Citation Nr: 21076907 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 16-58 760A DATE: December 28, 2021 ORDER Entitlement to service connection, to include on a secondary basis, for sleep disturbance is denied. Entitlement to an initial rating in excess of 20 percent disabling for left lower extremity (LLE) radiculopathy is denied. Entitlement to an initial rating in excess of 20 percent disabling for right lower extremity (RLE) radiculopathy is denied. Prior to November 24, 2020, entitlement to an initial compensable rating for allergic rhinitis is denied. Effective November 24, 2020, entitlement to a rating in excess of 10 percent disabling for allergic rhinitis is denied. Entitlement to a rating in excess of 10 percent disabling for plantar ossicle under the interphalangeal (IP) joint of the right big toe with hallux valgus is denied. Entitlement to a rating in excess of 10 percent disabling for plantar ossicle under the IP joint of the left big toe with hallux valgus is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) is granted subject to controlling regulations applicable to the payment of monetary benefits. REMANDED Entitlement to service connection, to include on a secondary basis, for lumbar spine disability is remanded. Entitlement to service connection, to include on a secondary basis, for cervical spine disability is remanded. Entitlement to service connection, to include on a secondary basis, for bilateral upper extremity (BUE) radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran is already service connected for major depressive disorder (MDD) which is rated, in part, based on symptoms of chronic sleep impairment. He does not have a separate sleep disorder. 2. Throughout the period on appeal, the Veteran's LLE peripheral neuropathy was manifested by symptoms more nearly approximating moderate incomplete paralysis of the sciatic nerve. 3. Throughout the period on appeal, the Veteran's RLE peripheral neuropathy was manifested by symptoms more nearly approximating moderate incomplete paralysis of the sciatic nerve. 4. Prior to November 24, 2020, the service-connected allergic rhinitis was not manifested by nasal polyps, greater than 50 percent nasal obstruction on both sides without polyps, or complete obstruction on one side. 5. Effective November 24, 2020, the service-connected allergic rhinitis was manifested greater than 50 percent nasal obstruction on both sides. The condition was not manifested by nasal polyps. 6. Throughout the period on appeal, the service-connected plantar ossicle under the IP joint of the right big toe with hallux valgus was not manifested by weak foot, claw foot, Morton's disease, hallux rigidus, hammer toe or malunion or nonunion of tarsal or metatarsal bones. 7. Throughout the period on appeal, the service-connected plantar ossicle under the IP joint of the left big toe with hallux valgus was not manifested by weak foot, claw foot, Morton's disease, hallux rigidus, hammer toe or malunion or nonunion of tarsal or metatarsal bones. 8. The Veteran is service connected for the following disabilities: bilateral pes planus with plantar fasciitis rated 50 percent disabling effective June 10, 2015; major depressive disorder rated 50 percent disabling effective September 26, 2016; sinusitis rated 30 percent disabling effective April 9, 2018; LLE radiculopathy rated 20 percent disabling effective June 10, 2015; RLE radiculopathy rated 20 percent disabling effective April 9, 2018; left hip limitation of flexion rated 10 percent disability effective June 10, 2015; right hip limitation of flexion rated 10 percent disability effective June 10, 2015; right big toe condition with hallux valgus rated noncompensable prior to June 10, 2015, and 10 percent disabling thereafter; left big toe condition with hallux valgus rated noncompensable prior to June 10, 2015, and 10 percent disabling thereafter; left ankle sprain rated 10 percent disabling effective September 26, 2016; allergic rhinitis rated noncompensable prior to November 24, 2020, and 10 percent disabling thereafter; right hip limitation of extension and impairment of thigh rated noncompensable; left hip limitation of extension and impairment of thigh rated noncompensable; and left foot surgical scar rated noncompensable. 9. He is unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep disturbance have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for an initial rating in excess of 20 percent disabling for LLE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.124a, Diagnostic Code (DC) 8520. 3. The criteria for an initial rating in excess of 20 percent disabling for RLE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.124a, DC 8520. 4. Prior to November 24, 2020, the criteria for an initial compensable rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.97, DC 6522. 5. Effective November 24, 2020, the criteria for a rating in excess of 10 percent disabling for allergic rhinitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.97, DC 6522. 6. Throughout the period on appeal, entitlement to a rating in excess of 10 percent disabling for plantar ossicle under the IP joint of the right big toe with hallux valgus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.72, DCs 5276-5284. 7. Throughout the period on appeal, entitlement to a rating in excess of 10 percent disabling for plantar ossicle under the IP joint of the left big toe with hallux valgus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.72, DCs 5276-5284. 8. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1994 to July 1997, and from February 2003 to August 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from September 2015 and August 2018 rating decisions by a Department of Veterans Affairs Regional Office (RO). In October 2019, the Veteran testified at a Board videoconference hearing before the undersigned. A copy of the transcript of that hearing has been associated with the claims file. In June 2020, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain Social Security Administration (SSA) records. The claims were also remanded to obtain VA examinations. The Board notes that SSA records and the requested VA examinations have been associated with the claims file. Accordingly, with regard to the issues decided below, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). During the pendency of the appeal, a December 2020 rating decision granted service connection for bilateral pes planus. A March 2021 rating decision granted service connection for bilateral hallux valgus, sinusitis and left ankle sprain. Additionally, another March 2021 rating decision granted service connection for bilateral hip condition. Therefore, as the AOJ granted the benefits sought on appeal, those issues are no longer before the Board. Lastly, the above mentioned December 2020 rating decision granted an increased 10 percent rating for allergic rhinitis effective November 24, 2020. As that rating is not the maximum allowable throughout the period on appeal, that issue remains on appeal. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish entitlement to service connection, there must be (1) evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) a causal connection between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). To prevail on the issue of entitlement to secondary service connection, there must be: (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). 1. Sleep Disturbance The Veteran seeks entitlement to service connection for sleep disturbance. Specifically, the Veteran asserts that he has a sleep disturbance condition that is etiologically related to his Gulf War service. Alternatively, he asserts that he has a sleep disturbance condition secondary to service-connected conditions causing chronic pain. See April 2017 Claim. The evidence of record includes service treatment records (STRs) showing the Veteran denied having any frequent trouble sleeping during his July 1997 separation examination. He denied frequent trouble sleeping again in June 2002 during his Navy Reserve Retention examination. He did not report any symptoms related to sleep disturbance during his June 2003 post-deployment health assessment. Post-service records include a June 2005 VA medical record showing the Veteran reported sleeping only 3 to 4 hours before he was woken up by an aching leg, and that he was only able to go back to sleep after taking pain medication. A December 2008 VA medical record noted that pain affected his sleep. In September 2010, he reported that his biggest concern was his inability to sleep and work effectively with left lower extremity pain, numbness and tingling. He complained of pain and numbness down his left leg when he slept on his side in February 2011. A neurological evaluation noted he was positive for sleep difficulty due to pain. See VA Medical Records Received December 2020. A July 2015 VA medical record shows the Veteran reported that his current medication was not working with his insomnia. He was started on a different medication. See VA Medical Records Received March 2021. Private medical records show he reported symptoms of muscle aches, joint pain (including pain radiating in his left leg and back), and sleep disturbances and insomnia in April 2016. He was assessed with unspecified insomnia and prescribed sleep medication. See SSA Medical Records Received August 2020. At an October 2019 Board hearing, the Veteran testified that he could not sleep on his back or on either side due to pain, and that the pain and distress caused sleeplessness. With regard to his psychiatric disorder, he testified that he had comorbid symptoms of poorly controlled pain and sleep problems. In a December 2019 Brief, the representative noted evidence in support of a claim for sleep disturbance, including medical records noting pain that affected the Veteran's ability to sleep, and psychiatric treatment records noting depressive symptoms due to poorly controlled pain and symptoms of disturbed sleep. After a review of the evidence of record, the Board finds that entitlement to service connection for sleep disturbance is not warranted. In this regard, the Board notes that an October 2020 rating decision granted service connection for MDD, which was granted on the basis that the condition was secondary to his service-connected disabilities causing pain. The rating decision also notes that a 50 percent rating was assigned, in part, based on symptoms including chronic sleep impairment. Apart from symptoms for which he is already in receipt of benefits, he has not been diagnosed with a separate sleep disorder, such as sleep apnea. While the Board does recognize that a private medical record noted a diagnosis for insomnia, that diagnosis was based on the Veteran's lay statements which included complaints of joint pain. Importantly, throughout the period on appeal, both the Veteran and his representative have consistently asserted that his sleep disturbance is secondary to his joint pain, and have related sleep disturbance to his psychiatric symptoms. Therefore, as the Veteran's complaints of sleep disturbance are already contemplated by his service-connected psychiatric disorder, and in consideration that there is no separate sleep disability capable of service connection, the Board finds that service connection for a separate sleep condition is not warranted. As the preponderance of the evidence is against the claim, the claim is denied. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990). Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 2. 3. Bilateral Lower Extremity (BLE) Radiculopathy The Veteran filed a service rating claim for LLE radiculopathy in June 2015. He also filed a service connection claim for RLE radiculopathy in April 2018. Those claims were granted in an August 2018 rating decision which assigned 20 percent ratings effective April 9, 2018. A prior June 2020 Board decision granted an earlier effective date of June 22, 2015 for LLE radiculopathy, and denied an earlier effective date for RLE radiculopathy. A December 2020 rating decision assigned June 10, 2015 as the effective date for the LLE radiculopathy, the date of an intent to file a claim. The Veteran has appealed the initial ratings. The evidence of record includes a May 2015 VA medical record showing the Veteran had an EMG study revealing nerve root involvement related to his lumbar spine condition. He reported that pain radiated across his hips and down his left leg. He also reported left leg weakness and that he had fallen that morning. He was observed with a slow unsteady gait. See VA Medical Records Received August 2018. The Veteran underwent a VA lumbar spine examination in September 2015. The examiner noted no radicular pain or any other signs or symptoms due to radiculopathy. In this regard, he was unable to perform reflex, sensory or a straight leg raising test due to lumbar spine pain. He