Citation Nr: 21007614 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-54 167 DATE: February 10, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent prior to December 3, 2019, and in excess of 20 percent thereafter, for the Veteran’s service-connected thoracolumbar spine disability is denied. Entitlement to an initial disability rating in excess of 10 percent for the Veteran’s service-connected right knee disability is denied. Entitlement to an initial disability rating in excess of 10 percent for the Veteran’s service-connected left knee disability is denied. Entitlement to an initial disability rating in excess of 10 percent for the Veteran’s service-connected right ankle disability is denied. Entitlement to an initial disability rating in excess of 10 percent for the Veteran’s service-connected left ankle partial tear of the anterior talofibial ligament is denied. Entitlement to an initial compensable rating prior to December 3, 2019, and in excess of 30 percent thereafter, for the Veteran’s service-connected migraine headaches is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to December 3, 2019, the Veteran’s service-connected thoracolumbar spine disability resulted in forward flexion greater than 60 degrees; a combined range of motion greater than 120 degrees; and any muscle spasm or guarding did not result in abnormal gait or abnormal kyphosis. Since December 3, 2019, the Veteran’s service-connected thoracolumbar spine disability has not resulted in forward flexion of 30 degrees or less. For the entire appellate period, the Veteran’s service-connected thoracolumbar spine disability did not result in ankylosis of the thoracolumbar or entire spine, incapacitating episodes due to intervertebral disc syndrome, or any associated neurologic abnormalities. 2. Throughout the appellate period, there is no probative evidence establishing that the Veteran’s service-connected right knee disability has been manifested by ankylosis; recurrent subluxation or lateral instability; symptomatic dislocation or removal of the semilunar cartilage (meniscus); flexion limited to 30 degrees or less; extension limited to 10 degrees or more; impairment of the tibia or fibula; or genu recurvatum. 3. Throughout the appellate period, there is no probative evidence establishing that the Veteran’s service-connected left knee disability has been manifested by ankylosis; recurrent subluxation or lateral instability; symptomatic dislocation or removal of the semilunar cartilage (meniscus); flexion limited to 30 degrees or less; extension limited to 10 degrees or more; impairment of the tibia or fibula; or genu recurvatum. 4. Throughout the appellate period, the Veteran’s service-connected right ankle disability was manifested by pain productive of no worse than moderate limitation of ankle motion. 5. Throughout the appellate period, the Veteran’s service-connected left ankle partial tear of the anterior talofibial ligament disability was manifested by pain productive of no worse than moderate limitation of ankle motion. 6. Prior to December 3, 2019, the Veteran’s migraine headaches did not result in characteristic prostrating attacks, and thereafter, his migraine headaches did not result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial disability rating in excess of 10 percent prior to December 3, 2019, and in excess of 20 percent thereafter, for the Veteran’s service-connected thoracolumbar spine disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5237. 2. The criteria for entitlement to an initial disability rating in excess of 10 percent for the Veteran’s service-connected right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263. 3. The criteria for entitlement to an initial disability rating in excess of 10 percent for the Veteran’s service-connected left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263. 4. The criteria for entitlement to an initial disability rating in excess of 10 percent for the Veteran’s service-connected right ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274. 5. The criteria for entitlement to an initial disability rating in excess of 10 percent for the Veteran’s service-connected left ankle partial tear of the anterior talofibial ligament have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5270-5274. 6. The criteria for entitlement to an initial compensable rating prior to December 3, 2019, and in excess of 30 percent thereafter, for the Veteran’s service-connected migraine headaches have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8100. REFERRED At the March 2013 VA examination, there was an indication that the Veteran experienced erectile dysfunction as a result of service-connected disabilities. This matter is REFERRED to the agency of original jurisdiction for appropriate action, to include forwarding VA’s standardized claim form to the Veteran. 38 C.F.R. § 20.904(b) (formerly19.9(b)). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2007 to August 2013. