Citation Nr: 21005501 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 16-53 451 DATE: February 1, 2021 ORDER A higher disability rating in excess of 40 percent for residuals of prostate cancer prior to October 17, 2016, and in excess of 60 percent thereafter, is denied. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. Prior to October 17, 2016, the Veteran’s residuals of prostate cancer did not manifest by voiding dysfunction and/or urinary incontinence requiring the wearing of absorbent material which must be changed more than 4 times per day, or by constant albuminuria with some edema; or definite decrease in kidney function; or, hypertension at least 40 percent disabling. 2. From October 17, 2016, the Veteran’s residuals of prostate cancer did not manifest by persistent edema and albuminuria with BUN 40 to 80 mg%; or, creatinine 4 to 8 mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 3. The Veteran’s service-connected disabilities have precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a higher disability rating in excess of 40 percent for residuals of prostate cancer for the period prior to October 17, 2016, and in excess of 60 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.115a, 4.115b, Diagnostic Code (DC) 7528. 2. The criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1963 to September 1967. The case is on appeal from an October 2015 rating decision. The case was most recently before the Board in February 2019. At that time, the Board granted service connection for anemia and remanded the claims of an increased rating for residuals of prostate cancer and a TDIU as raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In a March 2019 rating decision, the RO implemented the Board’s grant of service connection for anemia. As such, that issue is no longer on appeal. With respect to the TDIU, in its February 2019 decision, the Board determined that while separate claims for a TDIU had been received in February 2019 and July 2019, review of the evidence of record reflected that the Veteran has attributed his inability to maintain gainful employment, in part, due to his residuals of prostate cancer. See March 2015 Notice of Disagreement (NOD) (received outside the appellate period with respect to a February 2013 rating decision). As such, the Board found that the issue of a TDIU was part and parcel of the June 2015 increase rating claim for residuals of prostate cancer. In addition, in a December 2018 Statement in Support of Claim, the Veteran expressed his desire to withdraw the increase rating claim for residuals of prostate cancer. Notwithstanding, the claim was certified to the Board for appellate review. In a November 2020 letter, the Board sought clarification from the Veteran as to his withdrawal intent. The Veteran was provided with 30 days to reply. No response was received within the time allotted. Thus, the Board will proceed to adjudicate the claim on the merits. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. A higher rating in excess of 40 percent for residuals of prostate cancer prior to October 17, 2016, in in excess of 60 percent thereafter. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. The Veteran’s prostate cancer is rated under 38 C.F.R. § 4.115b, DC 7528. Under that DC, for malignant neoplasms of the genitourinary system, a 100 percent rating is assigned for active malignancy. After six months following the cessation of surgical, x-ray, antineoplastic chemotherapy, or other therapeutic procedure, if there has been no local reoccurrence or metastasis, the disability is to be rated on residuals, as voiding dysfunction or renal dysfunction, whichever is predominant. Voiding dysfunction is rated under the three subcategories of urine leakage, urinary frequency, and obstructed voiding. Regarding urine leakage, a 20 percent disability rating is warranted when dysfunction requires the wearing of absorbent materials which must be changed less than 2 times per day. A 40 percent disability rating is warranted when the dysfunction requires wearing absorbent materials which must be changed 2 to 4 times per day. A 60 percent disability rating is warranted when the dysfunction requires the use of an appliance or the wearing of absorbent materials which must be changed more than 4 times per day. 38 C.F.R. § 4.115a. As for urinary frequency, a 10 percent disability rating is warranted when daytime voiding intervals between 2 and 3 hours, or; awakening to void 2 times per night. A 20 percent disability rating is warranted when daytime voiding interval between 1 and 2 hours, or; awakening to void 3 to 4 times per night. A maximum 40 percent disability rating is warranted with daytime voiding intervals of less than an hour or awakening to void 5 or more times per night. Id. