Citation Nr: 21076429 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 19-06 868 DATE: December 23, 2021 ORDER Entitlement to an earlier effective date than July 24, 2017, for a 30 percent rating for left shoulder internal derangement with degenerative arthritis is denied. Entitlement to an earlier effective date of January 23, 2008, for an award of service connection for right upper extremity radiculopathy is granted. Entitlement to an earlier effective date than August 13, 2010, for an award of service connection for left upper extremity radiculopathy is denied. REMANDED Entitlement to a disability rating greater than 10 percent prior to September 24, 2013, greater than 20 percent prior to July 24, 2017, and greater than 30 percent thereafter, for left shoulder internal derangement with degenerative arthritis is remanded. Entitlement to an initial rating greater than 70 percent prior to July 30, 2018, and greater than 70 percent effective October 1, 2018, for posttraumatic stress disorder (PTSD) with major depressive disorder and alcohol use is remanded. Entitlement to an initial rating greater than 10 percent prior to December 20, 2018, and greater than 20 percent thereafter, for a cervical spine disability is remanded. Entitlement to an initial rating greater than 40 percent prior to December 20, 2018, and greater than 20 percent thereafter, for right upper extremity radiculopathy is remanded. Entitlement to an initial rating greater than 20 percent prior to January 1, 2013, and greater than 30 percent thereafter, for left upper extremity radiculopathy is remanded. Entitlement to an earlier effective date than January 29, 2008 for an award of service connection for left shoulder internal derangement with degenerative arthritis is remanded. Entitlement to an earlier effective date than September 24, 2013 for a 20 percent rating for left shoulder internal derangement with degenerative arthritis is remanded. Entitlement to an earlier effective date than December 20, 2018 for a 20 percent rating for a cervical spine disorder is remanded. Entitlement to an earlier effective date than October 25, 2016 for an award of service connection for PTSD is remanded. Entitlement to an earlier effective date than May 10, 2019 for a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to an earlier effective date than July 30, 2018 for special monthly compensation (SMC) is remanded. Entitlement to SMC prior to July 30, 2018, and effective September 30, 2018, is remanded. FINDINGS OF FACT 1. The record evidence shows that an October 2013 rating decision granted service connection for left shoulder internal derangement with degenerative arthritis. 2. Additional evidence received since the October 2013 rating decision includes a December 2013 VA examination report for service-connected left shoulder internal derangement. 3. The record evidence shows that from July 24, 2017, it was not factually ascertainable that there was an increase in the severity of service-connected left shoulder internal derangement with degenerative arthritis. 4. The record evidence shows that, in a January 2019 rating decision, the RO granted service connection for right upper extremity radiculopathy effective December 20, 2018, which is the date entitlement arose. 5. The record evidence shows that it is factually ascertainable that the Veteran had symptoms of right upper extremity radiculopathy prior to January 23, 2008, the date that his service connection claim was received by VA. 6. The record evidence shows that, in a January 2019 rating decision, the RO granted service connection for left upper extremity radiculopathy effective August 13, 2010, which is the date entitlement arose. 7. The record evidence shows that it is not factually ascertainable that the Veteran had symptoms of left upper extremity radiculopathy prior to August 13, 2010, and there was no formal claim, informal claim, or written intent to file a claim of entitlement to service connection for left upper extremity radiculopathy dated prior to August 13, 2010. CONCLUSIONS OF LAW 1. The October 2013 rating decision is not final with respect to service connection for left shoulder internal derangement with degenerative arthritis. 38 U.S.C. § 7105(c); 38 C.F.R. § 3.156(c). 2. The criteria for an earlier effective date than July 4, 2017 for a 30 percent rating for left shoulder internal derangement with degenerative arthritis have not been met. 38 U.S.C.§§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for an earlier effective date of January 23, 2008, for an award of service connection for right upper extremity radiculopathy have been met. 38 U.S.C.§§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for an earlier effective date than August 13, 2010 for an award of service connection for left upper extremity radiculopathy have not been met. 38 U.S.C.