Citation Nr: 21005981 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 13-08 391 DATE: February 3, 2021 ORDER A 10 percent rating for degenerative disc disease L4-5 and L5-S1 with moderate spondylosis and dextroscoliosis is granted from August 17, 2010 to December 20, 2010. Entitlement to a rating in excess of 10 percent for degenerative disc disease L4-5 and L5-S1 with moderate spondylosis and dextroscoliosis prior to November 2, 2016 is denied. Entitlement to a rating in excess of 40 percent for degenerative disc disease L4-5 and L5-S1 with moderate spondylosis and dextroscoliosis from November 3, 2016 to October 11, 2017 is denied. Entitlement to a rating in excess of 20 percent for degenerative disc disease L4-5 and L5-S1 with moderate spondylosis and dextroscoliosis from October 12, 2017 to September 5, 2019 is denied. Entitlement to a rating in excess of 40 percent for degenerative disc disease L4-5 and L5-S1 with moderate spondylosis and dextroscoliosis from September 6, 2019 is denied. Entitlement to an effective date prior to July 17, 2017 for a total disability rating due to individual unemployability based on service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. From August 17, 2010 to December 20, 2010 the Veteran had arthritis and limitation of motion of the lumbosacral spine. 2. Prior to November 2, 2016, the Veteran did not have forward flexion of the thoracolumbar spine limited to 60 degrees or less, a combined range of motion of the thoracolumbar spine limited ot 120 degrees or less, or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 3. From November 3, 2016 to October 11, 2017, the Veteran did not have unfavorable ankylosis of the entire thoracolumbar spine. 4. From October 12, 2017 to September 5, 2019, the Veteran did not have forward flexion of the thoracolumbar spine limited to 30 degrees or less and he did not have ankylosis of the entire thoracolumbar spine. 5. From September 6, 2019, the Veteran has not had unfavorable ankylosis of the entire thoracolumbar spine. 6. The Veteran first met the criteria for TDIU as of July 17, 2017, and this date was later than the date of receipt of the claim. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for degenerative disc disease L4-5 and L5-S1 with moderate spondylosis and dextroscoliosis are met from August 17, 2010 to December 20, 2010. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5236-5243. 2. Prior to November 2, 2016, the criteria for a rating in excess of 10 percent for degenerative disc disease L4-5 and L5-S1 with moderate spondylosis and dextroscoliosis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5236-5243. 3. From November 3, 2016 to October 11, 2017, the criteria for a rating in excess of 40 percent for degenerative disc disease L4-5 and L5-S1 with moderate spondylosis and dextroscoliosis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5236-5243. 4. From October 12, 2017 to September 5, 2019, the criteria for a rating in excess of 20 percent for degenerative disc disease L4-5 and L5-S1 with moderate spondylosis and dextroscoliosis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5236-5243. 5. From September 5, 2019, the criteria for a rating in excess of 40 percent for degenerative disc disease L4-5 and L5-S1 with moderate spondylosis and dextroscoliosis are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5236-5243. 6. The criteria for an effective date prior to July 17, 2017, for the grant of TDIU are not met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1982 to October 2004. An October 2017 rating decision decreased the Veteran’s low back rating from 40 percent to 20 percent effective October 12, 2017. As to the propriety of this reduction, the Veteran did not initiate an appeal by filing a timely notice of disagreement (NOD) and no new and material evidence was received within the appeal period. Thus, the October 2017 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 20.302, 20.1103. As such, the propriety of the reduction as a separate issue is not before the Board. A May 2018 rating decision granted entitlement to a TDIU effective July 17, 2017. Thus, entitlement to a TDIU prior to July 17, 2017 is considered to be a component of his claim for an increased evaluation for his low back disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). An April 2020 rating decision discontinued entitlement to a TDIU effective May 1, 2020. The Veteran did not initiate an appeal by filing a timely NOD as to the discontinuance of the TDIU. Thus, the issue currently before the Board is limited to entitlement to a TDIU to the period prior to July 17, 2017. The Veteran’s claims were most recently remanded by the Board in September 2020, for issuance of a supplemental statement of the case (SSOC). The agency of original jurisdiction (AOJ) has issued the appropriate SSOC and the Veteran’s claims are now ready for appellate review by the Board. In March 2016, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). That VLJ is no longer employed by the Board. By letter dated in June 2020, the Veteran was provided the opportunity to testify at another hearing before a VLJ. However, the Veteran did not respond, thus Board may proceed with appellate consideration. 