also underwent a VA peripheral nerve examination in May 2018. The examiner noted a diagnosis for bilateral sciatica. He reported that pain and numbness were aggravated by prolonged sitting, that he could not walk any distance, and that he used a brace and walker as assistive devices. Symptoms included mild BLE constant and intermittent pain, moderate BLE paresthesias and/or dysesthesias and moderate BLE numbness. Muscle strength testing revealed active movement against some resistance for bilateral knee extension, ankle plantar flexion, and ankle dorsiflexion. No muscle atrophy was found. A reflex examination revealed a hyperactive with clonus bilateral knee and ankle. A sensation test revealed decreased sensation for the left upper anterior thigh, decreased sensation for the bilateral thigh/knee, decreased sensation for the bilateral lower leg/ankle, and decreased sensation for the bilateral foot/toes. The sciatic nerve group was found affected and manifested by bilateral moderate incomplete paralysis. Another VA lumbar spine examination was obtained in November 2020. The examiner noted a diagnosis for BLE sciatic radiculopathy. A reflex examination was normal for the bilateral knee, and revealed a hypoactive bilateral ankle. Sensory resting was normal for the bilateral upper anterior thigh and thigh/knee, and decreased for the bilateral lower leg/ankle and foot/toes. A straight leg raising test was positive bilaterally. The BLE was not manifested by muscle atrophy. Radiculopathy symptoms included moderate RLE intermittent pain and severe LLE intermittent pain, moderate BLE paresthesias and/or dysesthesias, and moderate BLE numbness. The examiner determined that the BLE radiculopathy was moderate in severity. The Veteran's BLE peripheral neuropathy is rated at 20 percent disabling pursuant to 38 C.F.R. § 4.124a, DC 8520, which governs the sciatic nerve group. Under DC 8520, disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe incomplete paralysis. Id. A 60 percent rating also requires marked muscular atrophy. A disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or lost. Id. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Nevertheless, there are a few special rules as well. The maximum rating for neuritis characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain which is at times excruciating is equal to that for severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating for neuritis not characterized by such organic changes is equal to that for moderately severe incomplete paralysis when the involved nerve is the sciatic nerve. Id. Neuralgia, characterized by dull and intermittent pain, is rated as injury of the involved nerve just like neuritis. 38 C.F.R. § 4.124. The maximum rating is equal to that for moderate incomplete paralysis. Id. Other nerves of the lower extremities include the musculocutaneous (superficial peroneal), anterior tibial (deep peroneal), internal popliteal (tibial), posterior tibial, internal saphenous, obturator, external cutaneous, and ilio-inguinal nerves. Paralysis, neuritis, and neuralgia thereof is addressed by DCs 8521 through 8530, 8621 through 8630, and 8721 through 8730. As set forth below, the evidence shows that the Veteran's sciatic nerves are affected and use of DC 8520 for sciatic nerve is most appropriate. After a review of the evidence or record, the Board finds that entitlement to ratings in excess of 20 percent disabling for either the RLE or LLE radiculopathy is not warranted. In this regard, the Board notes that throughout the period on appeal, the Veteran's symptoms have consistently been found moderate in severity. This is supported by findings of mild constant and intermittent pain, moderate paresthesias and/or dysesthesias and moderate numbness during the May 2018 peripheral nerve examination, and symptoms of moderate RLE intermittent pain and moderate BLE paresthesias and/or dysesthesias and numbness during the November 2020 VA examination. While the Board does recognize that the November 2020 VA examination revealed severe LLE intermittent pain, importantly his BLE was not manifested by constant pain, indicating an improvement in his symptoms at that time as compared to the prior May 2018 VA examination. The Board further notes that at no time during the periods on appeal have the BLE radiculopathy been manifested by muscle atrophy. Accordingly, the Board finds that ratings in excess of 20 percent disabling are not warranted under DC 8520. The Board does recognize the Veteran's October 2016 notice of disagreement (NOD) in which he asserted that his prior VA examinations were not conducted by qualified examiners. In this regard, the Veteran stated that the examinations were conducted by doctors that were not experts, and by registered nurse practitioners. The Board finds the Veteran's assertions without merit. In this regard, he does not identify which VA examination was inadequate. Instead, he appears to be applying a blanket assertion to all VA examinations contained in the claims file at that time. Additionally, as it pertains to the BLE increased rating claims, as noted above, the September 2015 VA examination did not include any diagnostic testing as such testing could not be conducted due to the Veteran's inability to perform such tests. As such, even if the Veteran was referring to the September 2015 VA examination, that examination was not relied upon by the Board. Therefore, with regard to the current issues on appeal, any assertion challenging the competency of the September 2015 VA examination is moot. With regard to VA examinations conducted after the October 2016 NOD, importantly, neither the Veteran nor his representative has specifically challenged the qualifications of those examiners. In this regard, a specific challenge is required to rebut the presumption of competence and warrant further discussion. See Francway v. Wilkie, 930 F.3d 1377, 1381 (Fed. Cir. 2019). Therefore, the Board finds that the preponderance of the evidence of record is against initial ratings in excess of 20 percent disabling for LLE and RLE radiculopathy. The claims are denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.124a; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 4. - 5. Allergic Rhinitis The Veteran filed a service connection claim for allergic rhinitis in April 2018. That claim was granted in an August 2018 rating decision and assigned a noncompensable rating. He has appealed his initial rating. As