Citation Nr: 21075751 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-29 062 DATE: December 21, 2021 ORDER 1. New and material evidence sufficient to reopen the claim for service connection for a right shoulder disability has not been received, and the application to reopen the claim is denied. 2. New and material evidence sufficient to reopen the claim for service connection for a left shoulder disability has not been received, and the application to reopen the claim is denied. 3. New and material evidence sufficient to reopen the claim for service connection for obstructive sleep apnea has not been received, and the application to reopen the claim is denied. FINDINGS OF FACT 1. In a September 2005 rating decision, the Agency of Original Jurisdiction (AOJ) denied service connection for right and left shoulder disabilities because it determined there was not a causal connection or nexus between the right and left shoulder disabilities and the Veteran's active duty. The Veteran was notified of this rating decision by a September 2005 letter, which included his appellate rights. He did not appeal the decision nor was new and material evidence received within one year. Thus, the September 2005 rating decision is final. 2. In a July 2013 rating decision, the AOJ continued to deny the service-connection claims for right and left shoulder disabilities because it found the Veteran did not submit new and material evidence related to an unestablished fact necessary to substantiate the claim. The Veteran was notified of this rating decision by a July 2013 letter, which included his appellate rights. He did not appeal the decision as to these two issues nor was new and material evidence received within one year. Thus, the July 2013 rating decision is final. 3. Evidence received since the July 2013 rating decision does not relate to a previously unestablished fact necessary to substantiate the claims for service connection for right and left shoulder disabilities, and therefore does not raise a reasonable possibility of substantiating the claims. 4. In a July 2010 rating decision, the AOJ denied service connection for obstructive sleep apnea because it determined there was not a causal connection or nexus between the obstructive sleep apnea and the Veteran's active duty. The Veteran was notified of this rating decision by a July 2010 letter, which included his appellate rights. He did not appeal the decision nor was new and material evidence received within one year. Thus, the July 2010 rating decision is final. 5. In a July 2013 rating decision, the AOJ reopened the Veteran's service-connection claim for obstructive sleep apnea because it determined the Veteran submitted new and material evidence. However, the AOJ denied the claim because it determined the disability was not related to the service-connected posttraumatic stress disorder (PTSD). It also found there was no evidence that the disability was incurred in or caused by service. The Veteran was notified of this rating decision by a July 2013 letter, which included his appellate rights. He did not appeal the decision as to this issue nor was new and material evidence received within one year. Thus, the July 2013 rating decision is final. 6. Evidence received since the July 2013 rating decision does not relate to a previously unestablished fact necessary to substantiate the claim for service connection for obstructive sleep apnea, and therefore does not raise a reasonable possibility of substantiating the claim. CONCLUSIONS OF LAW 1. The September 2005 rating decision denying the claims for service connection for right and left shoulder disabilities is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 2. The July 2010 rating decision denying the claim for service connection for obstructive sleep apnea is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 3. The July 2013 rating decision denying reopening the claims for service connection for right and left shoulder disabilities and sleep apnea is final. 38 U.S.C. § 7105(c); 38 C.F.R. § 20.1103. 4. New and material evidence sufficient to reopen the previously denied claims for service connection for right and left shoulder disabilities and obstructive sleep apnea has not been added to the record. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from April 1967 to January 1970. The Veteran testified before the undersigned Veterans Law Judge (VLJ) via videoconference during a June 2021 Board hearing. The undersigned left the Veteran's claims open for 90 days following the Board hearing to allow the Veteran to submit additional evidence in support of his claims. In September 2021, the Veteran submitted a copy of records from the Social Security Administration (SSA). NEW AND MATERIAL EVIDENCE The Veteran is seeking to reopen previously denied claims for service connection for a right shoulder disability, a left shoulder disability, and sleep apnea, to include as secondary to the service-connected PTSD. VA may reopen and review a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a); see Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998). New evidence is defined as existing evidence not previously submitted to agency decisionmakers, while 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. 38 C.F.R. § 3.156(a). 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. Id. 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 (2010). Moreover, in determining whether this low threshold is met, consideration need not be limited to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but also whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering VA's duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510 (1992). The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, regarding the Veteran's claims on appeal. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. 