§§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from March 1966 to January 1970. These matters come to the Board of Veterans' Appeals (Board) on appeal from April 2017 and January 2019 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of this appeal currently is with the RO in Huntington, West Virginia. In a January 2021 letter, the Veteran's attorney requested an extension of time until March 2021 to submit additional evidence and argument. The Board granted this Motion for Extension of Time in a February 2021 letter. In March 2021, the Veteran's attorney requested a second extension of time until May 2021 to submit additional evidence and argument. In May 2021, the Veteran's attorney requested a third extension of time until July 2021 to submit additional evidence and argument in support of these appeals. The Veteran's attorney indicated in a July 2021 submission that they had no additional evidence or argument to submit and requested that claims be adjudicated. Earlier Effective Date Claims Earlier Effective Date than July 24, 2017, for a 30 percent rating for Left Shoulder Internal Derangement with Degenerative Arthritis The Veteran generally asserts that an effective date earlier than July 24, 2017 is warranted for the grant of a 30 percent rating for a left shoulder internal derangement with degenerative arthritis. Neither he nor his attorney has presented specific argument in support of this claim. By way of background, the Veteran filed an initial claim for service connection for a left shoulder disorder in August 2004. A February 2006 rating decision denied entitlement to service connection for a left shoulder condition. The Veteran was provided notice of this decision and his appellate rights in a February 2006 letter. In a July 2006 correspondence, the Veteran indicated he disagreed with this denial. The RO issued an October 2007 Statement of the Case (SOC), which informed the Veteran that he must file a formal appeal via a substantive appeal (VA Form 9) within 60 days. The Veteran was provided notice of this decision and his appellate rights in an October 18, 2007, letter but did not timely perfect an appeal to this decision. Therefore, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran submitted a substantive appeal that was received by VA on January 23, 2008, which is 99 days after the issuance of the October 2007 SOC. On January 23, 2008, the Veteran's representative contacted the RO and submitted a VA 646 Statement of Accredited Representative with respect to the claim for entitlement to service connection for a left shoulder disability. A March 3, 2008 letter to the Veteran indicated that the RO was working on his claim for service connection for a left shoulder condition, this claim had been previously denied in a February 2006 rating decision, new and material evidence was required to reopen this claim, and provided an explanation as to what constituted new and material evidence. On March 26, 2008, the Veteran contacted the RO with regard to his left shoulder disorder, indicating he had received two contradicting letters regarding his claim and he wished to disagree with any denial for service connection. The RO again denied the claim for a left shoulder condition in a November 2008 rating decision based on a finding that new and material evidence had not been received. The Veteran was provided notice of this decision and his appellate rights in a November 2008 letter. A notice of disagreement was filed in November 2008 and a December 2008 SOC was issued with regards to the timeliness of a January 23, 2008 substantive appeal. The Veteran filed a substantive appeal as to the timeliness issue in January 2009. A June 2011 Board decision denied the appeal as to the timeliness of the January 23, 2008 substantive appeal and remanded the petition to reopen a claim for service connection for a left shoulder condition to the AOJ for additional development. This June 2011 Board decision was not appealed and it is final. In a November 2008 VA Form 21-4138 Statement in Support of Claim, the Veteran indicated that service treatment records had been associated with the claims file subsequent to the February 2006 rating decision denying his claim and this evidence constituted new and material evidence. The Board notes that some military personnel records, to include Reserves point summaries, were added to the record in June 2008. Additional in-service performance evaluations and documents related to the Veteran being medically disqualified due to cervical spondylosis were added to the record in July 2011. At any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. The regulation further identifies service records related to a claimed in-service event, injury, or disease as relevant service department records. 