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision issued by a Regional Office (RO) of the United States Department of Veterans Affairs (VA). The Veteran presented sworn testimony before the undersigned Veterans Law Judge at an August 2019 Board hearing. A copy of the hearing transcript has been associated with the Veteran’s electronic claims file. The claims were remanded by the Board in March 2020 and the record reflects substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The regulations pertinent to this decision have previously been provided to the Veteran in the September 2016 Statement of the Case and will not be repeated here, unless deemed appropriate to do so by the Board. Neither the Veteran nor his attorney has raised any issues with the duty to notify, the duty to assist, or the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Thus, the Board need not discuss any potential issues in this regard. In adjudicating the below claims, the Board has considered the December 3, 2019 examination report issued by a private examiner. In this report, the examiner assigned suggested disability ratings for the disabilities he evaluated, without any discussion of the relevant rating criteria. The Board assigns no weight to these suggested disability rating percentages, as the assignment of proper disability ratings is an adjudicatory function exclusively within the purview of the Board and it is not a medical determination to be decided by physicians. Increased Rating Claims Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). 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. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range of motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 1. Service-Connected Thoracolumbar Spine Disability The Veteran is currently receiving a 10 percent rating prior to December 3, 2019 and a 20 percent rating thereafter, for his service-connected thoracolumbar spine disability under 38 C.F.R. § 4.71a, Diagnostic Code 5237. To warrant a higher initial rating for a thoracolumbar spine disability under Diagnostic Code 5237, the evidence must show the following under 38 C.F.R. § 4.71a., General Rating Formula for Diseases and Injuries of the Spine: • unfavorable ankylosis of the entire spine (100 percent); • unfavorable ankylosis of the entire thoracolumbar spine (50 percent); • forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); • 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 (20 percent). For VA purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. Id., Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. The Veteran is not entitled to a separate or higher rating utilizing Diagnostic Code 5243 and the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes during the entire appellate period. The Veteran’s service-connected thoracolumbar spine disability has never resulted in incapacitating episodes, which is defined as “a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.” See id., Note (1). The November 2013 and September 2020 VA examiners found no signs of IVDS affecting the thoracolumbar spine. The December 3, 2019 private examiner stated that the Veteran had IVDS of the thoracolumbar spine with incapacitating episodes having a total duration of greater than 6 weeks in the past 12-month period. In the narrative statement describing the severity of the Veteran’s thoracolumbar spine disability, the private examiner did not identify any acute signs and symptoms that would require physician-prescribed bedrest, and did not indicate that the Veteran’s thoracolumbar spine disability required bedrest—yet alone for a duration greater than 6 weeks in the prior 12-month period. As the private examiner’s assessment was not based on the correct regulatory definition of incapacitating episodes, his statements regarding thoracolumbar spine IVDS are not probative in this appeal. The record contains no probative evidence demonstrating that the Veteran’s service-connected thoracolumbar spine disability was manifested by IVDS during the appellate period. A. Prior to December 3, 2019 Prior to December 3, 2019, the Veteran’s service-connected thoracolumbar spine disability was rated at 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 5237. On appeal, the Veteran seeks a higher initial disability rating. The Veteran was afforded a VA examination in March 2013 to assess the severity of his thoracolumbar spine disability. The Veteran reported that his thoracolumbar spine disability limited him to walking no more than 2 miles in 35 to 40 minutes. He did not report falls due to his spine condition; however, he reported stiffness, fatigue, spasms, and decreased motion. He reported back pain occurring 4 times per week and lasting for 4 hours and causing difficult walking and bending. Upon physical examination, the Veteran’s posture was normal, he walked with a normal gait, and his tandem gait was normal. His walking was steady and there was no evidence of muscle wasting or atrophy. Muscle spasms and tenderness were present in the parathoracolumbar muscles but did not result in an abnormal gait. Spinal contour was not preserved due to spinal tenderness. There was no guarding of movement. Examination showed no weakness; muscle tone and musculature were normal; there was no atrophy present in the limbs; and there was no ankylosis of the thoracolumbar spine. Range of motion testing showed full forward flexion of 90 degrees without pain; full extension of 30 degrees without pain; right lateral flexion of 20 degrees (pain started at 20 degrees); and left lateral flexion, right rotation, and left rotation each limited to 25 degrees (with pain starting at 25 degrees during each movement). Repetitive use testing was conducted and did not result in additional