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Analysis The Veteran asserts that the rating evaluations assigned throughout the pendency of the appeal do not compensate for the severity of his residuals of prostate cancer such as voiding dysfunction, urine leakage, erectile dysfunction, and/or renal dysfunction. By way of background, in a February 2013 rating decision, and pursuant to DC 7528, the RO reduced the Veteran’s disability evaluation for residuals of prostate cancer from 100 percent to 40 percent effective May 1, 2013. While the Veteran submitted an October 2014 NOD, the appeal was not timely, and the decision became final. In June 2015, the Veteran submitted an increase rating claim for his prostate cancer residuals. In an October 2015 rating decision, the RO confirmed and continued the assigned 40 percent rating. This time the Veteran timely appealed the decision. See September 2016 NOD. In a subsequent December 2018 rating decision, the RO increased the rating disability evaluation from 40 percent to 60 percent effective October 17, 2016. This created the staged ratings now on appeal. Thus, the question before the Board is whether the severity of the Veteran’s residuals of prostate cancer warrant a higher rating in excess of 40 percent prior to October 17, 2016, and in excess of 60 percent thereafter. For the reasons set forth below, the Board finds that higher ratings are not warranted at any time during the pendency of the appeal. a. A higher rating in excess of 40 percent prior to October 17, 2016. Following the June 2015 increase rating claim, the Veteran was afforded a VA examination in August 2015. The Veteran reported urinary frequency requiring awakening to void five or more times per night and daytime urination every four hours. The VA examiner noted that the Veteran’s voiding dysfunction caused urine leakage; however, only requiring the use of absorbent material once at night. The Veteran denied renal insufficiency or infections or symptoms of obstructed voiding. As to the latter, the VA examiner noted that the Veteran underwent a Transurethral Resection/Vaporization of the Prostate (TURP) for symptoms of urine retention and slow stream secondary to benign prosthetic hypertrophy. However, the examiner acknowledged that the urination frequency had improved, and that the Veteran was able to empty his bladder better. The VA examiner indicated that beside the symptoms reported above, the Veteran did not have any other residual conditions or complications as a result of the prostate cancer. In light of the foregoing, the October 2015 rating decision confirmed and continued the assigned 40 percent rating as the Veteran’s symptoms and predominant manifestations were encompassed under the criteria required for such rating under the urinary frequency subcategory per 38 C.F.R. § 4.115a. See also DC 7528. VA treatment records reflect that although the Veteran may have experienced some renal insufficiency in the past, his condition was stable without any manifestations. See April 27, 2015 progress notes. The Veteran did complain of some urine leakage that has been present since a 2009 brachytherapy as part of his treatment for his prostate cancer. See July 7, 2016 progress notes. However, neither the Veteran nor the VA provider made reference or statements as to the frequency or severity of such urine leakage. VA treatment records for the period prior to October 17, 2016, do not reflect that the Veteran was provided absorbent material from the VA health care system for the reported urine leakage. Private treatment records from Hawaii Pacific Health (HPH) System reflect that in June 2015, the Veteran complained of increased urinary frequency and nocturia every hour following a June 2013 TURP. See June 24, 2015 progress notes. In December 2015, the Veteran’s private urologist indicated that, while the Veteran was emptying his bladder well, he continued complaining of nocturia which, following the June 2013 TURP, had increased from 5 times per night to up to 10 times per night. However, the Veteran denied dysuria or gross hematuria. The private provider confirmed nighttime awakening to void 10 times or more. See December 24, 2015 progress notes. In September 2016, the Veteran’s urologist noted a history of urinary frequency and urgency symptoms with “occasional urge incontinence.” The Veteran reported urinary frequency of every 1-2 hours; urge incontinence at night as well; and small volume voids due to overreactive bladder. The Veteran denied dysuria and hematuria. See September 13, 2016 progress notes. In November 2016, the Veteran’s urologist noted that the Veteran’s urinary frequency and incontinence were worsening, now requiring the use of several pads per day. In a statement submitted along with his October 2016 VA Form 9, the Veteran indicated that his urinary frequency caused voiding between 25 and 30 times per day and required the use of absorbent material 4 to 5 times at night and between 2 to 3 times during the day. In light of the foregoing, in a December 2018 rating decision, the RO increased the Veteran’s rating evaluation from 40 percent to 60 percent effective October 17, 2016, the day on which the lay evidence of record ascertained the use of absorbent materials. With respect to the period prior to October 17, 2016, the Board notes that the medical and lay evidence of record neither indicates nor suggests a worsening of prostate cancer, its residuals or manifestations, of greater severity than the 40 percent rating assigned for that period. As noted above, while the medical evidence corresponding to the period in question indicates that, in fact, the Veteran’s urinary frequency and incontinence gradually increased, prior to October 17, 2016, the