38 C.F.R. § 3.156(c)(1)(i) (emphasis). As such, new and material evidence is not needed to reopen a previously denied claim when relevant service treatment records and/or any other relevant service department records are received after a prior final denial. Rather, the claim is simply reviewed on a de novo basis. The Board notes that the additional service treatment records received since the February 2006 rating decision were not relevant as they did not pertain to an in-service event, injury or disease. As such, 38 C.F.R. § 3.156(c) is inapplicable to this appeal and the February 2006 rating decision need not be reconsidered. Any argument to the contrary is without merit and the November 2008 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. In an October 2013 rating decision, the RO granted service connection for a left shoulder disorder, and assigned an initial 10 percent rating effective January 29, 2008, and a 20 percent disability rating effective September 24, 2013. The Veteran was provided notice of this decision and his appellate rights but did not appeal the decision. After a review of the claims file, the Board finds that new and material evidence was added to the claims file within 1 year of the October 2013 rating decision. A December 2013 VA examination report was associated with the claims file within a year from the issuance of the notice of the October 2013 rating decision. Consequently, the October 2013 rating decision is not final. Id. In July 2017, the Veteran submitted an intent to file a claim for compensation. In May 2018, he submitted a claim for an increased rating for his service-connected left shoulder disorder. In a January 2019 rating decision, the RO assigned a higher 30 percent rating effective July 24, 2017, for his left shoulder disorder. This appeal followed. Based on the foregoing, the Board finds that the appropriate date of claim for the award of service connection and an initial 10 percent rating for a left shoulder disability is January 29, 2008, as the October 2013 rating decision granting service connection is not final. The Board finds that an earlier effective date than July 24, 2017, for the assignment of the higher 30 percent disability rating for a left shoulder disability is not warranted. In this regard, the Board must determine the date entitlement to arose, to include under the "look-back" provisions of 38 C.F.R. § 3.400(o)(2) and concludes that entitlement to a 30 percent rating did not arise prior to July 24, 2017. In that regard, there is no lay or medical evidence of record received which showed symptoms associated with a higher 30 percent disability rating prior to July 24, 2017. The Board notes that the RO assigned the 30 percent rating based on the results contained within a June 2018 VA examination report. Specifically, the June 2018 VA examination report found the Veteran's left shoulder was manifested by limited range of motion to flexion to 10 degrees, abduction to 10 degrees, and 0 degrees of external and internal rotation each. Previously, in a September 2013 VA examination report, the Veteran had a range of motion to 130 degrees of flexion, 100 degrees of abduction, 70 degrees of internal rotation, and 25 degrees of external rotation. The outpatient treatment records associated with the claims file do not show the Veteran's left shoulder range of motion is worse than shown on examination. Thus, the Board finds that it is not factually ascertainable that the Veteran's left shoulder disorder increased in severity to warrant a 30 percent rating prior to July 24, 2017. He otherwise has not identified or submitted any evidence demonstrating his entitlement to an earlier effective date than July 24, 2017, for a 30 percent rating for his service-connected left shoulder disability. In summary, the Board finds that the criteria for an earlier effective date than July 24, 2017 for a 30 percent rating for a left shoulder disorder have not been met. Earlier Effective Date for an Award of Service Connection for Right Upper Extremity Radiculopathy and Left Upper Extremity Radiculopathy The Veteran asserts that an earlier effective date than December 20, 2018 is warranted for the grants of service connection for right upper extremity and left upper extremity radiculopathy. Specifically, he asserts that he had symptoms of bilateral upper extremity radiculopathy always associated with his cervical spine disorder, and a January 23, 2008 effective date is warranted, the date that service connection was granted for a cervical spine disorder. By way of background, the Veteran submitted a claim for service connection for a cervical injury in August 2004. A February 2006 rating decision denied entitlement to service connection for a cervical spine disorder. The Veteran was provided notice of this decision and his appellate rights in a February 2006 letter. In a July 2006 correspondence, he disagreed with this denial. The RO issued an October 2007 SOC, which informed him that he must file a formal appeal (substantive appeal (VA Form 9)) within 60 days. He was provided notice of this decision and his appellate rights but did not appeal the decision or submit new and material evidence