1. - 2. Applications to Reopen Claims for Service Connection for Right and Left Shoulder Disabilities The Veteran contends that his current right and left shoulder disabilities were caused by in-service repetitive lifting of 100-pound rounds into a gun. During his June 2021 Board hearing, the Veteran testified that he first noticed painful symptoms affecting his shoulders in 1968 while he was stationed in Vietnam. He said that he complained of his shoulder injuries during service because of the work that he used to do. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, 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. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010). Disorders diagnosed after discharge may still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). The Veteran first filed claims for service connection for right and left shoulder disabilities in February 2005, which claims were denied in a September 2005 rating decision. The relevant evidence of record at that time consisted of the Veteran's service treatment records, an April 1970 VA examination report, VA treatment records, private medical records, statements from the Veteran, and the application for compensation benefits. The service treatment records show that in August 1969, the Veteran had complained of a dull aching pain from the shoulder blades to the lower back and general weakness. He was diagnosed with viral prodrome. The January 1970 Report of Medical Examination from service discharge shows that clinical evaluation of the upper extremities was normal. The April 1970 VA examination report shows the examiner documented that physical examination of the musculoskeletal system was normal. The private medical records included a November 2003 treatment record that shows the Veteran had sustained left and right shoulder strains in May 2003 while working at Nabisco. The examiner documented the date of injury as "May 15, 2003." Other private medical records support the May 2003 injuries to his shoulders. The VA treatment records show the Veteran complaining of bilateral shoulder injuries, where he underwent surgery for the right shoulder in January 2004 and the left shoulder in July 2004. In an April 2005 statement, the Veteran stated that both of his shoulders had been operated on due to repetitive movement from his job. He said he spent 13 months in Vietnam in the artillery lifting over 100-pound shells by himself; normally, it would take three Marines to load up. The Veteran also stated that over time, it caused his shoulder pain. In the September 2005 rating decision, the AOJ concluded the current bilateral shoulder disability did not have its onset in service. The AOJ noted that the submitted treatment records showed the Veteran was diagnosed with bilateral shoulder rotator cuff tears in 2003 and that they were related to the Veteran's post-service employment. The AOJ concluded that the evidence did not show that a chronic bilateral shoulder disability began in service or was otherwise related to service and denied the Veteran's service-connection claims. The Veteran was notified of the September 2005 rating decision by a September 2005 letter, which included his appeal rights. He did not appeal this decision and he did not submit new and material evidence within one year; thus, the September 2005 rating decision is final as to the evidence of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103. In January 2012, the Veteran submitted a letter from Dr. Russell S. Revilla. Dr. Revilla documented that the Veteran had been a patient of his since February 2008 for right and left shoulder pain, where Dr. Revilla described the functionality of the Veteran's shoulders. Additionally, in a July 2013 submission, the Veteran stated that he had shoulder problems since his release from active duty. He also stated he used to load the 155 Howitzer by himself, which was a job that required three Marines. He also indicated that he had surgery on his right shoulder twice and once on his left shoulder. In a July 2013 rating decision, the AOJ concluded the Veteran did not submit new and material evidence to support the claim for service connection for a bilateral shoulder disability. The AOJ found that the statement from Dr. Revilla did not constitute new and material evidence because it did not relate to an unestablished fact necessary to substantiate the claim and did not raise a reasonable possibility of substantiating the claim. The AOJ also considered additional VA and private treatment records at the time of the July 2013 rating decision that show that the Veteran has been treated for right and left shoulder disabilities. The Veteran also submitted records from SSA, which show he filed a claim for SSA disability benefits for right and left shoulder disabilities and residuals of prostate cancer. The SSA disability application shows that when asked when his illnesses, injuries, or conditions first bothered him, the Veteran documented, "05/01/2003." The Veteran also submitted copies of service treatment records. While the private treatment records and SSA disability records were added to the file since the 2005 rating decision, they confirm a fact that was already of record, which is that the Veteran sustained work-related injuries to his shoulders in May 2003. As noted above, when asked within the SSA disability application when his illnesses, injuries, or conditions first had their onset, the Veteran wrote May 1, 2003, which is when he sustained strains to his shoulders while at work. Thus, this was a fact already of record at the time of the September 2005 rating decision, as documented in the November 2003 private treatment record, which is cumulative evidence. The Veteran was notified of the July 2013 rating decision by a July 2013 letter, which included his appeal rights. Within the July 2013 rating decision, the RO also denied