Citation Nr: 21006625 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 06-29 255 DATE: February 4, 2021 ORDER An initial rating in excess of 30 percent for asbestosis, asthma, and chronic obstructive pulmonary disease (COPD) is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT For the entire appeal period, the Veteran’s asbestosis, asthma, and COPD is not most nearly manifested by Forced Expiratory Volume (FEV-1) of 40 to 55 percent predicted, FEV-1/Forced Vital Capacity (FVC) of 40 to 55 percent or 50 to 64 percent, Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) 40 to 55 percent predicted, maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation, at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. CONCLUSION OF LAW For the entire appeal period, the criteria for an initial rating in excess of 30 percent for asbestosis, asthma, and COPD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.27, 4.96, 4.97, Diagnostic Code (DC) 6833-6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1964 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued in September 2005 and April 2012, by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2008, the Veteran testified at a hearing before a Decision Review Officer (DRO). A transcript of the hearing is associated with the record. While the Veteran previously requested a Board hearing in connection with his appeal, he withdrew such request in September 2013. 38 C.F.R. §§ 20.702(e), 20.704(e). In June 2010, the Board denied service connection for asthma and COPD. Subsequently, the Veteran appealed such decision to the United States Court of Appeals for Veterans Claims (Court). In July 2011, the Court granted the Veteran’s and the Secretary of VA’s (the parties) Joint Motion for Partial Remand (JMPR), which vacated and remanded the Board’s June 2010 decision for action consistent with the JMPR. Thereafter, in February 2012 and April 2014, the Board remanded such issue for additional development. In March 2019, the Board granted service connection for COPD and asthma, and in an April 2019 rating decision, the Agency of Original Jurisdiction (AOJ) implemented such award and assigned a 30 percent rating for the Veteran’s service-connected asbestosis, asthma, and COPD for the entire appeal period. The appeal now returns for further appellate consideration. Entitlement to an initial rating in excess of 30 percent for asbestosis, asthma, and COPD. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Francisco v. Brown, 7 Vet. App. 55 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The Veteran is in receipt of a 30 percent rating for his asbestosis, asthma, and COPD for the entire appeal period, stemming from his March 22, 2005 claim for service connection, under DC 6833-6602. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Asbestosis is rated pursuant to DC 6833, which is evaluated under the General Formula for Interstitial Lung Disease. 38 C.F.R. § 4.97, DC 6833. Under that formula, a 30 percent rating applies where there is FVC of 65- to 74-percent predicted, or; DLCO (SB) of 56- to 65-percent predicted. Id. A 60 percent rating applies where there is FVC of 50- to 64-percent predicted, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation. A 100 percent rating applies where there is FVC less than 50-percent predicted, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption with cardiorespiratory limitation, or; cor pulmonale or pulmonary hypertension, or; requires outpatient oxygen therapy. Asthma, bronchial is rated under DC 6602, which provides a 30 percent rating is warranted where pulmonary function test (PFT) PFTs show any of the following: FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent; or daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. A 60 percent disability evaluation is warranted where PFTs show any of the following: FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent; or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent evaluation is warranted where PFTs show any of the following: FEV-1 less than 40 percent predicted, FEV-/FVC less than 40 percent; or more than one attack per week with episodes of respiratory failure, or where the use of systemic high dose corticosteroids or immuno-suppressive medications are required on a daily basis. 