noted above, a December 2020 rating decision granted a staged 10 percent rating effective November 24, 2020. The evidence of record includes a May 2018 VA examination. The examiner noted a diagnosis for allergic rhinitis. The Veteran reported symptoms of watery, itchy eyes with pressure behind his eyes. He also reported drainage, post-nasal drip, and that he felt air rushing in and out of his ears after taking deep breaths. Current treatment included daily Flonase and Benadryl. The rhinitis was not manifested by greater than 50 percent obstruction of the nasal passage on either side, permanent hypertrophy of the nasal turbinates, nasal polyps or any granulomatous condition. A February 2018 MRI study was noted to reveal mild mucosal thickening of the inferior right maxillary sinus. At an October 2019 Board hearing, the Veteran reported symptoms of swelling making it hard for him to breathe, itchiness in his mouth, and pain in his eye area upon awakening. Another VA examination was obtained on November 24, 2020. The Veteran reported frequent episodes of sinus pain and pressure, sinus drainage, sinus headaches, itchy watery eyes, nasal congestion with post-nasal drainage, and seasonal flare-ups. He treated his rhinitis condition with Fluticasone nasal spray, Allegra and Claritin as needed, and Amoxicillin or Augmentin during sinusitis flare-ups. With regard to rhinitis, the examiner noted greater than 50 percent obstruction of the nasal passage on both sides. The rhinitis was not manifested by complete obstruction, permanent hypertrophy, nasal polyps or granulomatous conditions. Service-connected allergic rhinitis is rated pursuant to 38 C.F.R. § 4.97, DC 6522, which pertains to allergic or vasomotor rhinitis. Under DC 6522, allergic or vasomotor rhinitis without polyps but with greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side warrants a 10 percent rating. Allergic or vasomotor rhinitis with polyps results in a maximum 30 percent rating. Turning to the period on appeal prior to November 24, 2020, the Board finds that an initial compensable rating is not warranted. In this regard, during this period on appeal, allergic rhinitis was not manifested by greater than 50 percent obstruction of the nasal passage on either side. With regard to both periods on appeal, allergic rhinitis has not been manifested by polyps. As such, a rating in excess of 10 percent disabling is not warranted at any point during the periods on appeal. The medical findings, as provided in the examination reports, directly address the criteria under which the disability is rated. Based on those reports, the Board finds that the preponderance of the evidence is against the assignment of higher ratings during both periods on appeal. The claims are denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.124a; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 6. - 7. Plantar Ossicle Under the IP Joint of the Bilateral Big Toe with Hallux Valgus The Veteran filed his increased claim in June 2015. During the period on appeal, the evidence of record includes an August 2015 VA foot examination noting diagnoses for bilateral plantar ossicles. The Veteran reported experiencing pain in both toes, but he denied receiving treatment. He also denied any flare-ups or functional loss. His bilateral foot was not found manifested by Morton's neuroma, metatarsalgia, hallux valgus, hallux rigidus or other foot injuries. Current pain was attributed to a recent injury caused by dropping a weight on his left foot. The examiner did note that while no additional limitation of motion after repetitive motion testing was not demonstrated, that the Veteran could potentially have further limitation in ROM, and potentially have an increase in the amount of pain and further decrease in functional capacity, but that such parameters could not be estimated and/or expressed as additional loss in degrees without resorting to mere speculation. In this regard, the examiner stated that such metrics could obviously not be obtained, measured or objectively quantified while the Veteran was outside of the clinical arena. Pain, weakness, fatigability or incoordination were additionally not fount to significantly limit functional ability when the feet were used repeatedly over a period of time. The Veteran was noted to use a walker as a regular assistive device due to his lumbar spine disability. An August 2015 VA medical record shows the Veteran reported that he had less than 10 percent ROM in his left big toe, and that he had an extra bone in each toe that needed to be removed. He also reported being unable to put any pressure on his left foot because his arch had fallen, which was confirmed by an X-ray study. See VA Medical Records Received August 2018. An April 2019 private medical record noted complaints of painful lesions to both big toes with symptoms of tingling and burning at times. The Veteran also reported difficulty with shoes and a painful left ankle. A physical examination revealed left ankle and foot instability. A brace was recommended for bilateral foot and ankle stability, and to assist with use of a walker. See Private Medical Records Received December 2019. Another VA foot examination was obtained in June 2019. The examiner noted diagnoses for bilateral big toe plantar ossicle under the IP joint and status post excision of left toe lesion. He reported severe pain and losing sensation in both toes, and that in April 2019, he underwent left foot surgery. He currently reported a slow healing left foot wound and aching. He denied any flare-ups. He did report functional loss due to an inability to walk on his left foot due to his recent surgery. Bilateral foot pain was noted which contributed to functional loss including pain on movement, pain on weight-bearing, pain on non-weight-bearing, and disturbance of locomotion and interference with standing. The examiner noted that there was no other functional loss when the foot was used repeatedly over a period of time. The bilateral foot was not manifested by Morton's neuroma, metatarsalgia, hammer toe, hallux valgus, hallux rigidus or pes cavus. However, only the right foot was able to be examined due to a bandaged left foot. A December 2019 VA medical record shows the Veteran reported that his left great toe had frozen and that he no longer had movement in it. See VA Medical Records Received March 2021. During a November 2020 VA foot examination, the examiner noted diagnoses