Citation Nr: 21006161 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 19-03 428A DATE: February 3, 2021 ORDER Entitlement to an initial 10 percent rating for right cranial neuropathy, nerve V, is granted. Entitlement to a compensable initial rating for residuals of left forearm fracture is denied. Entitlement to service connection for erectile dysfunction is denied. Entitlement to service connection for peripheral vascular disease is denied. Entitlement to service connection for peripheral nerve disability is denied. Entitlement to service connection for headaches is denied. Entitlement to an earlier effective date of September 12, 2013, for the award of service connection for an acquired psychiatric disorder is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for an acquired psychiatric disorder is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The evidence of record reflects moderate incomplete paralysis of cranial nerve V. 2. The Veteran’s left forearm fracture manifests in normal x-ray findings, normal range-of-motion findings, and no reported flare-ups or functional loss or impairment. 3. The evidence does not relate the Veteran’s erectile dysfunction to active service. 4. There is no evidence of a diagnosis of peripheral vascular disease. 5. The evidence does not relate a peripheral nerve disability to active service. 6. There is no evidence of a currently diagnosed headache disability and the Veteran’s symptoms of facial pain have been attributed to his already service connected disabilities. 7. On September 12, 2013, the Veteran first filed a claim for service connection for posttraumatic stress disorder (PTSD). VA treatment records beginning in January 2013 show a diagnosis of anxiety disorder and chronic complaints of depression. CONCLUSIONS OF LAW 1. The criteria for an initial 10 percent rating, but no higher, for right cranial neuropathy, nerve V, have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 8205. 2. The criteria for a compensable initial rating for residuals of left forearm fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.71, 4.71a, Diagnostic Codes 5299-5212. 3. The criteria for service connection for erectile dysfunction have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for peripheral vascular disease have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection for peripheral nerve disability have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 6. The criteria for service connection for headaches have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 7. The criteria for an effective date of September 12, 2013, but no earlier, for the award of service connection for an acquired psychiatric disorder have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.400, 3.155. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from July 1969 to May 1971. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). In September 2013, the Veteran filed a claim of service connection for PTSD. A September 2014 rating decision denied that claim, and the Veteran filed a timely notice of disagreement (NOD). He continued to seek service connection for PTSD and requested service connection for anxiety disorder. An August 2018 rating decision granted service connection for unspecified depressive disorder, noting that it was a full grant of the benefit sought concerning the Veteran’s claimed PTSD and anxiety disorder. Accordingly, the Board has reframed the issues on appeal as entitlement to an initial rating in excess of 10 percent for acquired psychiatric disorder and entitlement to an earlier effective date for the award of service connection for an acquired psychiatric disorder to include all psychiatric diagnoses. The Board notes that additional VA treatment records were associated with the claims file following SOCs regarding some of the matters on appeal. However, they are either redundant of diagnoses already reviewed by the RO or are irrelevant. Accordingly, a waiver of initial RO consideration is not required for the Board to review this evidence. The Veteran initially requested a hearing regarding his claims of service connection for headaches and service connection for hypertension. In October 2020, the Veteran was provided a hearing clarification letter and advised that if he did not respond, that the Board would assume that he no longer desired a hearing. Because no response has been received, the Board assumes that any hearing request has been withdrawn and will proceed with a decision. An October 2018 SOC addressed claims for service connection for hypertension, rhinitis, vertigo, and bilateral hearing loss. A separate October 2018 SOC addressed claims of service connection for headaches, residuals of traumatic brain injury, and left shoulder condition. The Veteran then filed a VA Form 9 and only appealed the issues of service connection for hypertension and service connection for headaches. Thus, the other issues are not on appeal. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the U.S. Court of Appeals for Veterans’ Claims (Court) held that entitlement to a total disability rating based on individual unemployability (TDIU) claim may be considered part and parcel of an increased rating claim. The Court found that when entitlement to a TDIU is raised during the adjudicatory process of the underlying disability, it is part of the claim for benefits for the underlying disability. The Veteran has not alleged unemployability concerning the increased initial rating issues on appeal and the record has not reasonably raised that issue. Accordingly, the Board finds that Rice is not applicable and a need for consideration of TDIU is not inferred as part of the claims for increased initial ratings. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). These duties have been satisfied in this case. Because the Veteran’s claims for higher initial ratings arose from awards of service connection, additional notice is not required. Concerning headaches, the Veteran was provided notice when he filed a fully developed claim in June 2017 and provided notice in January 2018 when he filed a fully developed claim form concerning his claimed peripheral nerve condition, peripheral vascular disease, and erectile dysfunction. The RO associated the Veteran’s Reserve service records and VA and private outpatient treatment records with the claims file. Concerning his claimed left forearm fracture, the Veteran had identified VA medical treatment beginning in January 2011. However, the RO requested all VA treatment records from the New Orleans VA Medical Center and determined that records from January 2011 to January 2012 did not exist. The November 2019 SOC that denied a compensable initial rating for left forearm fracture noted the unavailability of those records and, importantly, the Veteran has only been service connected for left forearm fracture from 2016. No additional notification to the Veteran concerning the unavailability of these records is required. Concerning private treatment records, all released or submitted private treatment records have been associated with the claims file. No other relevant records have been identified and are outstanding. In this respect, the Veteran submitted copies of private treatment records and advised the RO that the records he submitted were sufficient and that VA did not need to request those records. Finally, the Veteran’s service medical treatment records are unavailable. In instances where a Veteran’s service department records are unavailable, the Board is under a heightened obligation to explain its findings and to carefully consider whether the evidence is in equipoise, and if so, to resolve the matter in the claimant’s favor. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). The RO made multiple efforts to locate the service treatment records, determined that the records were unavailable, and adequately notified the Veteran by a December 2016 letter. Appropriate and necessary examinations were afforded the Veteran concerning his claims for higher initial ratings and his claim for service connection for headaches. The VA examination reports are adequate for evaluation, as they include the needed findings to permit application of the rating schedule and identification of current disability. The Board notes that the Veteran was not provided VA examinations concerning his claims for service connection for erectile dysfunction, peripheral nerve disability, and peripheral vascular disease. However, there is no evidence to indicate an in-service injury event or disease or evidence regarding chronicity or etiology. As such, VA examinations are not required. VA has satisfied its duty to assist. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Initial rating - Right cranial neuropathy, nerve V Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2020). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). 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 (2020). Under Diagnostic Code 8205, a 10 percent rating is for application when there is incomplete, moderate paralysis of the fifth (trigeminal) cranial nerve, a 20 percent rating is for incomplete, severe paralysis; and a 30 percent rating for paralysis that is complete. The use of the terms “moderate” and “severe” are not defined in the VA Rating Schedule. At the outset, the Board recognizes the Veteran’s attorney’s argument concerning a clear and unmistakable error in the assignment of an initial noncompensable rating for his cranial neuropathy, nerve V. However, the rating decision that had assigned the initial rating is not yet final and this argument is not appropriate. The Veteran contends that his service-connected cranial neuropathy, nerve V, warrants an initial 10 percent disability rating based on the May 2017 VA examination findings. In May 2017, the Veteran was provided a VA examination for cranial nerve conditions. The diagnosis was listed as right cranial nerve V neuropathy with neuralgia secondary to laceration/repair/scar tissue. The Veteran reported that when doing physical training in 1998, he was struck in the face causing a laceration above the right eye requiring 21 sutures. He stated that the area above his right eye always hurt and that he had sharp pain when he touched his right eyebrow to wash his face. The examiner noted that the cranial nerve V was impacted. The Veteran had moderate intermittent pain; moderate dull pain; severe paresthesias and/or dysesthesias; and severe numbness of the upper face, eye, and/or