a total disability rating for compensation based upon individual unemployability (TDIU). While the Veteran submitted a notice of disagreement in May 2014, he wrote, "This is to inform you of my disagreement with your evaluation of my claim for unemployability." He wrote he was not employed, that he was incontinent from his prostate problem, and wanted to appeal the decision. Thus, the Board finds as fact that the Veteran appealed only the denial of TDIU within the July 2013 rating decision. When a rating decision addresses multiple determinations, the claimant must identify the specific determinations with which he disagrees. Here, the Veteran made clear he was appealing the denial of TDIU. Thus, the Board finds that the Veteran did not appeal the July 2013 decision as to the denial of reopening the claims for service connection for right and left shoulder disabilities. However, the Board still must consider the provisions of 38 C.F.R. § 3.156(b) to determine if the July 2013 rating decision was prevented from becoming final, as additional evidence was added to the file within the next year, which the Board must review to see if it constituted new and material evidence. Added to the file in August 2013 were pages from the Veteran's SSA disability application. These were duplicate records that had been submitted in December 2012 and July 2013 and had been reviewed at the time of the July 2013 rating decision. Compare VBMS entries with document types, "SSA/SSI Letter," receipt date 12/18/2012 and "Medical Treatment Records Furnished by SSA," receipt date 07/18/2013 with "Medical Treatment Records Furnished by SSA," receipt date 08/14/2013. In January 2014, the Veteran submitted the following documents: (1) an application for compensation for right and left shoulder disabilities; (2) a copy of the June 25, 2010 letter that his wife wrote for him in connection with his claim for service connection for sleep apnea; (3) a copy of a January 2011 letter that he (the Veteran) wrote for his brother regarding sleep apnea; (4) copies of VA treatment records and service treatment records which were duplicative of evidence already in the file; and (5) a copy of the November 2004 sleep study showing a diagnosis of severe obstructive sleep apnea. The Board has reviewed each of these documents, which are either cumulative and/or duplicative of evidence that was already in the file or are not relevant to the claims for service connection for right and left shoulder disabilities. Copies of records that were previously submitted cannot constitute new and material evidence. A claim for compensation benefits is not new and material evidence. There are other records added to the file that are clearly not relevant to the claims for service connection for right and left shoulder disabilities. Thus, none of the evidence received within one year of the July 2013 rating decision is new and material in relation to the claims for service connection for right and left shoulder disabilities. Thus, as the Veteran did not appeal the denial of reopening the claims for service connection for right and left shoulder disabilities and did not submit new and material evidence within one year of the July 2013 rating decision, the July 2013 rating decision is final as to the evidence of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103. The Veteran's January 2014 application to reopen the claims for service connection for right and left shoulder disabilities is the current claim pending. The Board has reviewed the evidence added to the record since the July 2013 rating decision and finds that no new and material evidence in support of the claims for service connection for right and left shoulder disabilities has been added to the record. What was lacking at the time of the July 2013 rating decision was evidence of chronic right and left shoulder disabilities in service and competent evidence of a causal link between the current bilateral shoulder disability and service. At the time of the July 2013 rating decision, the AOJ had specifically acknowledged that the Veteran had been diagnosed with right and left shoulder disabilities and had acknowledged the Veteran's allegations of his bilateral shoulder disability having its onset in service based on the duties he performed during service. Thus, the contentions made during the current appeal were considered at the time of the July 2013 rating decision and thus are cumulative and are not new and material. The Board has already laid out above its findings as to the submission of copies of SSA records, service treatment records, and VA treatment records that were submitted in January 2014that these records are duplicative of evidence that was considered at the time of the July 2013 rating decision. The Veteran submitted other duplicate records, such as a copy of the the July 2011 letter from Dr. Revilla. The Veteran has submitted numerous statements, including the July 2015 notice of disagreement and provided testimony at the June 2021 Board hearing testimony, in which he again contended that his current right and left shoulder disabilities were caused by his service. Specifically, the Veteran asserts that the current bilateral shoulder disabilities were caused by his in-service duties. He contends that he picked up the rounds for the gun, and they weighed approximately 95 pounds. He stated that he would do the work of three Marines. He stated that they would fire repetitively for a long period of time, depending on how long the fire mission was. He stated that in 1968 he complained about his shoulder because of the work that he used to do repetitively. These are the same contentions the Veteran made at the times of the July 2013 rating decision and are cumulative. Furthermore, VA treatment records added to the file since the July 2013 rating decision do not provide evidence of a