limitation of motion. Joint function of the spine was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The inspection of the spine revealed normal head position with symmetry in appearance. There was symmetry of spinal motion with normal curves of the spine. The Board has considered the Veteran’s service treatment records from the period immediately prior to the Veteran’s claim, and they demonstrate full range of motion of the thoracolumbar spine. See e.g., September 2012 and November 2012 service records. At the August 2019 Board hearing, the Veteran described his thoracolumbar spine as stiff and he explained that it occasionally needed to be popped back into place. He stated his low back pain was centered in the tailbone and that he could not sit or stand for long periods of time. This testimony, while credible and competent, does not indicate that the Veteran exhibited thoracolumbar spine impairment sufficient for a rating higher than 10 percent for the period prior to December 3, 2019. During the period prior to December 3, 2019, there is no evidence demonstrating that the Veteran’s service-connected thoracolumbar spine resulted in forward flexion limited to 60 degrees or less; a combined range of motion of the thoracolumbar spine of 120 degrees or less; or any ankylosis of the thoracolumbar or entire spine. While the March 2013 VA examiner stated that tenderness affected the spinal contour, there was no evidence of guarding, and muscle spasms were not severe enough to result in an abnormal gait or abnormal spinal contour. With these findings, the Veteran is not entitled to a disability rating in excess of his currently assessed 10 percent rating under Diagnostic Code 5237 for the period prior to December 3, 2019, as the evidence does not more closely approximate the rating criteria for a higher evaluation. Accordingly, the Veteran’s appeal is denied. B. Since December 3, 2019 In an October 2020 rating decision, the RO increased the Veteran’s rating for his service-connected thoracolumbar spine disability to 20 percent, effective December 3, 2019. On appeal, the Veteran seeks a higher initial disability rating. On December 3, 2019, the Veteran underwent a private examination of his thoracolumbar spine. The Veteran reported a dull, constant ache in the low back, worsened by prolonged walking, standing, sitting, using stairs, twisting, bending over, and long-distance driving. The pain improved with Motrin, heat, Bengay, Icy Hot, and stretching exercises. Range of motion testing of the thoracolumbar spine showed forward flexion limited to 43 degrees, extension limited to 5 degrees, right lateral flexion limited to 18 degrees, left lateral rotation limited to 16 degrees, right rotation limited to 12 degrees, and left rotation limited to 8 degrees. The private examiner stated there was a loss of normal lordotic curve in the lumbar spine and kyphoscoliosis in the thoracic spine. Tenderness was noted in the paraspinal muscles and iliolumbar ligaments of the lumbar spine. The Veteran’s gait was described as antalgic. The Veteran attended a VA examination in September 2020 to assess the severity of his service-connected thoracolumbar spine. The Veteran stated his low back was in chronic pain without flare-ups. He stated he could not bend, lift, or engage in prolonged standing or walking due to low back pain. His condition required the use of narcotic analgesics. Range of motion testing of the thoracolumbar spine showed forward flexion limited to 45 degrees, as well as extension, right and left lateral flexion, and right and left lateral rotation, each limited to 20 degrees. Pain was noted during each range of motion testing and resulted in functional loss. Passive range of motion testing could not be performed or was not medically appropriate. There was mild localized tenderness or pain on palpation in the T-12/S-1 paralumbar region. There was no evidence of pain with weightbearing or on non-weightbearing. Repetitive use testing showed no additional loss of function or range of motion after three repetitions. The examiner stated that repeated use over time would result in additional functional loss due to pain, manifested by forward flexion limited to 35 degrees; extension limited to 15 degrees; and right and left lateral flexion and right and left lateral rotation each limited to 20 degrees. The Veteran did not report flare-ups and there was no muscle spasm or guarding of the thoracolumbar spine. Muscle strength was 5/5 in all areas tested on both the left and right sides, without muscle atrophy. There was no ankylosis of the spine. The results of the December 3, 2019 private examination and the September 2020 VA examination are the only probative medical evidence in the period since December 3, 2019 and they do not show forward flexion of the thoracolumbar spine limited to the less than 35 degrees or any ankylosis. Since December 3, 2019, the Veteran’s thoracolumbar spine disability has not resulted in forward flexion limited to 30 degrees or less or any ankylosis of the thoracolumbar or entire spine. As such, the Veteran is not entitled to a higher initial rating during this time period, and his request for an initial disability rating in excess of 20 percent since December 3. 