38 C.F.R. § 4.97, DC 6602. COPD is rated pursuant to DC 6604, which provides a 30 percent evaluation is assigned for a FEV-1 of 56 to 70 percent predicted, an FEV-1/FVC of 56 to 70 percent, or a DLCO (SB) of 56 to 65 percent predicted. A 60 percent evaluation is assigned for an FEV-1 of 40 to 55 percent predicted, an FEV-1/FVC of 40 to 55 percent, a DLCO (SB) of 40 to 55 percent predicted, or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent evaluation is assigned for an FEV-1 less than 40-percent predicted, an FEV-1/FVC less than 40 percent, a DCLO (SB) less than 30 percent predicted, maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), cor pulmonale (right heart failure), right ventricular hypertrophy, pulmonary hypertension (shown by Echo or cardiac catheterization), episode(s) of acute respiratory failure, or requires outpatient oxygen therapy. Ratings under DCs 6600 through 6817 and 6822 through 6847 will not be combined with each other. Rather, a single rating will be assigned under the DC which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a). Additionally, when evaluating a disability based on PFTs, the post-bronchodilator results are to be used in applying the evaluation criteria in the rating schedule unless such are poorer than the pre-bronchodilator results. In such cases, the pre-bronchodilator values are to be used for rating purposes. 38 C.F.R. § 4.96(d)(5). Based upon a review of the evidence, the Board finds that a rating in excess of 30 percent for the Veteran’s respiratory disorder is not warranted for the entire appeal period. In this regard, a February 2005 opinion from Dr. C.P. noted that a spirometry demonstrated an FEV-1 of 99 percent and a FVC of 113 percent with a ratio of 69 percent, which may indicate some minimal obstructive disease but normal flow rates. Post-bronchodilator there was no significant change. Dr. C.P. also noted an impression of occupationally induced asthma versus hypersensitivity induced reactive airways disease secondary to his exposure to the aerosol of metalworking fluid while working as an employee at the Eaton Corporation. He further noted that in his experience, patients with exposure to metalworking fluid induced airway injury, but often the static PFT may be intact but they may have significant reactions of methacholine and to pulmonary exercise testing. He opined that the Veteran should never return to any type of environment that included metalworking fluid. A March 2005 private treatment record noted that the Veteran had a methacholine challenge study that did not result in any significant change in his FEV-1 and FVC. Pulmonary function studies revealed an FEV-1 of 93 percent predicted, FVC of 100 percent predicted, and a DLCO of 95 percent predicted, which revealed mild hyperinflation with air trapping and normal gas exchange. The clinician also noted that the Veteran’s symptoms were most consistent with a diagnosis of asthma. In April 2005, the Veteran underwent a VA examination. At such time, the examiner noted that the Veteran had a diagnosis of COPD and asthma, and that PFTs were completed two weeks ago at the University of Michigan and he was awaiting results. A June 2005 appeal for long term disability benefits found that there was no clinical support for any loss of functionality from any occupation as a result of the Veteran’s asthma or obstructive lung disease based on his normal March 2005 methacholine challenge study, PFTs, and chest CT scan. May 2005 PFTs also revealed that the Veteran had an FEV-1 of 86 percent and an FVC of 107 percent. August 2005 PFTs revealed pre-bronchodilator FEV-1 of 86 percent predicted, FVC of 107 percent predicted, and FEV-1/FVC of 81 percent predicted. Post-bronchodilator results were unavailable. In an October 2006 VA treatment record, the clinician noted that the Veteran had no previous hospitalizations for asthma and his PFTs revealed an FEV-1 of 60 percent and an FVC of 68 percent. In January 2007, the Veteran reported that his symptoms had improved over the last several weeks and that he had multiple triggers for his asthma, including humidity, perfumes, and various odors. He had a FEV-1 of 55 percent and an FVC of 63 percent. In July 2007, the Veteran reported that his symptoms were stable and that he had some improvement in the number of exacerbations since he was last seen. He did not report excessive use of his rescue inhalers and described his current symptoms as difficulty swallowing and a globus sensation with severe attacks of his asthma. He also described inducing vomiting with “bad” attacks, but only had about 5 to 6 of them in the past 6 months. His PFTs revealed an FEV-1 of 84 percent and FVC of 91 percent. In October 2007, the Social Security Administration (SSA) found that the Veteran was unable to perform any past relevant work due to his severe impairments of asthma, COPD, degenerative disc disease, and GERD, and that he had not engaged in substantial gainful activity since March 31, 2003. A May 2008 spirometry noted that post-bronchodilator, the Veteran had an FVC of 107 percent predicted, an FEV-1 of 115 percent predicted, and an FEV-1/FVC of 87 