nexus between the current bilateral shoulder disability and service, and, instead, show the Veteran continuing to report having right and left shoulder disabilities, which confirms a fact that was already of record at the time of the July 2013 rating decision. This does not constitute new and material evidence to reopen the claims. The Veteran also submitted a copy of the August 1969 service treatment record, which shows the Veteran complaining of dull, aching pain from the shoulder blades to the back and being diagnosed with a viral prodrome, which was of record at the times of the September 2005 and July 2013 rating decisions and is therefore duplicative evidence. Since the July 2013 rating decision, there continues to be a lack of competent evidence that the current right and left shoulder disabilities had their onset in service or are otherwise related to service. As the evidence submitted since the July 2013 rating decision is not new and material, the applications to reopen the Veteran's claims for service connection for right and left shoulder disabilities are denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. Application to Reopen Service Connection for Obstructive Sleep Apnea The Veteran contends that his current obstructive sleep apnea is caused by his active duty and/or due to his service-connected PTSD. During the June 2021 Board hearing, the Veteran testified that he first experienced symptoms of obstructive sleep apnea in service, when he snored so loudly that people around him would wake him up when he was stationed in Vietnam. He then stated that he did not know that there was a problem with his snoring until the 1990s, where he woke up because he could not breathe. He said that he thought he was having a heart attack, and his wife drove him to the emergency room. He stated that if it was not for his wife insisting that he go to a VA doctor, he would not have found out it was a severe form of sleep apnea. In addition to direct service connection, which the Board has noted above, service connection may also be granted for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. Id. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). The Veteran first filed a claim for service connection for sleep apnea in May 2010, which was denied in a July 2010 rating decision. The relevant evidence of record at the time consisted of the Veteran's service treatment records, an April 1970 VA examination report, a copy of the Veteran's SSA disability award letter, VA treatment records, private medical records, statements from the Veteran, and the application for compensation benefits. The January 1970 Report of Medical Examination from service discharge shows that clinical evaluation of the nose, sinuses, and mouth and throat were normal. Furthermore, the April 1970 Oral Examination shows the Veteran was found to have a normal palate and tongue and floor of mouth. The April 1970 VA examination report shows the examiner documented that physical examination of the nose, sinuses, mouth, and throat were normal. The VA medical records included a June 2003 treatment record that shows the Veteran first established care with VA. At the initial visit, the Veteran indicated that he had been diagnosed with sleep apnea. In a June 2010 statement, the Veteran stated that his sleep apnea condition was related to his Agent Orange exposure. He also stated that he was submitting a letter from his wife that he snored since they have been married. In a June 2010 statement, the Veteran's wife, M.M., stated that the Veteran has always snored while sleeping. She said at times she would wake him up so he could turn to his side in order to minimize the snoring, which was disturbing to her. She also stated that the Veteran woke up in August 2000 having difficulty breathing. She took him to the hospital thinking he was having a heart attack, but after running tests, they could not find the cause of his breathing difficulty. Then the Veteran was tested for sleep apnea and the results of the sleep study was noted as severe. In the July 2010 rating decision, the AOJ concluded the obstructive sleep apnea did not have its onset in service. The AOJ essentially found that the obstructive sleep apnea was not shown to have its onset in service. The Veteran was notified of the July 2010 rating decision by a July 2010 letter, which included his appeal rights. He did not appeal this decision and he did not submit new and material evidence within one year. Thus, the July 2010 rating decision is final as to the evidence of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103. In December 2011, the Veteran filed an application to reopen the claim. He submitted a letter from his brother, C.H.M., dated in January 2011. C. H. M. documented that the Veteran has snored heavily since he returned from active duty. C. H.M. wrote that he and his brother were in the Marine Corps and served in Vietnam and that he also has been treated for severe sleep apnea. The Veteran also alleged that he believed his sleep apnea is related to the service-connected PTSD. A September 2012 VA examination report shows the Veteran reported he started snoring in Vietnam and continued to snore post-service. He said that he would wake up in the middle of the night short of breath. He told the VA examiner that he had a sleep study in La Jolla, California, and has been on a CPAP machine since 2004. The VA examiner concluded that it was less likely than not that the Veteran's obstructive sleep apnea was proximately due to or the result of the Veteran's service-connected disability. The examiner stated that the medical literature does not support sleep apnea due to PTSD. Additionally, the examiner stated that a Walter Reed study suggests that preexisting undiagnosed sleep apnea before military deployment could be a risk factor for development of PTSD, however, it did