evidence indicate that his residuals of prostate cancer still manifested by voiding intervals between 3 to 4 hours, and thereafter, between 1 to 2 hours, to include awakening to void 5 or more times per night throughout the entire appeal period. These manifestations and symptoms are fully contemplated under the currently assigned 40 percent disability rating for that period. The August 2015 VA examination and additional medical and lay evidence for the period herein discussed reflects no indication that the Veteran used absorbent materials to manage his urinary frequency/incontinence more than once a night. Accordingly, for the period prior to October 17, 2016, the Board finds that the Veteran’s residuals of prostate cancer, which are predominantly manifested by voiding dysfunction, has not required the use of an appliance or the wearing of absorbent materials that must be changed more than 4 times per day. Thus, as the preponderance of the evidence is against a rating in excess of 40 percent for residuals of prostate cancer for the period prior to October 17, 2016, the benefit-of-the-doubt does not apply, and a higher rating in excess of 40 percent is not warranted. b. A higher rating in excess of 60 percent from October 17, 2016. With respect to a higher rating in excess of 60 percent for the period from October 17, 2016, the Veteran was afforded a VA examination in October 2017. The examination report indicates that the Veteran’s urine leakage requires absorbent material more than 4 times per day with voiding intervals of less than 1 hour. The VA examiner did not find recurrent symptomatic urinary tract or kidney problems or infections. The foregoing findings correspond to the currently assigned 60 percent rating. Pursuant to the Board’s February 2019 remand, the Veteran was afforded a VA examination later that month to assess the severity of his residuals. The VA examiner noted that the Veteran experiences voiding every hour “day and night,” and that his urine leakage requires the use of absorbent materials which must be changed more than 4 times per day. The VA examiner noted a negative history of kidney infections and indicated that there are no other residual conditions as a result of the Veteran’s prostate cancer. Again, these findings correspond to a 60 percent rating pursuant to 38 C.F.R. § 4.115a. VA treatment records reflect that throughout the pendency of the appeal period in question, the Veteran’s blood urea nitrogen (BUN) and creatinine levels have been 26mg with a creatinine level of 1.20mg (see March 1, 2020 laboratory chemistry profile); 36mg with a creatinine level of 1.53mg (see August 17, 2017 laboratory chemistry profile); 40mg with a creatinine level of 1.62mg (see March 1, 2018 laboratory chemistry profile); and most recently, 38mg with a creatinine level of 1.74mg (see August 20, 2018 laboratory chemistry profile). In October 2018, a VA provider noted that while the Veteran has a history of chronic renal insufficiency and his creatinine levels appeared elevated, his condition was stable. See October 3, 2018 VA primary care entry. The provider noted no evidence of edema. The Board notes that while there is an isolated episode in which the Veteran’s BUN was 40mg for purposes of a higher rating under consideration of renal dysfunction, the Veteran’s residuals of prostate cancer are still predominantly manifested by voiding dysfunction as shown by the medical evidence of record. In fact, VA treatment records reflect that although there is a history of renal insufficiency, the condition is stable. This is supported not only by the laboratory chemistry results which do not show “a persistent albuminuria with BUN 40 to 80mg,” but also by the October 2017 and February 2019 VA examiners who did not find kidney infections or a greater degree of renal insufficiency. Moreover, upon review of the medical records and his in person interview with the Veteran, the February 2019 VA examiner indicated that there are no other residual conditions as a result of the Veteran’s prostate cancer. For the reasons set forth above, the Board finds that a rating in excess of 60 percent is not warranted at any time during the period herein discussed as there is no evidence of renal dysfunction with persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion, the required criteria for the next 80 percent rating under 38 C.F.R. § 4.115a. The Board has further considered the ratings for urinary frequency and voiding dysfunction. The first does not surpass a 40 percent rating and the currently assigned 60 percent rating is the maximum rating allowed for the latter. Moreover, the Veteran’s erectile dysfunction, which is also a residual of his prostate cancer, has been rated as part of his disability and special monthly compensation for the loss of use of the creative organ is currently in effect pursuant to 38 C.F.R. § 3.155(d)(2). In sum, for the period from October 17, 2016, the preponderance of the evidence is against a rating in excess of 60 percent, and thus, the benefit-of-the-doubt doctrine does not apply. Accordingly, as there is no reasonable doubt to be resolved, from October 17, 2016, a higher rating in excess of 60 percent for residuals of prostate cancer is not warranted. 2. A TDIU. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is 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, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran’s history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Analysis As previously noted, the issue of a TDIU stems from the Veteran’s increase rating claim for residuals of prostate cancer received on June 25, 2015. See Rice v. Shinseki, 22 Vet. App. 447. During the pendency of the appeal, the Veteran has contended that the complications and effects resulting from his residuals of prostate cancer, posttraumatic stress disorder (PTSD), anemia associated to his prostate cancer, bilateral hearing loss, and tinnitus preclude him from maintaining substantially gainful employment. See February and July 2019 TDIU claims. See also November 2012 TDIU claim and March 2015 NOD. Initially, the Board notes that a combined 80 percent rating is in effect since May 1, 2013, and a combined 90 percent rating has been in effect since October 17, 2016, with at least one disability rated at 40 percent during both periods. Thus, from June 25, 2015 (date of the increase rating claim for prostate cancer), the Veteran is service-connected for residuals of prostate cancer rated at 40 percent and at 60 percent effective October 17, 2016; PTSD and associated symptoms rated at 50 percent; anemia as secondary to prostate cancer rated at 10 percent; tinnitus rated at 10 percent; and a noncompensable rating for hearing loss. Accordingly, the criteria for a TDIU on a schedular basis is met from June 25, 2015. See 38 C.F.R. § 4.16a. In a February 2019 VA Form 21-8940 (Veteran’s Application for Increased Compensation based on Unemployability), the Veteran listed his service-connected residuals of prostate cancer, PTSD, hearing loss, and tinnitus as conditions preventing him from securing or following any substantial gainful employment. In a subsequent VA Form 21-8940, received in July 2019, the Veteran reported that he was employed as a heavy equipment operator and that he last worked full-time in January 2013, as he became too disable to work. The Veteran further noted that he did not pursue any education or training following high school. In a Mach 2015 NOD, the Veteran stated that the conditions that make him unemployable are his PTSD and continuing problems that resulted from his prostate cancer. As for the latter, the Veteran indicated that the need to get up constantly to urinate during the day and at night directly interferes with his capacity to work. He further indicated that his main employment has been operating heavy equipment and driving semi trucks and that due to his PTSD and residuals of prostate cancer, ha has been precluded from working. First, the Board notes that a TDIU requires evidence that the Veteran is unable to pursue a substantially gainful occupation due to his service-connected disabilities. The Board has reviewed the evidence of record and finds that the Veteran’s service-connected PTSD and associated symptoms, in addition to his residuals of prostate cancer, anemia, and hearing loss have precluded him from securing or following substantially gainful employment. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). (In adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history). With respect to the effects of the Veteran’s residuals of prostate cancer, during his August 2015 VA examination, the examiner acknowledged that the Veteran’s voiding dysfunction caused nighttime awakening to void 5 times or more. The Veteran reported he was self-employed as a heavy equipment operator until 2012, when he had to retire. The VA examiner opined that the Veteran’s residuals of prostate cancer did not impact his ability to work. No further details or rationale accompanied the report in that regard. During a subsequent October 2017 prostate cancer VA examination, the VA examiner confirmed the Veteran’s need to get up at night to void 5 or more times and daytime voiding intervals of less than 1 hour. The examiner included a diagnosis of anemia that was secondary to his prostate cancer and treatment. Similarly, the VA examiner indicated that the Veteran’s residuals of prostate cancer residuals did not impact his ability to work. Pursuant to the Board’s February 2019 remand, the Veteran was afforded an additional prostate cancer VA examination in February 2020. The VA examiner indicated that the impact of the Veteran’s residuals of his prostate cancer included “going to the bathroom every hour day and night. This was supported later in the report as the examiner acknowledged that the Veteran needs to wake up at night 5 times or more to void and that his daytime voiding intervals are of less than one hour. This time, the VA examiner indicated that although the Veteran is now retired, his prostate cancer and anemia “make him too fatigued to work.” As for the Veteran’s PTSD, VA treatment records reflect that in March 2016, the Veteran reported symptoms such as agoraphobia; anxiety that renders him socially avoidant, easily startled and always on alert; depression; fear; intense difficulties in crowds of any size; sense of worthlessness; and social isolation. He further noted excessive alertness as he is always looking around for possible threats. He also reported trouble