percent predicted. His DLCO was 81 percent. The clinician concluded that although there was airway obstruction and a diffusion defect suggesting emphysema, the absence of overinflation was inconsistent with that diagnosis and the response to bronchodilators indicated a reversible component. In a June 2008 private treatment record, Dr. M.H. found that the Veteran’s presentation was consistent with early asbestosis as well as an obstructive and reactive presentation most likely related to his exposure to organic solvents. Thereafter, in a September 2011 VA treatment record, the Veteran reported increasing shortness of breath and the clinician referred him back to pulmonary as he had not been seen since 2008. October 2011 PFTs revealed post-bronchodilator FEV-1 of 100 percent predicted, FVC of 101 percent predicted, and FEV-1/FVC of 100 percent predicted. The Veteran also had normal right and left ventricles and no significant valvular abnormalities. November 2011 PFTs revealed an FEV-1 of 72 percent predicted, FVC of 71 percent predicted, and FEV-1/FVC of 76 percent predicted. In August 2012, the Veteran underwent another VA examination. At such time, the examiner noted a diagnosis of asthma. The Veteran reported that he still had shortness of breath and denied any emergency room visits or hospitalizations for asthma or COPD. He also stated that he had not taken corticosteroids or antibiotics over the past 2 years and that cold weather used to trigger an asthma attack, but he denied having any asthma exacerbations over the past year. He also reported that he presently took Spiriva, one inhalation per day and albuterol inhaler as needed, on average about 4 to 5 times per week. The examiner noted that the Veteran’s respiratory disability did not require the use of oral or parenteral corticosteroid medications and required intermittent inhalational bronchodilator therapy. The examiner also noted that the veteran did not require outpatient oxygen therapy for his respiratory disability and had no asthma attacks with episodes of respiratory failure in the past 12 months. PFTs revealed post-bronchodilator FVC of 101 percent predicted, FEV-1 of 104 percent predicted, FEV-1/FVC of 103 percent predicted, and a DLCO of 114 percent predicted. The examiner also found that the Veteran’s respiratory disability did not impact his ability to work. January 2013 PFTs revealed an FEV-1 and FVC of 52 percent predicted, and an FEV-1/FVC of 74 percent. However, in March 2013, the Veteran had an FEV-1 of 92 percent predicted, an FVC of 96 percent predicted, and an FEV-1/FVC of 71 percent. The clinician also noted that despite impressive symptoms on the Veteran’s last visit, normal spirometry and CT scan today did not support a diagnosis of pulmonary fibrosis and in fact, marked lability of PFTs over the years still most consistent with asthma. August 2013 PFTs also revealed an FEV-1 of 92 percent predicted, FVC of 98 percent predicted, and an FEV-1/FVC of 70 percent. In July 2014, the Veteran underwent another VA examination. At such time, the examiner noted diagnoses of asthma, emphysema, and COPD. The Veteran reported that he was taking a pain mediation due to the scar tissue in his lungs and sometimes had to take the inhaler up to 12 times per day based on the environment he was in. The Veteran’s respiratory disability did not require the use of oral or parenteral corticosteroid medications, but required the use of inhaled medications on an intermittent basis. Such disability also did not require the outpatient oxygen therapy. The examiner also noted that the Veteran had an average of 4 or more asthma attacks with episodes of respiratory failure per week in the past 12 months with no physician visits required for such exacerbations. PFTs revealed post-bronchodilator, an FVC of 107 percent predicted, FEV-1 of 110 percent predicted, FEV-1/FVC of 101 percent and DLCO of 70 percent predicted pre-bronchodilator. The examiner found that the Veteran’s asthma was predominantly responsible for his limitation in pulmonary function and that his respiratory disability did not impact his ability to work. Subsequent VA treatment records indicate that the Veteran’s lungs were clear to auscultation bilaterally with good bilateral inspiratory effort and there was no evidence of wheezes, rales, or rhonchi, and he denied shortness of breath. See September 2014, June 2015, February 2016, February 2017, March 2018, April 2018, November 2018, and March 2019 VA treatment records. Such records also noted that he continued to use Spiriva and albuterol inhalers. In April 2019, the Veteran underwent another VA examination. At such time, the examiner noted a diagnosis of asthma and that such did not require the use