not suggest that PTSD is a risk factor for obstructive sleep apnea. The examiner found that the Veteran's service treatment records did not reveal evidence of a sleep disorder while in service. Additionally, the examiner reviewed the Veteran's brother's statement and noted that while snoring can be a sign of sleep apnea, it is not diagnostic of sleep apnea. Furthermore, the examiner stated that not all snorers have sleep apnea. The examiner noted what was documented in the September 2004 sleep study regarding that the Veteran reported that his six brothers and father all snored, but only one brother had sleep apnea. The examiner stated that sleep apnea is a highly prevalent disease, and the Veteran had many risk factors for obstructive sleep apnea, including being male, obese, and having a large neck. In a July 2013 VA Form 21-4138, Statement in Support of Claim, the Veteran wrote he submitted a letter from his wife of 39 years that he has been snoring since they have been married. Additionally, he indicated that he submitted a statement from his brother, C.H.M., about his snoring condition. The Veteran also noted that he was being treated by VA in La Jolla, California, and had been given a sleep apnea machine. In the July 2013 rating decision, the AOJ concluded the Veteran had submitted new and material evidence to reopen the claim for service connection for obstructive sleep apnea. However, the AOJ found that the new evidence continued to show that the Veteran's obstructive sleep apnea was not related to service or a service-connected disability. The AOJ noted that the VA medical opinion found no nexus between the current disability and the service-connected PTSD or that the obstructive sleep apnea was aggravated by the PTSD. The Veteran was notified of the July 2013 rating decision by a July 2013 letter, which included his appeal rights. Instead of appealing the decision, the Veteran submitted statements from his wife, M.M., and a statement that he wrote in support of his brother, C.H.M.'s service connection claim for sleep apnea in January 2014. The statement from M.M. was a duplicate of the one submitted in June 2010. Additionally, the Veteran submitted a statement which stated to the best of his knowledge and belief, his brother, C.H.M., has snored heavily since he returned from combat duty in Vietnam and he also suffered from severe sleep apnea. However, the statement written by the Veteran, while new, was not material to the Veteran's claim, as it pertained to symptoms his brother was exhibiting. The Board has laid out above why the May 2014 notice of disagreement addressed only the claim for a TDIU rating. Thus, the Board also finds that the Veteran did not appeal July 2013 decision in its denial of service connection for obstructive sleep apnea, and the Veteran did not submit new and material evidence within one year of the July 2013 rating decision pertaining to the claim for service connection for obstructive sleep apnea. Thus, the July 2013 rating decision is final as to the evidence of record and is not subject to revision on the same factual basis. See 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 3.156(a), 20.302, 20.1103. The Board has reviewed the evidence added to the record since the July 2013 rating decision and finds that no new and material evidence in support of the claim for service connection for obstructive sleep apnea has been added to the record based on direct and secondary service connection. What was lacking at the time of the July 2013 rating decision was competent evidence of a causal link between the current obstructive sleep apnea and the Veteran's period of active duty or that obstructive sleep apnea was caused or aggravated by a service-connected disability. At the time of the July 2013 rating decision, the AOJ had specifically acknowledged that the Veteran had been diagnosed with obstructive sleep apnea and had acknowledged the Veteran's allegations of his obstructive sleep apnea having its onset in service or that it was caused or aggravated by the service-connected PTSD. Thus, the contentions made during the current appeal were considered at the time of the July 2013 rating decision and thus are cumulative and are not new and material. Since this rating decision, the Veteran has submitted statements, specifically in the June 2021 Board hearing testimony, in which he contended that his current obstructive sleep apnea was caused by his service. The Veteran asserted that while he was stationed in Vietnam, he got from four to six hours of sleep and he would snore terribly and the other soldiers around him would wake him up. The Veteran's testimony is cumulative of evidence that was already considered at the time of the July 2013 rating decision. He had already reported that he snored while in Vietnam. Furthermore, VA treatment records added to the file since the July 2013 rating decision do not provide evidence of a nexus between the current obstructive sleep apnea and service, and, instead, confirm the Veteran's diagnosis of obstructive sleep apnea, which is cumulative evidence. Additionally, a May 2018 VA examination report shows that the Veteran was diagnosed with obstructive sleep apnea. Again, the Board finds this is cumulative evidence. What still has not been submitted is competent evidence of a nexus between the post-service obstructive sleep apnea and service or competent evidence of a nexus between the obstructive sleep apnea and a service-connected disability. Given that the evidence submitted since the July 2013 rating decision is not new and material, the application to reopen the Veteran's claim for service connection for obstructive sleep apnea is denied. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). A. P. SIMPSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Griffin, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.