within the allotted time period. Therefore, the decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. The Veteran submitted a VA Form 9 as to the February 2006 rating decision and October 2007 SOC which was received by VA on January 23, 2008. On January 23, 2008, the Veteran's representative contacted the RO and submitted a VA 646 Statement of Accredited Representative with respect to the claim of service connection for a cervical spine disorder, to include right upper extremity radiculopathy. On March 26, 2008, the Veteran contacted the RO with regard to his cervical spine disorder, indicating he had received two contradicting letters regarding his claim and he wished to disagree with any denial for service connection. The RO interpreted his March 2008 correspondence as a petition to reopen the previously denied claim of service connection and again denied the claim in a November 2008 rating decision based on a finding that new and material evidence had not been received. The Veteran was provided notice of this decision and his appellate rights. As noted above, in a November 2008 VA Form 21-4138 Statement in Support of Claim, the Veteran indicated that service treatment records were associated with the claims file subsequent to the February 2006 rating decision denying his claim and this evidence constituted new and material evidence. After reviewing the claims file, the Board notes that only additional military personnel records were associated with the claims file. This evidence was not new or material as the RO held in the November 2008 rating decision. Therefore, the November 2008 rating decision also is final. Id. Then, the RO issued a December 2008 SOC as to the timely receipt of an appeal received on January 23, 2008 to continue an appeal from the July 2006 Notice of Disagreement. The RO found that a substantive appeal was not filed within 60 days from the date that the AOJ mailed the SOC to the Veteran or within the remainder of the 1-year period from the date of the mailing of the notification of the determination being appealed. Accordingly, the RO denied the Veteran's claim and found the February 2006 rating decision was final. In January 2009, the Veteran submitted a substantive appeal (VA Form 9) as to the December 2008 SOC and appealed the issue of whether his January 2008 VA Form 9 was timely. The Board denied this claim in June 2011 and found that a substantive appeal as to the original claim of service connection for a cervical spine disorder was not timely filed. Therefore, the February 2006 decision is final. Id. In its June 2011 decision, the Board recharacterized the issue and remanded the claim as to whether new and material evidence had been received to reopen the service connection claim for a cervical spine disorder to the RO for further adjudication. In an August 2013 Board decision, the petition to reopen the claim was granted and the issue returned to the Board for further adjudication. The Board again remanded the issue of service connection for a cervical spine disorder to the RO for development. In August 2014, the issue of service connection for a cervical spine disorder was returned to the Board for further adjudication. The Board denied the claim based on a finding that the condition was not related etiologically to active service. The Veteran appealed that denial to the Court of Appeals for Veterans Claims (Court). In a March 2016 Memorandum Decision, the Court vacated and remanded the August 2014 Board denial. Subsequently, in a March 2017 decision, the Board granted service connection for a cervical spine disorder. In an April 2017 rating decision, the RO effectuated the March 2017 Board's grant of service connection for a cervical spine disorder and assigned a 10 percent disability rating effective January 23, 2008. With respect to his bilateral upper extremity radiculopathy, the Veteran was provided VA examinations to evaluate the severity of his service-connected cervical spine disorder in December 2018. Based on the December 2018 VA examination, in a January 2019 rating decision, the RO granted service connection for right upper extremity and left upper extremity radiculopathy, and assigned separate 20 percent ratings for each extremity. The RO assigned an effective date of August 13, 2010 for left upper extremity radiculopathy, and an effective date of December 20, 2018 for right upper extremity radiculopathy. With respect to left upper extremity radiculopathy, the RO found that the first diagnosis was shown in VA treatment records on August 13, 2010. An August 2011 VA examination report showed left cervical radiculopathy. With respect to right upper extremity radiculopathy, the RO found that it was diagnosed at a December 2018 VA examination. This appeal followed. As noted previously, the Veteran first submitted a claim of service connection for a cervical spine disorder, to include right upper extremity radiculopathy, on January 23, 