1. Entitlement to a compensable rating for a low back disability prior to December 20, 2010. The Veteran’s claim for an increased rating for his low back disability was received by VA on December 20, 2010. As noted by the Board’s September 2020 remand decision, the rating period for consideration on appeal is up to one year prior to the date of receipt of the claim for increase if it is factually ascertainable that an increase occurred during that one-year period. The Board has reviewed the evidence of record dated from December 20, 2009 to December 20, 2010. The Board finds that the Veteran is entitled to a 10 percent rating for his low back disability from August 17, 2010. On that date it was factually ascertainable that the increase in back disability had occurred. Prior to that date the Veteran was not shown to have limitation of motion of the lumbosacral spine. An August 17, 2010 private medical record noted that the Veteran complained of chronic back pain and that he had decreased range of motion of the lumbar spine with tenderness. Under DC 5003, degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a. As noted above, the Veteran was first shown to have lumbar spine limitation of motion and painful motion by the August 17, 2010 private treatment records. The Board further notes that May 2004 x-rays revealed the Veteran to have mild dextroscoliosis along with moderate spondylosis and disc space narrowing L4-5 and L5-S1. This indicates that the Veteran had degenerative arthritis of the lumbosacral spine and such has also been verified by more recent x-rays. Accordingly, the Veteran met the criteria for a 10 percent rating for his low back disability from August 17, 2010 and thus an increased rating of 10 percent is warranted from August 17, 2010 to December 20, 2010. As noted above, it was not factually ascertainable that the Veteran had limitation of motion of the thoracolumbar spine from December 20, 2009 to August 17, 2010 and thus he was not entitled to a compensable rating prior to August 17, 2010. 2. Entitlement to a rating in excess of 10 percent for low back disability prior to November 2, 2016. The Board notes that previously this issue was characterized as entitlement to a rating in excess of 10 percent for low back disability from December 20, 2010 to November 2, 2016. However, due to the above grant of a 10 percent rating from August 17, 2010, the Board must consider whether the Veteran is entitled to a rating in excess of 10 percent for his low back disability from August 17, 2010 to November 2, 2016. The Veteran testified at his March 2016 hearing that an April 2011 VA examination report incorrectly stated that he had 90 degrees of forward flexion. He asserted that at that time his forward flexion was limited to 45 degrees. Under the General Rating Formula for Diseases and Injuries of the Spine, disability ratings of 10, 20, 40, 50, 60, and 100 percent are authorized for thoracolumbar disability. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, for muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or for vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less. And 40, 50, and 100 percent ratings are warranted for disorders manifested by ankylosis. Ankylosis is defined as “stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint[.]” Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). The normal combined range of motion of the thoracolumbar spine is 240 degrees with 90 degrees flexion, 30 degrees extension, 30 degrees each for left and right lateral flexion, and 30 degrees each for left and right rotation. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43, Note (2); Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. When assessing the severity of a musculoskeletal disability that is rated based on limitation of motion, VA must consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when symptoms are most prevalent (“flare-ups”) due to the extent of pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. On VA examination in April 2011 the Veteran reported that in the past 12 months his back disability had not resulted in any incapacitation. He had full range of motion of the thoracolumbar spine, with flexion to 90 degrees, and 240 degrees of combined range of motion. Pain was noted at 45 degrees, but the examiner stated that the Veteran’s spine had full range of motion and was not additionally limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. The examiner noted that muscle spasm was present but that it did not produce an abnormal gait. There was no guarding of movement and examination