forehead. The examiner noted that muscle strength testing was normal. Sensory examination showed decreased sensation of the upper face and forehead. The examiner concluded that the right cranial nerve V (trigeminal) exhibited incomplete moderate paralysis. It was noted that the Veteran had neuropathy of the cranial nerve V with decreased sensation in the area of his right eyebrow and sharp pain precipitated by pressure over his scar. In January 2018, the Veteran was provided another VA examination for cranial nerve conditions. The examiner noted a diagnosis of right cranial nerve V injury. The Veteran reported that when the weather was cold, his right lateral eyebrow hurts, and he must pat dry the area over the right lateral eyebrow. The findings show that the cranial nerve V (trigeminal) was affected. The Veteran had mild intermittent pain, mild dull pain, mild paresthesias and/or dysesthesias, and mild numbness of the upper face, eye, and/or forehead. Muscle strength testing was normal. Sensory examination showed decreased sensation of the right upper face and forehead. Given the medical evidence of record, the Board will resolve doubt in favor of the Veteran and assign an initial 10 percent rating for moderate incomplete paralysis of cranial nerve V under Diagnostic Code 8205. Though the most recent VA examination report only reflects mild symptoms, the May 2017 VA examination report indicated moderate incomplete paralysis and the Board finds such evidence supports a 10 percent rating. However, a rating in excess of 10 percent is not warranted because the medical evidence of record does not show severe incomplete paralysis. Again, the Veteran has only requested a 10 percent rating. The Board also recognizes that the May 2017 VA examination report shows complaints of severe paresthesias and/or dysesthesias; and severe numbness of the upper face, eye, and/or forehead, the examiner continued to assess the Veteran’s incomplete paralysis as moderate and the subsequent VA examination report shows that the Veteran had normal muscle strength testing, decreased and not absent sensation, and only mild symptoms of pain, paresthesias and/or dysesthesias, and mild numbness of the upper face, eye, and/or forehead. The associated medical records also do not reflect any symptomatology involving paralysis of the face. A higher rating is not warranted. Finally, with respect to scarring of the face, the Board notes that the Veteran originally requested service connection for residuals of a head injury and a May 2017 rating decision granted two separate compensable ratings for his scars. In that same rating decision, the Veteran was also granted service connection for cranial neuropathy, nerve V, and assigned a noncompensable initial rating. The Veteran only appealed the issue as to a higher rating for cranial neuropathy, nerve V, to the Board. Therefore, the preponderance of the evidence is against the claim and the Veteran is not entitled to an initial rating in excess of 10 percent. Initial Rating - Residuals of left forearm fracture The Veteran’s left forearm fracture is rated as noncompensable under Diagnostic Code 5205. Diagnostic Code 5205 provides that ankylosis of the elbow is to be rated as follows: for favorable ankylosis of the elbow at an angle between 90 degrees and 70 degrees, 40 percent for the major elbow and 30 percent for the minor elbow; for intermediate ankylosis of the elbow, at an angle of more than 90 degrees, or between 70 degrees and 50 degrees, 50 percent for the major elbow and 40 percent for the minor elbow; for unfavorable ankylosis of the elbow, at an angle of less than 50 degrees or with complete loss of supination or pronation, 60 percent for the major elbow and 50 percent for the minor elbow. 38 C.F.R. § 4.71a. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Painful motion is an important factor of disability, and it is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. See 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). The provisions of 38 C.F.R. §§ 4.40, 4.45 are not for consideration where the veteran is in receipt of the highest rating based on limitation of motion and a higher rating requires ankylosis. Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997). In September 2018, the Veteran was provided a VA examination for his left forearm fracture. The examiner noted that there were no residuals of the healed left arm fracture. The Veteran did not report flare-ups or functional loss or impairment. Range of motion findings were normal. There was no pain on examination, no objective evidence of tenderness or pain on palpation of the joint, and no evidence of pain with weight bearing. There was normal muscle strength in flexion and extension of the left elbow. The examiner explained that the current x-rays showed no abnormalities and it was assumed that the Veteran’s reported fracture from service was healed. The Board finds that the Veteran’s left forearm fracture does not warrant a compensable initial rating under Diagnostic Code 5205. There is no evidence of ankylosis. In addition, the Veteran does not experience forearm flexion limited to 110 degrees or less, or extension to 45 degrees. Indeed, the medical evidence of record shows a healed fracture with