2008. The RO granted service connection for right upper extremity and left upper extremity radiculopathy in a January 2019 rating decision. The RO assigned effective dates based on the dates entitlement arose for right upper extremity and left upper extremity radiculopathy. The RO found that right upper extremity radiculopathy was diagnosed at the December 2018 VA examination and left upper extremity radiculopathy was diagnosed in August 2010. According to the Veteran's VA treatment records, the Veteran first was diagnosed with left upper extremity radiculopathy in August 2010. He first reported symptoms of right upper extremity radiculopathy in his January 2008 claim. The Board notes that, in adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences. For example, he is competent to report that he experiences symptoms such as pain or numbness in his arm. See Layno v. Brown, 6 Vet. App. 465 (1994). Resolving any reasonable doubt in the Veteran's favor, the Board finds that it is factually ascertainable that he experienced symptoms of right upper extremity radiculopathy as early as January 23, 2008, prior to the December 2018 date that the RO determined that entitlement arose. The Board also finds that it is not factually ascertainable that he experienced symptoms of left upper extremity radiculopathy prior to August 13, 2010, the date the RO determined that entitlement arose. Accordingly, the Board finds that an effective date of January 23, 2008, for an award of service connection for right upper extremity radiculopathy is warranted. The Board also finds that entitlement to an earlier effective date than August 13, 2010 for an award of service connection for left upper extremity radiculopathy is not warranted. REASONS FOR REMAND 1. Increased rating for a left shoulder disability The Veteran seeks higher ratings for his left shoulder disability. He asserts that he should have a 20 percent rating assigned from July 8, 2019 based upon a July 2019 VA examination report showing shoulder instability, dislocation or labral pathology, with frequent episodes of recurrent dislocation of the scapulohumeral joint, with guarding of all arm movements. He reports that he is entitled a separate extraschedular rating of at least 10 percent for clavicle impairments based on the July 2019 VA examination report. During the period on appeal, the Veteran's left shoulder disability is rated as 10 percent disabling prior to September 29, 2013, 20 percent disabling from September 29, 2013 to July 8, 2019, and 30 percent disabling thereafter under 38 C.F.R. § 4.71a, Diagnostic Code 5201. The Veteran was afforded an examination most recently for his left shoulder disorder in July 2019. Subsequently, in continuing private and VA treatment records, it was indicated that his left shoulder disorder had worsened since his VA examination. In this regard, an August 2019 private treatment record indicates that he reported limited movement of his left shoulder, no use in his left hand, difficulty with bathing and dressing and feeding himself. July 2019 and September 2019 VA treatment records indicate he reported a severe pain exacerbation episodes of two weeks and five days, respectively. He complained of acute exacerbation without any recent injury. He was pending surgery for his left shoulder. Moreover, the Veteran's attorney asserted in May and June 2020 that he has clavicle impairments warranting separate compensable ratings. This attorney indicates that his left shoulder disability may have worsened since his most recent VA examination. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); but see Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (finding "mere passage of time" does not render old examination inadequate). Given the Veteran's contentions, and given the length of time which has elapsed since his most recent VA examination, the Board finds that, on remand, he should be scheduled for an updated VA examination which addresses this matter. 2. Increased rating for PTSD The Veteran was most recently afforded an examination for PTSD in July 2018. Subsequently, in a January 2021 VA treatment record, it was indicated that his PTSD had worsened since his VA examination. In this regard, the January 2021 VA treatment record indicated the Veteran's wife had called the crisis intervention line due to concern over his alcohol abuse and driving under the influence. At his July 2018 VA examination, he acknowledged a history of heavy alcohol abuse but he recently cut down his drinking to approximately 4 drinks a day due to his wife. Thus, the Board finds that, on remand, another examination should be provided to the Veteran which addresses this matter. Id. 3. Increased rating for a cervical spine disability The Board notes that the Veteran's increased rating claim for his cervical spine disability includes entitlement to a temporary total rating pursuant to 38 C.F.R. § 4.29 as part of his original service connection claim. In this regard, the Board notes that the continuing treatment records associated with the claims file indicate he underwent a surgical procedure and/or hospitalization with respect to his cervical spine disorder. Additionally, the Veteran's attorney asserts that he is entitled to a temporary total rating following neck surgery for his period of convalescence. Despite the foregoing, the Board observes that the issue of a temporary total rating was not adjudicated by the RO nor certified for appeal to the Board. Therefore, a remand is required for the AOJ to adjudicate the claim for a temporary total rating for a cervical spine disorder pursuant to 38 C.F.R. § 4.29 on the merits in the first instance. 