revealed no weakness. Muscle tone was normal and there was no ankylosis of the thoracolumbar spine. When examined by VA in December 2013, the Veteran reported flareups in which he could not move for three to four days. He said that he had constant back pain, at times severe. He reported that he could not stand, sit, or walk for any length of time. He said that bending and lifting aggravated his lower back and that he had difficulty sitting, resting, driving and sleeping due to back pain and discomfort. Examination revealed the Veteran to have 75 degrees of forward flexion with painful motion noted at 40 degrees of flexion. The Veteran had 220 degrees of combined range of motion. There was no reduction in ranges of motion with repetitive-use testing. The examiner noted that the Veteran’s back disability resulted in functional loss consisting of less movement than normal, excess fatigability, pain on movement, disturbance of locomotion and interference with sitting, standing and/or weight-bearing. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The examiner stated that the Veteran had IVDS and that the total duration of all incapacitating episodes over the last 12 months had been at least two weeks but less than four weeks. The impact on the Veteran’s ability to work was moderate impairment of sitting, standing, moving about, and lifting. He further stated that there were no contributing factors of weakness, fatigability, incoordination or pain during flareups or repeated use over time that could additionally limit the functional ability of the thoracolumbar spine. The Board recognizes that the December 18, 2013 VA examination revealed that the Veteran met the criteria for a 20 percent rating based on incapacitating episodes of IVDS under DC 5243. However, a February 2014 rating decision granted the Veteran service connection and a 20 percent rating for left lower extremity radiculopathy, effective from December 18, 2013 under DC 8521. The radiculopathy is a neurological manifestation of the Veteran’s back disability. If the Board granted an increased 20 percent rating for his low back disability under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, the Veteran’s separate 20 percent evaluation for left lower extremity radiculopathy under Diagnostic Code 8521, effective December 18, 2013 would have to be removed, as any evaluation under Diagnostic Code 8521 and under Diagnostic Code 5243 simultaneously for that period would result in impermissible pyramiding. See 38 C.F.R. § 4.14. In other words, if the Board were to grant ratings under both the General Formula, which provides for separate ratings for objective neurologic manifestations, and the formula based on Incapacitating Episodes, which does not provide for separate ratings, or were to apply the General Formula and the Incapacitating Episodes Formula for the same time period, the Veteran would be compensated more than once for the same manifestations. The Board notes that the Veteran’s 10 percent rating for his back disability under the General Formula, and his separate 20 percent for left lower extremity radiculopathy, provide him a higher total rating than if he were only assigned the 20 percent rating based on incapacitating episodes. Consequently, the award of an increased rating under the Formula for Incapacitating Episodes is not appropriate. The Board finds that a rating higher than 10 percent for the Veteran’s low back disability based on limitation of motion has not been warranted from August 17, 2010 to November 2, 2016. None of the evidence indicates that the criteria for a 20 percent rating under the General Formula, Diagnostic Codes 5235-5243, has been approximated during that time period. None of the evidence indicates forward flexion of 60 degrees or less, a combined range of motion of 120 degrees or less, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Both the April 2011 and December 2013 VA examinations showed that the Veteran had forward flexion of 75 degrees or more and a combined range of motion of 220 degrees or more. With regards to the Veteran’s assertions that the April 2011 examiner incorrectly documented 90 degree of forward flexion, the Board notes that the examiner noted 90 degrees of flexion both before and after repetitive motion, which indicates that the examiner did not make any mistakes in recording the amount of forward flexion. The examiner did note that the Veteran had pain starting at 45 degrees, but he specifically noted that there was no loss of motion due to pain. Furthermore, the 10 percent rating assigned recognizes symptoms such as pain. Based on the above, the Board finds that even with consideration of DeLuca factors a rating in excess of 10 percent for the Veteran’s low back disability is not warranted between August 17, 2010 to November 2, 2016. 