no x-ray abnormalities, normal range of motion, and no reports of flare-ups or functional impairment and loss. Accordingly, compensable ratings for limitation of flexion and/or extension are not warranted. There is also no evidence of impairment of flail joint, joint fracture with marked cubitus varus or cubitus valgus deformity of with ununited fracture of head of radius, nonunion of radius and ulna with flail false joint, ulna impairment, radius impairment, or impairment of supination or pronation. Therefore, the Veteran is not entitled to ratings under Diagnostic Codes 5209 through 5213. The preponderance of the evidence is against the claim and the Veteran is not entitled to a compensable rating for his service-connected left forearm fracture. Entitlement to service connection for erectile dysfunction, peripheral vascular disease, and peripheral nerve disability In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). First, the medical evidence of record does not reflect any diagnosis of peripheral vascular disease and the Veteran has not presented any statements concerning any observable symptomatology. The Veteran is also not considered competent to diagnose himself with peripheral vascular disease. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Accordingly, service connection is not warranted based on the absence of a current disability. Concerning erectile dysfunction and peripheral nerve disability, VA medical treatment records show notations of erectile dysfunction and cervical radiculopathy. With respect to an in-service injury, event, or disease, the Board notes that the Veteran’s service medical treatment records are unavailable. See O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). However, there is no evidence of such disabilities until years after service. Indeed, there is no evidence of complaints or notations related to these claimed disabilities in the Veteran’s Reserve records. For instance, in a February 2007 report of medical history, the Veteran denied experiencing any numbness or tingling or impaired use of arms, legs, hands, or feet, and reported that he was in good health. The accompanying examination report also shows that all systems were clinically evaluated as normal. In addition, the Veteran has not provided statements indicating when he began to suffer from these disabilities or why he believes those disabilities are related to active service. The medical evidence of record does not attribute any of the claimed disabilities to active service, and no other theories of entitlement are reasonably raised. Therefore, the preponderance of the evidence is against the claims and service connection is not warranted for erectile dysfunction, peripheral vascular disease, and peripheral nerve disability. Entitlement to service connection for headaches The medical treatment records contain a notation of occasional headaches and, in 2015, the Veteran indicated that he experienced sinus headaches several times a week and reported a history of sinusitis. However, the records do not contain any diagnosis of a headache disability. In a May 2017 VA examination report for cranial nerve conditions, the Veteran reported that the area above his right eye always hurt and that he had sharp pain when he touched his right eyebrow to wash his face. The examination findings showed pain of the upper face, eye, and/or forehead. In a June 2017 VA examination for residuals of a traumatic brain injury, the Veteran again reported that the area above his right eye always hurt and that he had sharp pain when he touched his right eyebrow to wash his face. In July 2017, the Veteran was provided a VA examination for his claimed headaches. The examiner noted that the Veteran had not had and had not ever been diagnosed with a headache condition. The Veteran reported that he suffered an in-service head injury causing laceration above the right eye which required stiches. He had also complained of pain involving the right trigeminal nerve due to laceration and scars. The Veteran reported headache pain described as pain above the eyebrow; localized without radiation and constant head pain when touched around the eyebrow. The examiner determined that the Veteran did not have characteristic prostrating attacks of migraines or non-migraine headache pain. The examiner noted that the symptoms described by the Veteran and that the prior VA examination reports confirmed the atypical facial pain due to the injury and scarring above right eye. Given the above, the Board finds that the Veteran does not have a currently diagnosed headache disability. Though the Veteran is competent to report his pain, he explained to the VA examiner that his pain is located on his face and above his right eyebrow. The Board assigns great probative value to the July 2017 VA examiner’s opinion who reviewed the Veteran’s reported symptoms, examined the Veteran, and determined that the reported pain was represented by the Veteran’s already service-connected scars and right cranial neuropathy, nerve V. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); McClain v. Nicholson, 21 Vet. App. 319 (2007). Without a current diagnosis, the Veteran fails to meet the requirements of service connection. Earlier Effective Date The assignment of effective dates of awards is generally governed by 38 U.S.C. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for compensation benefits shall be the date of receipt of the claim or the date entitlement arose, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(b)(2). A specific claim in the form prescribed by the Secretary must be filed for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). Effective March 24, 2015, the law no longer allows for informal claims, but the pertinent regulation allows a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155(b). On September 12, 2013, VA received the Veteran’s application for disability compensation benefits, and he requested service connection for PTSD. A September 2014 rating decision denied that claim and the Veteran filed a timely notice of disagreement. During the pendency of that appeal, the Veteran also claimed service connection for anxiety. An August 2018 rating decision granted service connection for depressive disorder, noting that it was a full grant of the appeal for PTSD and anxiety disorder. The rating decision assigned an effective date of June 1, 2017, to the award, noting that it was the first evidence of a depressive disorder. However, the Board finds that an earlier effective date of September 12, 2013, is warranted for the award of service connection. Because the Veteran’s September 12, 2013, claim requested service connection for PTSD, it is interpreted to include a request for all psychiatric diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (holding that the claimant without medical expertise cannot be expected to precisely delineate the diagnosis of his mental illness; he filed a claim for the affliction that his mental condition, whatever it is, causes him). As the RO’s grant of service connection noted that it was a full grant of the benefits sought on appeal, i.e., all psychiatric diagnoses, the Veteran’s date of claim is September 12, 2013. Concerning whether entitlement arose after the Veteran’s claim was received by VA, the Board notes that an August 2014 VA examination report indicated that a mental disorder had not been diagnosed. However, a January 2013 VA treatment record shows a diagnosis of anxiety disorder (sub-clinical PTSD) noting a partial range of PTSD symptoms. The subsequent VA treatment records also indicate assessments of unspecified trauma disorder and reports of depression. As a result, the Board finds that an effective date of September 12, 2013, is warranted for the award of service connection for an acquired psychiatric disorder. REASONS FOR REMAND Entitlement to an initial rating in excess of 10 percent for an acquired psychiatric disorder is remanded. Here, the Veteran was most recently provided a VA examination in July 2018. The examiner determined that the Veteran only exhibited depression. Thereafter, the Veteran submitted a disability benefits questionnaire (DBQ) for PTSD, completed by a mental health counselor, that indicated more severe psychiatric symptoms. Given the disparity between the VA examination and the DBQ, the Board finds that a new VA examination is required. Consideration of evaluation based on the above award of an earlier effective date may also impact current ratings. Entitlement to service connection for hypertension is remanded. The medical evidence of record shows a diagnosis of hypertension and the Veteran contends that this is related to exposure to herbicide agents during his service in the Republic of Vietnam. Concerning indication of an association between the Veteran’s hypertension and his exposure to herbicide agents during active service, the Veteran’s attorney argued that the recent National Academy of Sciences 2018 update established sufficient evidence to warrant a VA examination. The attorney noted that the Veterans and Agent Orange: Update 11 (2018), published by the NAS upgraded the previous classification of hypertension from the category of “limited or suggestive” evidence of an association to herbicide agent exposure to the category of “sufficient” evidence of an association. Accordingly, the Board finds that a VA medical examination is required. 38 U.S.C. § 5103A(d)(2), 38 C.F.R. § 3.159(c)(4)(i); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA medical examination for his service-connected acquired psychiatric disorder. The claims file must be made available for review and the examiner must address the current manifestations of the Veteran’s psychiatric disorder. 2. Schedule the Veteran for a VA medical examination for his claimed hypertension. The claims file must be made available for review. The examiner must opine whether the Veteran’s hypertension is at least as likely as not related to his service, to include his presumed exposure to herbicide agents during his service in Vietnam. A full and complete rationale must be provided for any opinion reached and the examiner should address the recent NAS update. 3. Upon completion of the above, and any additional development deemed appropriate, readjudicate the remanded issues. If the issues remain denied, return the matters to the Board for appellate review if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Seay, 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.