4. Increased rating for bilateral upper extremity radiculopathy Regarding the issues of entitlement to increased ratings for bilateral upper extremity radiculopathy, the Board notes that these claims are inextricably intertwined with the claims being remanded in this decision. See Henderson v. West, 12 Vet. App. 11, 20 (1998), citing Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that two issues are inextricably intertwined when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Thus, adjudication of the increased rating claims for bilateral upper extremity radiculopathy must be deferred. 5. Earlier effective date claims for the award of service connection and a 20 percent rating for the left shoulder disability As noted above, the Board has found that the October 2013 rating decision granting service connection for left shoulder internal derangement with degenerative arthritis is not final due to a December 2013 VA examination for the Veteran's left shoulder. Thereafter, the Veteran submitted a notice of disagreement and disagreed with the effective date assigned for the award of service connection and the disability rating. The RO has not yet promulgated a statement of the case (SOC) on these claims. Where a claimant files a notice of disagreement and the RO has not issued an SOC, the issue must be remanded to the RO for an SOC. See Manlincon v. West, 12 Vet. App. 238, 240-241 (1999). Thus, the Board finds that, on remand, the AOJ should promulgate an SOC on the claims of entitlement to an earlier effective date than January 29, 2008, for an award of service connection for left shoulder internal derangement with degenerative arthritis and entitlement to an earlier effective date than September 24, 2013 for a 20 percent rating for left shoulder internal derangement with degenerative arthritis. 6. Earlier effective date claims for a 20 percent rating for a cervical spine disability, an award of service connection for PTSD, and a TDIU The Board notes that in January 2020, VA received the Veteran's timely and valid Notice of Disagreement as to an earlier effective date for a 20 percent rating for a cervical spine disorder, an earlier effective date for an award of service connection for PTSD, and an earlier effective date for a TDIU. Unfortunately, a March 2020 SOC does address these claims. Thus, the Board finds that, on remand, the AOJ should promulgate an SOC on these claims. 7. Earlier effective date claim for an award of SMC and entitlement to SMC prior to July 30, 2018, and after September 30, 2018 Regarding the issues of entitlement to an earlier effective date for an award of SMC and entitlement to SMC prior to July 30, 2018 and after September 30, 2018, the Board notes that these claims are inextricably intertwined with other claims being remanded in this decision. See Henderson, 12 Vet. App. at 20. Thus, adjudication of these claims is deferred. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for examination to determine the current nature and severity of his service-connected left shoulder disability. 3. Schedule the Veteran for examination to determine the current nature and severity of his service-connected PTSD. 4. Promulgate a Statement of the Case on the claims of entitlement to an earlier effective date than January 29, 2008, for an award of service connection for left shoulder internal derangement with degenerative arthritis, entitlement to an earlier effective date than September 24, 2013 for a 20 percent rating for left shoulder internal derangement with degenerative arthritis, entitlement to an earlier effective date than December 20, 2018, for a 20 percent rating for a cervical spine disability, entitlement to an earlier effective date than October 25, 2016, for an award of service connection for PTSD, and entitlement to an earlier effective date than May 10, 2019, for a TDIU. These claims should be returned to the Board only if the Veteran perfects a timely appeal. 5. Thereafter, readjudicate the appeal, to include a claim of entitlement to a temporary total disability rating for a cervical spine disorder under 38 C.F.R. § 4.29. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mariah N. Sim, 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.