3. Entitlement to a rating in excess of 40 percent for low back disability from November 3, 2016 to October 11, 2017. A March 2017 rating decision granted the Veteran an increased rating of 40 percent for the Veteran’s low back disability based on limitation of flexion of the thoracolumbar spine. The Board notes that the rationale for this decision is contained in a March 2017 SSOC rather than in the rating decision itself. The 40 percent rating was assigned effective from November 3, 2016, and continued until it was reduced effective October 11, 2017. As explained below the Board finds that the Veteran was not entitled to a rating in excess of 40 percent for his low back disability between November 3, 2016 to October 11, 2017. The Veteran was not entitled to rating in excess of 40 percent based on incapacitating episodes. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. A November 2016 examination report noted that the Veteran had not had any episodes of IVDS that required bed rest prescribed by a physician and treatment by a physician in the prior 12 months. None of the evidence dated between November 3, 2016 to October 11, 2017 indicated that the Veteran had incapacitating episodes having a total duration of at least six weeks. Accordingly, a rating in excess of 40 percent based on incapacitating episodes was not warranted between November 3, 2016 to October 11, 2017. The evidence of record from November 3, 2016 to October 11, 2017 does not show that the Veteran’s low back disability was productive of unfavorable ankylosis of the entire thoracolumbar spine, the criteria for a 50 percent rating. On VA examination in November 2016 the examiner specifically noted that the Veteran did not have ankylosis of the spine. The Veteran had 45 degrees of forward flexion and it was estimated that during flareups forward flexion of the thoracolumbar spine would be limited to 20 degrees. None of the medical evidence between November 3, 2016 to October 11, 2017 indicates that the Veteran had unfavorable ankylosis of the thoracolumbar spine. Accordingly, a staged ratting in excess of 40 percent is not warranted between November 3, 2016 to October 11, 2017. 4. Entitlement to a rating in excess of 20 percent for low back disability from October 12, 2017 September 5, 2019. An October 2017 rating decision reduced the Veteran’s rating for his low back disability from 40 percent to 20 percent, effective from October 12, 2017. This decision also granted service connection and compensable ratings for additional radiculopathy disabilities of the lower extremities caused by the Veteran’s low back disability. Consequently, even though his disability rating based on limitation of flexion of the thoracolumbar spine was reduced from 40 to 20 percent, the overall combined rating for the combined residuals of the Veteran’s low back disability increased from 50 to 60 percent. The Veteran’s 20 percent rating for his low back disability was later increased back to 40 percent effective September 5, 2019. As explained below the Board finds that a rating in excess of 20 percent was not warranted for the Veteran’s low back disability between October 12, 2017 September 5, 2019. An October 2017 VA examination and the other evidence of record between October 12, 2017 and September 5, 2019 indicates that the Veteran did not have any incapacitating episodes of IVDS and thus the Veteran would not be entitled to a higher rating if he were rated based on incapacitating episodes rather than under the General Formula. After 20 percent the next higher rating for a thoracolumbar spine disability, based on limitation of motion, is 40 percent. As noted above, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine of 30 degrees or less, or when there is favorable ankylosis of the entire thoracolumbar spine. A review of the evidence dated between October 12, 2017 September 5, 2019 fails to show that the Veteran had ankylosis of the thoracolumbar spine. In October 2017 a VA examiner specifically noted that the Veteran did not have ankylosis of the entire thoracolumbar spine. The October 2017 examination report reveals that the Veteran had 50 degrees of forward flexion. The examiner noted that the Veteran had pain but that the pain did not cause functional loss. There was no additional loss of function or range of motion after repetitions. The examiner noted that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. She further noted that pain, weakness, fatigability and incoordination did not significantly limit functional ability during flareups. There was no evidence of pain with weight bearing. The medical evidence dated between October 12, 2017 September 5, 2019 fails to show that the Veteran had forward flexion of the thoracolumbar spine limited to 30 degrees or less even with consideration of DeLuca factors. Consequently, the Veteran was not entitled to a rating in excess of 20 percent between October 12, 2017 September 5, 2019 based on limitation of flexion. 