with memory and concentration and that he cannot sleep as he either has to urinate 10 times at night or wakes up due to combat nightmares. See March 14, 2016 Mental Health Comprehensive Evaluation. A February 2019 VA PTSD examination report reflects that the Veteran’s PTSD is manifested by occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The VA examiner noted that the Veteran experiences insomnia and additional ongoing symptoms of PTSD, such as feelings of detachment and estrangement from others, hypervigilance, depressed mood, chronic sleep impairment, and difficulty in establishing and maintaining effective work and social relationships that cause clinically significant distress or impairment in social, occupational, or other important areas of functioning. Lastly, the VA examiner indicated that the Veteran’s main complaint is trouble sleeping due to frequent waking after his prostate cancer and that it is likely that his nightmares also affect his sleep. In sum, the examiner noted that trouble sleeping can affect concentration, mood, and productivity in a work setting. With respect to his hearing loss, in a March 2020 VA audiology examination report, the VA audiologist noted that the Veteran’s disability impact his ordinary conditions of daily life, to include his ability to work as the Veteran’s left ear hearing is worsening and people have to repeat themselves. (Continued on the next page)   Here, the Board notes that the Veteran’s work history and experience following service appears to be limited to employment as a heavy equipment operator/semi truck driver. There is no other indication in the record that the Veteran has any experience in, or the potential for, a non-physical job. The records further reflect that following his diagnosis of prostate cancer in 2009, and subsequent brachytherapy in February 2009 and TURP in June 2013, the manifestations of its residuals progressed and gradually interfered with his occupational functioning to a greater degree, particularly due to the constant need to urinate during the day and night, which, in turn, triggered his inability to sleep and rest. As previously discussed, the Veteran reported, and his VA and private providers acknowledged, that he can awake up to 10 times or more at night. In addition, the February 2020 VA examiner opined that the Veteran’s anemia, when considered along with the additional residuals of his prostate cancer, make him too fatigued to work. While the August 2015 and October 2017 VA examiners opined that the Veteran’s residuals of prostate cancer did not impact his capacity to work, the Board notes that the effects of such residuals directly and consistently interfere with his employment for the following reasons. As previously noted, the Veteran’s work experience appears to be limited to work as a heavy equipment operator and as a truck driver; an occupation that entails and requires a high grade of alertness, concentration, and awareness for safety’s sake. The need to wake up from 5 to 10 times per night for voiding suggests chronic sleep disturbances, which, in turn, results in a lack of sufficient rest to perform such occupation. In addition, this later worsened to a greater extent when his voiding intervals became of less than 1 hour. Concerning the PTSD, the medical evidence shows trouble with memory and concentration and also a lack of sleep as he either has to urinate 10 times a night or wakes up due to combat nightmares. This is supported by the February 2019 VA examiner who noted that trouble sleeping can affect concentration, mood, and productivity in a work setting. Ultimately, the March 2020 audiologist opined that the Veteran’s hearing loss effect his capacity to function in daily life, to include his ability to work. In conclusion, the Board notes that the overall impact of the Veteran’s service-connected disabilities could reasonably result in poor focus and poor task completion in any type of work environment. Here, the Board finds the February 2019 VA examiner’s statements and opinion as to the effect of his PTSD and associated symptoms, and the February 2020 VA examiner’s statements and opinion as to the effect of his residuals of prostate cancer on his employability are sufficient and probative. The aggregate effect of the Veteran’s service connected disabilities suggests a complex medical picture contrary to employability. In sum, the issue of employability is not a medical issue but a legal one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Therefore, and after consideration of the Veteran’s individual circumstances, to include his education, training, and work history, the Board finds that the evidence has reached a level of equipoise to support the Veteran’s eligibility for TDIU on a schedular basis as provided in 38 C.F.R. § 4.16; see also Ray, 31 Vet. App. at 73. The severity of the Veteran’s residuals of prostate cancer, anemia, PTSD and related symptoms and hearing loss preclude him from securing or following a substantially gainful occupation. This is particularly so when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Thus, a TDIU is warranted. E. BLOWERS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board William Pagan, 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.