for bilateral pes planus, bilateral hallux valgus, bilateral plantar fasciitis, bilateral plantar ossicle under the big toe IP joint, and status post left great toe bone spur excision. The examiner found that the bilateral hallux valgus and plantar fasciitis were separate conditions most likely related to bilateral pes planus. The Veteran reported chronic bilateral foot pain, loss of bilateral great toe ROM, and frequent swelling of the right great toe. He also reported flare-ups and functional loss including difficulty with prolonged walking or standing. Hallux valgus was found mild to moderate in severity. The examiner further noted bilateral foot injuries or other foot conditions moderately severe. With regard to his status post left foot surgery, currently, he experienced residual symptoms of pain, swelling and increased pain with weight bearing. The Veteran used orthotic inserts and a walker as regular assistive devices. Throughout the period on appeal, the Veteran's bilateral big toe conditions have been rated 10 percent disabling pursuant to 38 C.F.R. § 4.72, DC 5280. This diagnostic code pertains to unilateral hallux valgus. The Board notes that DC 5280 provides for a single 10 percent rating following a surgical resection of the metatarsal head, or for severe symptoms, if such symptoms are equivalent to amputation of the great toe. Accordingly, the highest rating available under this diagnostic code is 10 percent. The Board has considered ratings the bilateral big toe conditions under other diagnostic codes. However, throughout the period on appeal, the bilateral foot has not been manifested by weak foot (DC 5277), claw foot (DC 5278), Morton's disease (DC 5279), hallux rigidus (DC 5281), hammer toe (DC 5282) or malunion or nonunion of tarsal or metatarsal bones (DC 5283). Accordingly, those ratings are not applicable. The Board has further considered combining the service-connected foot conditions and rating them pursuant to DC 5284 which pertains to other foot injuries. However, this would not provide the Veteran with a more beneficial outcome as his bilateral pes planus with plantar fasciitis has separately been rated 50 percent disabling throughout the period on appeal, and the highest rating available under DC 5284 is 30 percent. Additionally, the Board finds that separately rating the service-connected bilateral pes planus with plantar fasciitis, currently rated under DC 5276, and the bilateral big toe conditions under DC 5284 would violate the rule against pyramiding benefits. In this regard, as noted in the November 2020 VA examination, the examiner found that the bilateral hallux valgus was related to the bilateral pes planus. The regulations preclude the assignment of separate ratings for the same manifestations under different diagnoses. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions; in this case, pain effecting the bilateral foot. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). Accordingly, the Board finds that the bilateral toe condition has been properly rated pursuant to DC 5280. Based on the above, the Board finds that the preponderance of the evidence of record is against ratings in excess of 10 percent disabling for the service-connected plantar ossicle under the IP joint of the bilateral big toe with hallux valgus. The claims are denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.124a; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 8. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). During the pendency of the appeal, the Veteran has been service connected for the following disabilities: bilateral pes planus with plantar fasciitis rated 50 percent disabling effective June 10, 2015; major depressive disorder rated 50 percent disabling effective September 26, 2016; sinusitis rated 30 percent disabling effective April 9, 2018; LLE radiculopathy rated 20 percent disabling effective June 10, 2015; RLE radiculopathy rated 20 percent disabling effective April 9, 2018; left hip limitation of flexion rated 10 percent disability effective June 10, 2015; right hip limitation of flexion rated 10 percent disability effective June 10, 2015; right big toe condition with hallux valgus rated noncompensable prior to June 10, 2015, and 10 percent disabling thereafter; left big toe condition with hallux valgus rated noncompensable prior to June 10, 2015, and 10 percent disabling thereafter; left ankle sprain rated 10 percent disabling effective September 26, 2016; allergic rhinitis rated noncompensable prior to November 24, 2020, and 10 percent disabling thereafter; right hip limitation of extension and impairment of thigh rated noncompensable; left hip limitation of extension and impairment of thigh rated noncompensable; and left foot surgical scar rated noncompensable. The Board notes the Veteran has met the schedular rating criteria as of June 10, 2015. The evidence of record includes a May 2015 VA medical record showing the Veteran reported pain that radiated across his hips and down his left leg. He also reported left leg weakness that that he had fallen that morning. He was observed with a slow unsteady gait. See VA Medical Records Received August 2018. In May 2016, a VA mental health record noted that the Veteran's depression, sleep problems and chronic pain could cause problems with memory and attention, and that any cognitive testing would not likely produce useful results until those issues were better managed. See VA Medical Records Received March 2021. An August 2016 private treatment record shows the Veteran was treated for anger and aggression. He reported a desire to hurt people at VA, including feeling compelled to hit staff or punch his doctors. He also reported suicidal ideation. A September 2016 treatment record also shows reports of passive suicidal ideation, that the Veteran had to restrain himself from hitting someone at VA, and that he often had thoughts of revenge aimed at those he identified as mistreating him. See Social Security Administration Records Received August 2020. A February 2018 VA medical record noted complaints of left ankle, left foot and back pain. The Veteran's gait was found impaired. See VA Medical Records Received March 2021. A May 2018 VA peripheral nerve examination found that the BLE radiculopathy affected the Veteran's ability to work in jobs requiring prolonged standing, walking or lifting heavy objects, but would not preclude sedentary employment. The Veteran complained of instability