 1987, when aboard a U.S. Navy ship in the Persian Gulf, he was involved in an accident involving some of the ship's equipment called a personnel high line involving a transfer between adjacent ships which had come loose, and hit the Veteran, causing him to lose consciousness and injuring his head, his back and his right knee. The Veteran also referenced an earlier injury from 1975 to the same right knee. The service treatment records contain a formal record of the Veteran's right knee injury from the August 1987 accident, but the service records are missing for the earlier accident. He reported to service medical treatment providers who noted a right knee severe sprain that was extremely painful and had substantial edema and bruising at the time of the original injury. The Veteran's right knee continuing symptoms are reported by the service examiner who documented the Veteran's retirement examination in January 1990, noting that symptoms from the original injury have persisted for approximately three years since the original incident. The Veteran himself also noted that right knee injury in his report of medical history. The Veteran provided a medical record from his regular treating private physician, Dr. W.E., from September 2014 and uploaded to the claims file in October 2014. Dr. E. discussed his current diagnosis of the Veteran's right knee with traumatic arthritis, characterized by active, painful range of motion. The right knee was extremely tender to touch, and crepitus of the right knee was noted. Dr. E. commented that the Veteran was a near-term surgical candidate for his right knee. Dr. E. also discussed the etiology of the Veteran's traumatic arthritis of the right knee, noting the 1987 accident in the Navy where a personnel high wire with a Manila chair was suspended between two ships while each were underway, and when the line broke the Veteran was injured in the contact with a supporting block. Dr. E. noted that injury was treated by a medic right away but the Veteran chose not to be airlifted from the ship for further medical treatment at the time. Symptoms of significant pain and swelling were noted at the time, and the Veteran, while still in service, received several injections in the right knee to alleviate symptoms, which were only partially successful at the time. Dr. E. opined that it was more likely than not that the Veteran's current right knee traumatic arthritis with crepitus was due from his in-service injury to his right knee. Dr. E.'s rationale was that the comparison of arthritic changes of the Veteran's two knees was substantially different. While the left knee indicated mild changes due to degenerative arthritis most likely due to age, with no other signs of damage or injury, the right knee traumatic arthritis was substantially more serious in the presence of severe traumatic arthritic changes with bone-on-bone crepitus. The active range of motion for the right knee indicated limitations of motion with severe pain, while the left knee had a greater range of motion in all measurements. The Veteran provided a lay statement with his April 2015 notice of disagreement that his right knee can roll and twist at any time, and that he falls down as a result. There was "lots of crunching and popping" when he rotates his right knee, and the right knee is in "constant 24/7" pain. The Veteran also reported he cannot stand longer than 15-20 minutes on his right knee. The Veteran testified before the undersigned VLJ in July 2021. The Veteran testified under oath as to his active service experience when the original injury occurred in August 1987, and the level of pain and residual soreness, weakness, and swelling since that time into the present day. The Veteran pointed out how his symptoms have continued since service. The Veteran's partner also testified in this hearing, noting that in the 21 years of being with her Veteran, that the significant pain and swelling of the right knee have always been present, with severe limitations on his daily activities, to include just sitting down or other basic lower-body motions and movements. The Board gives substantial probative weight to the Veteran's private physician's Dr. W.E., and his diagnosis and opinion on the right knee. Dr. W.E. regularly treated the Veteran and whose records documented the right knee disability along with a positive and thorough opinion for service connection. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board also gives substantial probative weight to the Veteran's service treatment records describing the 1987 injury and subsequent treatment, and also to the separation examiner who noted the right knee injury as well in January 1990, because this indicates both the presence of a chronic condition and a continuity of symptomatology at the time of service retirement. The Board also finds the lay statements of the Veteran to be highly credible and probative, to include the July 2021 hearing testimony before the undersigned VLJ and the January 2016 and May 2017 statements from the Veteran. Importantly, there is no reason to doubt the credibility of the Veteran's self-reported history of his service right knee condition. The Board notes especially the detailed consistency of the Veteran's statements regarding his right knee complaints and treatment experiences over time. See 38 C.F.R. § 3.159(a)(2) (lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person); see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Smith v. Derwinski, 1 Vet. App. 235, 237-38 (1991) (credibility determinations are within the purview of the Board). See also 38 U.S.C. § 1154(a) (reflecting that due consideration is to be given to the places, types, and circumstances of a claimant's service). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board particularly notes that the Veteran's claim for service connection for the right knee failed originally because the RO evaluators in both March 2013 and February 2015 specifically noted that the Veteran's pain in his right knee, by itself, could not be a disability. The RO in each decision also noted that the Veteran's service records did not support the Veteran's statements of his in-service injuries. At the time of those rating decisions, the existing case law of the time supported that conclusion. Since those original decisions, the Board notes the more recent precedential case of Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), where the Federal Circuit held that pain alone can qualify as a disability for VA purposes if it amounts to a functional impairment of earning capacity. Id. at 1367-68 (emphasis added). The Board certainly acknowledges that the latter April 2018 Saunders decision came out after the February 2015 rating decision on appeal and the October 2017 statement of the case, but the Veteran's consistent statements regarding a continuity of symptomatology of his right knee pain and other symptoms directly reflect in the continuing negative impact on the Veteran's occupation and his activities of daily living. In Saunders, the Federal Circuit noted 38 C.F.R. § 4.10 defines functional impairment as the inability of the body or a part of it "'to function under the ordinary conditions of daily life including employment'" and found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability." Saunders, 886 F.3d at 1363. In other words, "pain alone can serve as a functional impairment and therefore qualify as a disability," even if there is no identified underlying diagnosis. Id. at 1367. Here, VA and private physicians have diagnosed the Veteran's right knee disabilities, and thus the Board considers the precedential holding of Saunders to be pertinent and supportive of this Board decision. Furthermore, the Board notes the extreme symptoms of severe traumatic arthritis and crepitus of the right knee which do substantially cause functional impairment of the Veteran's right knee. The Board also notes that the original denials of the claim for right knee service connection included evaluations without complete service medical records for this Veteran. Under such circumstances, there is a heightened obligation to assist the Veteran in the development of the case, a heightened obligation to explain findings and conclusions, and a heightened duty to consider carefully the benefit of the doubt rule. See Washington v. Nicholson, 19 Vet. App. 362, 369-70 (2005); Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The Board finds evidence of a current disability of a right knee condition, as shown by recent VA and private treatment records as noted earlier in this decision. Thus, the first element of service connection is established. The second requirement is to establish in-service incurrence or aggravation of a disease or injury. Here, the claims file contains documentation of the Veteran's right knee injury and subsequent chronicity of symptoms through the highly reliable and credible lay statements of the Veteran and his private treatment records. For service connection claims, lay or medical evidence can establish an in-service injury or disease or chronicity of symptoms in service. A current disability and nexus to service is generally established by medical evidence. However, the Federal Circuit has held that lay evidence is sufficient to show certain current disabilities. Although medical evidence is generally necessary for a nexus to service, lay evidence can be sufficient to show continuity of symptoms after service, as a foundation for a nexus opinion, or to link chronic in-service symptoms to the same diagnosed current disability, or as a substitute for a nexus. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional). Additionally, the Board notes the guidance of the Federal Circuit with regard to lay evidence and proof of a claim for service connection, that examiners and adjudicators are required to address whether lay statements present sufficient evidence of the etiology of a claimant's condition such that his claim of service connection could be proven without contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336 fn. 1 (Fed. Cir. 2006). The Board also again emphasizes the Federal Circuit's finding of April 2018 that pain, indeed, can be a disability for VA purposes. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). A lay person is competent to report observable symptomatology of an injury or illness. Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007). (CONTINUED ON NEXT PAGE) Here, the Board finds the Veteran's statements as to the continuity of his symptoms in and since service regarding his right knee disability to be highly credible, and thus a continuity of symptoms since service satisfactory establishes the nexus requirement for service connection. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Thus, resolving any doubt in favor of the Veteran, the Board finds that his right knee disability is related to service. As such, service connection for a right knee disability is warranted. 38 U.S.C. § 5107 (2012); 38 C.F.R. § 3.102 (2021); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Setter, 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.