5. Entitlement to a rating in excess of 40 percent for low back disability from September 6, 2019. An April 2020 rating decision granted the Veteran an increased rating of 40 percent for his low back disability, effective September 6, 2019. The evidence of record from September 6, 2019 does not show that the Veteran’s low back disability was equivalent to unfavorable ankylosis of the entire thoracolumbar spine, the criteria for a 50 percent rating. On VA examination in September 2019 the examiner specifically noted that the Veteran did not have ankylosis of the spine. The Veteran had 40 degrees of forward flexion and it was estimated that during flareups he would have 30 degrees of thoracolumbar forward flexion. None of the medical evidence since September 6, 2019 indicates that the Veteran has unfavorable ankylosis of the thoracolumbar spine. Accordingly, a staged ratting in excess of 40 percent is not warranted. The Board further notes that the Veteran is not entitled to rating in excess of 40 percent based on incapacitating episodes. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. The September 2019 examination report noted that the Veteran had not had any episodes of IVDS that required bed rest prescribed by a physician and treatment by a physician in the prior 12 months. None of the evidence dated since September 6, 2019 indicates that the Veteran has had incapacitating episodes having a total duration of at least six weeks during a 12-month period. Accordingly, a rating in excess of 40 percent based on incapacitating episodes is not warranted from September 6, 2019. 6. Entitlement to TDIU prior to July 17, 2017. The May 2018 rating decision on appeal granted the Veteran TDIU effective from July 17, 2017. The Veteran seeks an effective date prior to July 17, 2017. At his March 2016 hearing the Veteran reported that he left his last job in March of 2015. He testified that he had done some consulting work since them. He reported that he had a doctorate and that he was looking to get back to teaching online. In November 2016 the Veteran reported that he was currently pursuing higher education in hopes of teaching online in the future. He stated that online teaching would provide the flexibility he needed to be gainfully employed. The Veteran submitted a December 2019 letter from a former employer. The employer stated that the Veteran had worked approximately 20 hours per week from October 2017 to August 2018. The employer noted that the Veteran’s ability to work during that time had been impacted on numerous occasions due to his recurring back and neck pain flareups. The grant of TDIU is an award of increased disability compensation for purposes of assigning an effective date. Dalton v. Nicholson, 21 Vet. App. 23 (2007). The assignment of effective dates for increased ratings is governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is, “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Under 38 U.S.C. § 5110(a), the effective date of an increase in a veteran’s disability compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application. Section 5110(b)(2) provides an exception to this general rule: The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date. The Veteran raised the claim of TDIU at his March 17, 2016 hearing. However, even though a claim for TDIU has been pending since that date, the record does not indicate that the Veteran met the criteria for TDIU prior to July 17, 2017. Prior to July 17, 2017 the Veteran’s service-connected disabilities were his low back disability, rated at 40 percent; left lower extremity sciatic nerve radiculopathy rated at 20 percent; and left ear tinnitus, rated at 10 percent. The Veteran’s combined service-connected disability rating prior to July 17, 2017 was 60 percent. Accordingly, the Veteran did not meet the schedular criteria for TDIU prior to July 17, 2017. That is, he did not have one service-connected disability rated at 60 percent or more, or one service-connected disability rated at 40 percent or more and additional service-connected disability bringing the combined rating to 70 percent or more. See 38 C.F.R. § 4.16. Although the Veteran’s low back and left lower extremity disabilities may be considered as one disability for TDIU purposes in this case, their combined rating was only 50 percent, not the required 60 percent. In the Veteran’s case, entitlement arose as of July 17, 2017 when he first met the schedular criteria for TDIU and was found to be unemployable due to his service-connected disabilities. Furthermore, the record indicates that the Veteran was employed prior to July 17, 2017. The Veteran is not entitled to TDIU prior to the date entitlement arose, that is July 17, 2017. 38 C.F.R. § 3.400. Accordingly, an effective date prior to July 17, 2017 for the grant of TDIU is not warranted. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. E. Jones, 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.