in his ankle and foot and continued pain in October 2018. Weakness was found in his gait and in transferring. See VA Medical Records Received March 2021. An April 2019 private medical record noted complaints of painful lesions to both big toes with symptoms of tingling and burning at times. The Veteran also reported difficulty with shoes and a painful left ankle. A physical examination revealed left ankle and foot instability and that the Veteran had ambulated with a walker since 2015. A brace was recommended for bilateral foot/ankle stability, and to assist with use of the walker. See Private Medical Records Received December 2019. Another VA foot examination, obtained in June 2019, concluded that the bilateral foot conditions impacted the Veteran's ability to work due to an inability to ambulate. At an October 2019 Board hearing, the Veteran testified that his service-connected foot, ankle and BLE radiculopathy disabilities limited his ability to walk. He also reported having fallen resulting in being issued a walker. On a normal day, he reported using a TENS unit and lying down, or sitting up in bed. He occasionally was able to get to his living room where he would sit on cushions. He further testified that he lost his career because he could no longer work due to an inability to rise from sitting down. He reportedly last worked in March 2015. He underwent a VA mental disorder examination in September 2020. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances, including work or a work like setting. A November 2020 VA ankle examination found that the left ankle disability affected his ability to work due to difficulty with prolonged walking or standing, and difficulty walking on uneven surfaces. A November 2020 VA foot examination noted pain with weight bearing and difficulty with prolonged walking or standing as an impediment to his ability to work. Additionally, a November 2020 VA hip examination also noted difficulty with prolonged sitting or standing and walking long distances. After a review of the evidence of record, the Board finds that the totality of the record indicates the functional impairments caused by the service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation. First, the evidence of record indicates the functional impairments caused by the service-connected disabilities would likely prevent him from obtaining or maintaining an occupation involving physical labor. This includes his service-connected bilateral foot, hip and radiculopathy disabilities, which makes it difficult for him to lift heavy objects or to work on his feet for a normal workday. Second, the Board finds the service-connected disabilities would likely prevent him from following a substantially gainful occupation no matter the level of physicality required. The evidence of record indicates the Veteran has struggled with anger, irritability and difficulty in adapting to stressful circumstances, including work or a worklike setting, and difficulty in establishing and maintaining effective work and social relationships. In this regard, VA medical records indicate that such symptoms are further exacerbated by chronic pain caused by his service-connected bilateral foot, hip and radiculopathy disabilities. The Board finds that the combined persistent functional effects would likely prevent the Veteran from being able to work around others, be effectively supervised, sustain the focus and attention to learn necessary skills, or to complete a full, productive work schedule in a substantially gainful occupation. Accordingly, based on the evidence of record, the Board finds the functional effects of the service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. Therefore, entitlement to a TDIU is warranted. REASONS FOR REMAND 9. Service Connection - Lumbar Spine Disability The Veteran seeks entitlement to service connection for a lumbar spine disability. Specifically, he asserts having developed a lumbar spine disability due to lifting 2,000 pound bombs during service. Alternatively, he asserts that he developed a lumbar spine disability secondary to his service-connected conditions. See October 2019 Board Hearing Transcript. The Board further notes that a June 2010 private medical record shows the Veteran was involved in a MVA resulting in lower back pain. He attended physical therapy for 4 weeks. At that time, he reported no residual problems and that he felt ready to return to work. He also reported a history of left sacroiliac joint and lower back pain with left lower extremity symptoms. A physical examination was noted to reveal apparent ilio-sacral lumbar dysfunction. See Private Medical Records Received August 2010. A VA lumbar spine examination was obtained in September 2015. The examiner noted a 1997 diagnosis for lumbar strain, and diagnostic testing revealing arthritis. The Veteran reported that his lumbar spine disability began as a result of an in-service injury, and that the condition was further aggravated by his service-connected bilateral foot condition. With regard to his in-service injury, he reported injuring his back in 1997 while loading 2,000 pound bombs. With regard to his service-connected bilateral foot condition, he reported that the condition caused pain when walking on uneven surfaces. No nexus opinion was provided. In a March 2016 VA examination report, the examiner opined that it was "less likely as not that the development of the back ... problems ... would be the direct and proximate result nor permanently worsened by the presence of the congenital ossicles of the IP joints of the great toes." In support of this opinion, the examiner noted a lack of indication that any health care provider related the lumbar spine disability to the congenital ossicles of the great toe IP joints. Another VA lumbar spine examination was obtained in November 2020. The examiner noted diagnoses for degenerative disc disease (DDD) and intravertebral disc syndrome (IVDS). In this regard, the DDD was found to be causing IVDS. The Veteran reported the onset of back pain during service while performing heavy lifting, and that his condition had progressed and worsened since that time. The examiner opined that the lumbar spine disability was "less likely than not (less than 50 percent probability)" etiologically related to service. In support of this opinion, the examiner noted no evidence of chronic back pain or a back condition during service. In addition, the examiner noted that