of oral or parenteral corticosteroid medications. However, such disability required the intermittent use of inhaled medications and did not require outpatient oxygen therapy. The examiner also noted that the Veteran did not have any asthma attacks with episodes of respiratory failure in the past 12 months. The examiner further noted PFTs were not performed due to the Veteran requiring outpatient oxygen therapy. However, the AOJ requested another VA examination with PFTs as the examiner contradicted himself as to whether the Veteran had outpatient oxygen therapy. Accordingly, the Veteran was afforded another VA examination in March 2020. At such time, the examiner noted diagnoses of asbestosis, asthma, and COPD. The Veteran reported his lung condition was getting worse since 2009 because he was no longer taking steroids. He also reported he had shortness of breath when going up and down steps and when there was low humidity. The examiner noted the Veteran’s respiratory disability did not require the use of oral or parenteral corticosteroid medications but required daily use of inhaled medications. She also found that the Veteran did not require outpatient oxygen therapy and that he did not have any asthma attacks with episodes of respiratory failure in the past 12 months. PFTs post-bronchodilator revealed an FVC of 119 percent predicted, an FEV-1 of 112 percent predicted, an FEV-1/FVC of 93 percent predicted, and a DLCO of 80 percent predicted pre-bronchodilator. Based on the foregoing, the Board finds that a rating in excess of 30 percent for the Veteran’s service-connected asbestosis, asthma, and COPD is not warranted as the evidence of record does not indicate that his service-connected asbestosis, asthma, and COPD is most nearly manifested by FEV-1 of 40 to 55 percent predicted, FEV-1/Forced Vital Capacity (FVC) of 40 to 55 percent or 50 to 64 percent, Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) 40 to 55 percent predicted, maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation, at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids to warrant a rating, which is required for a 60 percent rating pursuant to DCs 6602, 6604, and 6833. Specifically, the aforementioned PFTs contain readings well above 55 percent for FEV-1, FEV-1/FVC, FVC, or DLCO throughout the appeal period. In this regard, the Board notes that in January 2007, the Veteran’s PFTs revealed an FEV-1 of 55 percent and an FVC of 63 percent, and January 2013 PFTs revealed an FEV-1 and FVC of 52 percent predicted, which would warrant a rating of 60 percent under DCs 6602, 6604, or 6833. However, such results were for a short period of time and are not indicative of the severity of the Veteran’s respiratory disability as his PFTs revealed an FEV-1 of 84 percent and an FVC of 91 percent in July 2007, and an FEV-1 of 92 percent predicted and an FVC of 96 percent predicted in March 2013. Additionally, while the July 2014 VA examiner noted that the Veteran had an average of 4 or more asthma attacks with episodes of respiratory failure per week in the past 12 months, which would warrant a 100 percent rating under DC 6602, the contemporaneous evidence suggests otherwise. Specifically, in August 2013, which was within the past 12 months prior to the July 2014 VA examination, the Veteran reported that he was able to walk at least 100 feet on a slight incline, stopping more for pain and dyspnea. He also stated he was using tiotropium each night with no apparent side effects and albuterol 1 to 3 times per day, and that he required 1 to 2 medically metered-dose inhalers per month. The clinician noted that the Veteran’s asthma was extremely well controlled on tiotropium with some excessive use of short-acting beta agonists. He also noted that due to the Veteran’s intolerance to inhaled steroids, he would not restart them now and that he was not in favor of using a long-acting beta agonist in the absence of inhaled steroid simultaneously due to the least theoretical risk of increased cardiac morbidity. Subsequent to the July 2014 VA examination, the Veteran’s aforementioned VA treatment records noted that his lungs were also clear to auscultation bilaterally with good bilateral inspiratory effort and there was no evidence of wheezes, rales, or rhonchi, and he denied shortness of breath. Thus, the Board finds that a rating of 100 percent for the Veteran’s service-connected respiratory disorder is not warranted. Furthermore, while the Veteran’s asthma required daily inhalational bronchodilator therapy and inhalational anti-inflammatory medication, including Spiriva, Symbicort, and Albuterol, such did not require the use of systemic (oral or parenteral) corticosteroids. In this regard, DC 6602 distinguishes