the Veteran was not diagnosed with DDD until 2015, and that the condition commonly occurred due to injury, overuse, or age related wear and tear. As such, the examiner concluded that there was not enough evidence to support a finding that the current DDD and IVDS were directly related to service. The examiner further opined that it was "less likely than not (less than 50 percent probability)" that the lumbar spine disability was proximately due to or the result of the service-connected bilateral foot condition. In support of this opinion, the examiner stated that there was no evidence of any significant chronic gait impairment solely due to the service-connected bilateral plantar ossicles. The examiner additionally noted that there was not enough evidence to support a finding that the plantar ossicle under the IP joint of the bilateral big toes could have caused the DDD. Again, the examiner noted that DDD commonly occurred due to injury, overuse, or age related wear and tear. With regard to aggravation, the examiner again provided a negative medical opinion based on a noted lack of evidence to support a finding that the service-connected bilateral great toe condition could have aggravated the lumbar spine disability. In a January 2021 VA addendum report, the examiner stated that there was no medical literature indicating DDD could be caused or aggravated by pes planus or plantar fasciitis. Similarly, the examiner noted that there was no medical evidence to indicate that the service-connected left ankle sprain could have caused or aggravated the bilateral lumbar spine disability, and that there was additionally no evidence of any significant gait impairment caused by the left ankle sprain. The Board finds the VA examination reports of record inadequate to adjudicate the issue on appeal. With regard to direct service connection, the November 2020 VA examiner incorrectly based the negative nexus opinion, in part, on a finding that no lumbar spine disability was noted during service. Conversely, the Veteran was assessed with back pain of unknown etiology in January 1995, and a lumbar strain in March 1997. As such, the examiner's negative nexus opinion is based on an inaccurate factual predicate. Additionally, with regard to secondary service connection, the March 2016 VA examiner based a negative nexus opinion solely on the fact that the record did not contain a positive nexus opinion from another health care provider. Requiring such would vitiate VA's duty to assist in obtaining a medical opinion. See 38 U.S.C. § 5103A(d)(1); 38 C.F.R. § 3.159(c)(4). Further, the November 2020 and January 2021 negative nexus opinions were also based on inaccurate factual predicates. Specifically, that there was no evidence of any significant gait impairment caused by the service-connected lower extremity conditions. However, the evidence of record does not support this finding. In this regard, the Board notes that an August 2003 VA medical record noted the Veteran had restrictions on the use of his feet due to his medical conditions, and that he complained of pain and numbness in both big toes, and that his toes turned purple and became numb when he put pressure on them. See VA Medical Records Received August 2003. An April 2016 private medical record noted an irregular gait. See Private Records Received August 2020. In March 2017, a VA medical record noted the Veteran's gait was abnormal, slow and altered. In February 2018, a VA medical record noted an unsteady, exaggerated and antalgic gait. Another February 2018 VA medical record noted complaints of left ankle, left foot and back pain and the Veteran's gait was found impaired. Weakness with gait and transferring were noted in October 2018 and February 2019. The Veteran also complained of instability in his ankle and foot and continued pain. See VA Medical Records Received March 2021. Lastly, an April 2019 private medical record noted a physical examination revealing left ankle and foot instability. See Private Records Received December 2019. Lastly, the Board notes that during his October 2019 Board hearing, the Veteran stated that his obesity was caused by an inability to move and exercise as well as due to his medications. He further asserted that his obesity caused or aggravated his musculoskeletal conditions. Accordingly, another VA examination is necessary to properly adjudicate these issues on appeal. 10. 11. Service Connection - Cervical Spine Disability and BUE Radiculopathy. The Veteran seeks entitlement to service connection for a cervical spine disability and BUE radiculopathy. Specifically, he asserts that he developed a cervical spine in an injury sustained on an aircraft carrier during service, and that he received treatment for his neck during service. See November 2017 Private Medical Record (noting Veteran reported injuring his neck while on an aircraft carrier during service) and December 2019 Statement. Alternatively, he asserts that his cervical spine and BUE radiculopathy conditions are secondary to his service-connected disabilities, to include his lumbar spine and BLE conditions. See October 2019 Board Hearing Transcript. A December 2016 MRI study revealed minimal spondylosis from C3-C4 to C7-T1. See Private Medical Records Received August 2020. The Veteran underwent a VA cervical spine examination in May 2018. The examiner indicated that there was a diagnosed cervical spine condition, but only noted "normal" as a diagnosis. The Veteran reported constant neck pain with tingling in his right fingers on occasion. Cervical spine ROM was normal, and no pain was elicited during ROM testing. The cervical spine was not manifested by guarding or muscle spasm. Muscle strength, reflex and sensory testing was normal. The cervical spine was not manifested by radiculopathy. Arthritis was not shown on imaging studies. No etiological opinion was provided. Accordingly, the record contains a diagnosed cervical spine disability, however, no nexus opinion has been obtained. Additionally, as further noted above, the Veteran has separately asserted that his obesity caused or aggravated his musculoskeletal conditions. Accordingly, in order to properly adjudicate these issues on appeal, a VA examination is necessary. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records not already associated with the file from the Veteran's VA treatment facilities, and all private treatment records from the Veteran not already associated with the file. 2. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed lumbar spine disability (or telehealth interview, review of the record, etc., if an in-person examination is not necessary). The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran's diagnosed lumbar spine disability is etiologically related to his period of service? The examiner is asked to consider STRs noting complaints of lower back pain and treatment related to a lifting injury. (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed lumbar spine disability was caused by the Veteran's service-connected disabilities, to include as due to effects on his gait and stability? Please explain why or why not. The examiner is asked to consider private and VA medical records as early as August 2003 noting restrictions on use of the Veteran's feet due to his medical conditions, and findings of instability, weakness and an impaired gait related to his foot and ankle disabilities. The examiner should further consider a June 2010 private medical record showing treatment for lower back pain caused by a motor vehicle accident. (c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed lumbar spine disability was aggravated by the Veteran's service-connected disabilities, to include as due to effects on his gait and stability? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner is asked to consider private and VA medical records as early as August 2003 noting restrictions on use of the Veteran's feet due to his medical conditions, and reports of instability, weakness and impaired gait related to his foot and ankle disabilities. The examiner is further asked to provide opinions responding to the following: (d) Opine as to whether it is at least as likely as not (50% or better probability) that the Veteran's service-connected disabilities caused him to become obese, to include as due to any lack of exercise resulting from his service-connected disabilities. (e) If the answer to (a) is "no," opine as to whether it is at least as likely as not (50% or better probability) that the Veteran's service-connected disabilities aggravated his obesity, to include as due to any lack of exercise resulting from service-connected (disability). (f) Opine as to whether it is at least as likely as not (50% or better probability) that obesity (or the aggravation of obesity per question (e)) was a substantial factor in causing his lumbar spine disability. (g) Opine as to whether it is at least as likely as not (50% or better probability) that the Veteran would not have a lumbar spine disability if he were not obese (or but for obesity aggravated by (service-connected disability) per question (e)). The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 3. Then, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any diagnosed cervical spine disability, including any BUE radiculopathy (or telehealth interview, review of the record, etc., if an in-person examination is not necessary). The examiner should provide the following opinions: (a) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a diagnosed cervical spine disability, including spondylosis and BUE radiculopathy, that is etiologically related to his period of service? The examiner is asked to consider the Veteran's lay statements that he injured his neck during service in the bomb assembly area. The examiner should also consider a June 2010 private medical record noting a motor vehicle accident resulting in treatment for cervical pain. (b) Is it at least as likely as not (50 percent or greater probability) that any diagnosed cervical spine disability, including spondylosis and BUE radiculopathy, was caused by the Veteran's service-connected disabilities, to include as due to effects on his gait and stability? Please explain why or why not. The examiner is asked to consider private and VA medical records as early as August 2003 noting restrictions on use of the Veteran's feet due to his medical conditions, and reports of instability, weakness and impaired gait related to his foot and ankle disabilities. The examiner should further consider a June 2010 private medical records showing treatment for cervical spine pain caused by a motor vehicle accident. (c) Is it at least as likely as not (50 percent or greater probability) that any diagnosed cervical spine disability was aggravated by the Veteran's service-connected disabilities, to include as due to effects on his gait and stability? Please explain why or why not. If the examiner finds that the disability was aggravated by the service-connected disability, the examiner must identify the baseline level of the disability that existed before aggravation by the service-connected disability occurred. The examiner is asked to consider private and VA medical records as early as August 2003 noting restrictions on use of the Veteran's feet due to his medical conditions, and reports of instability, weakness and impaired gait related to his foot and ankle disabilities. The examiner is further asked to provide opinions responding to the following: (d) Opine as to whether it is at least as likely as not (50% or better probability) that the Veteran's service-connected disabilities caused him to become obese, to include as due to any lack of exercise resulting from his service-connected disabilities. (e) If the answer to (a) is "no," opine as to whether it is at least as likely as not (50% or better probability) that the Veteran's service-connected disabilities aggravated his obesity, to include as due to any lack of exercise resulting from service-connected (disability). (f) Opine as to whether it is at least as likely as not (50% or better probability) that obesity (or the aggravation of obesity per question (e)) was a substantial factor in causing his cervical spine disability. (g) Opine as to whether it is at least as likely as not (50% or better probability) that the Veteran would not have a cervical spine disability if he were not obese (or but for obesity aggravated by (service-connected disability) per question (e)). The examiner should review pertinent documents in the Veteran's claims file in connection with the examination. All indicated studies should be completed. Reasons should be provided for any opinion rendered. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. 4. Thereafter, the RO should readjudicate the claims on appeal. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Lamb, 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.