between “inhalational” therapy and “systemic” therapy. Specifically, if no more than “inhalational” therapy is required, a 10 or 30 percent disability rating is assigned. If treatment requires “systemic” therapy, higher ratings are assigned depending on frequency of use. By its own language, DC 6602 indicates that bronchial asthma treated by inhalational therapy alone is rated differently than those requiring non-inhalational, systemic therapy. See LaPointe v. Nicholson, 21 Vet. App. 411 (2006). The U.S. Court of Appeals for Veterans Claims in LaPointe affirmed the Board’s finding that DC 6602 “requires, among other things, the systemic use of oral or parenteral, not inhaled, corticosteroids to qualify for a rating higher than 30 [percent].” See id. Although LaPointe is a non-precedential decision, it may be cited “for any persuasiveness or reasoning it contains.” See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Thus, the Veteran’s use of Spiriva, Symbicort, and Albuterol to treat his asthma does not equate to intermittent (at least three per year) courses and/or daily use of systemic (oral or parenteral) corticosteroids as specified in the 60 and 100 percent rating criteria under DC 6602. Furthermore, the Board notes that in April 2020, the Veteran’s representative argued that the Veteran’s respiratory disability was not adequately contemplated by the schedular criteria being used. Specifically, he argued that the February 2005 evaluation explained that PFTs may be invalid due to the Veteran’s past exposure to metalworking fluid since PFTs may be intact, but patients may have significant reactions to methacholine and to pulmonary exercise testing. Thus, he concluded that the Veteran’s respiratory disability was an exceptional case where the schedular evaluation was in adequate to fully capture his level of disability. In this regard, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008). This means that initially there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. Id. In this case, the medical evidence fails to show anything unique or unusual about the Veteran’s respiratory disability that would render the schedular criteria inadequate. Additionally, DCs 6604 and 6833 contemplate the use of exercise capacity and a March 2005 methacholine challenge study revealed no significant change of the Veteran’s FEV-1 and FVC, which disputed the February 2005 evaluation. Thus, the Board finds the representative’s argument is without merit and the schedular evaluation is adequate. Therefore, referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321; Thun, supra. In reaching the foregoing determination, the Board recognizes the Veteran’s sincerely held belief that his respiratory disability is more severe than as reflected by the currently assigned rating, and notes he is competent to describe his symptoms and their effects on his daily life and occupation. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such condition. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected respiratory disability; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Further, neither the Veteran nor his representative have raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). In reaching the foregoing decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against his claim, the benefit of the doubt doctrine is not applicable in the instant appeal and his initial increased rating claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to a TDIU is remanded. Pursuant to the March 2019 remand, the Veteran submitted an Application for Increased Compensation for Unemployability (VA Form 21-8940) in May 2019, reporting that he last worked for Eaton Corporation as an industrial electrician and that he last worked full-time on March 30, 2003. However, a June 2015 VA treatment record noted the Veteran’s complaints of occasional sharp pain in his chest while he was at work. Additionally, during his September 2015 VA back examination, the Veteran reported that from 2003 to present, he was a farmer and raised horses, and stayed active on his farm bailing hay and sawing wood. Thus, the Board finds that a remand is warranted for the Veteran to complete another VA Form 21-8940 in order for him to report his complete work history since March 2005, including his work as a farmer and his income from such work. The matters are REMANDED for the following action: Contact the Veteran and request that he complete and return a VA Form 21-8940, listing his complete employment and educational history, to include his work as a farmer and income, since March 2005. K. STANTON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Clark, 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.