2019 for his service-connected thoracolumbar spine disability must be denied. C. Neurologic Abnormalities Pursuant to Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board must evaluate any objective neurologic abnormalities associated with the Veteran’s service-connected thoracolumbar spine disability, including, but not limited to, bowel or bladder impairment. Having fully reviewed the electronic claims file, and having weighed the conflicting evidence, the Board finds that the Veteran is not entitled to any separate ratings for neurological abnormalities associated with his service-connected thoracolumbar spine disability during the entire appellate period. At the March 2013 VA examination, the Veteran reported that he did not experience paresthesias; numbness; weakness in the spine, legs, or feet; bowel problems; or bladder problems. Physical examination of the thoracolumbar spine revealed no evidence of radiating pain on movement, no weakness, a negative straight leg raising test on the left and right, and Lasègue’s sign was negative. Neurological examination of the lower extremities showed motor function within normal limits; intact sensation to pinprick/pain, touch, position, vibration, and temperature on the left and right lower extremities; and all reflexes were normal in the lower extremities. Neurological examination of the lumbar spine showed no sensory deficits from L1 to L5 or S1. There was no lumbosacral weakness. Reflexes were normal in the lower extremities. The March 2013 VA examination did not reveal any neurological abnormalities associated with the thoracolumbar spine. At the August 2019 Board hearing, the Veteran testified that he experienced pain to the tailbone and numbness/tingling in the feet. The Veteran is competent to report neurological signs and symptoms felt through his senses; however, as a lay person he is not competent to diagnose these symptoms as a neurological disability, as he is without the medical training or expertise necessary to render diagnoses or opinions on medically complicated matters such as the presence of a clinically significant neurological disability. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). As such, his testimony regarding lower extremity neurological symptoms is of little probative value in this determination. At the December 3, 2019 private examination, the Veteran indicated that he experienced radiating pain into the bilateral hamstrings, left more than right, on a daily basis. There was no tingling or numbness. Upon physical examination, percussion of the bilateral buttocks did not reproduce any sciatic symptoms, straight leg raising and Bragard’s sign were negative on the right and positive on the left. There was decreased sensation to pinprick in the lateral aspects of the bilateral feet; deep tendon reflexes were trace, or only seen with reinforcement on the right, and absent on the left; and weakness was observed during toe walking and heel walking. The Veteran was assessed with lumbar radiculopathy with left-sided sciatica. At the September 2020 VA examination, no neurological abnormalities were noted. Reflex examination was normal in the left and right knees and ankles. Sensory examination (to light touch/dermatome testing) was normal in the left and right upper anterior thigh (L2), thigh/knee (L3), lower leg/ankle (L4/L5/S1) and the feet and toes (L5). Straight leg raising test was negative on the left and right. The Veteran did not exhibit radicular pain or any other signs or symptoms due to radiculopathy. The VA examiner found no other neurological abnormalities or findings related to a thoracolumbar spine disability, such as bowel or bladder problems or pathologic reflexes. In the assessment of neurological abnormalities, the Board affords more weight to the results of the September 2020 VA examination than the results of the December 3, 2019 private examination, because a facial review of the examination reports reveals that the VA examination was more comprehensive and thorough. For instance, the VA examiner identified all regions tested during sensation and reflex examination; whereas the private examiner did not. Moreover, any positive findings at the December 3, 2019 private examination were clearly acute or fleeting, as they were not repeated at the September 2020 VA examination, conducted only 9 months later. Having weighed the conflicting evidence, the Board finds the March 2013 and September 2020 VA examinations to be the most probative evidence of record and they do not demonstrate the presence of any neurologic abnormalities associated with the Veteran’s service-connected thoracolumbar spine disability. As such, the Board declines to award any separate ratings for neurologic disabilities on this basis. 2. Service-Connected Bilateral Knee Disabilities The Veteran is currently receiving separate 10 percent ratings for each knee based on limitation of motion under 38 C.F.R. § 4.71a, Diagnostic Code 5260. On appeal, he seeks higher initial ratings, to include the application of separate ratings. Initially, the Board notes that the Veteran has never experienced left or right knee ankylosis, impairment of the tibia and fibula in either lower extremity, or genu recurvatum in either knee. As such, Diagnostic Codes 5256, 5262, and 5263 are not for application in either knee. The Veteran’s service treatment records immediately prior to the period on appeal demonstrate no significant abnormalities in either knee. September 2012 and December 2012 service records demonstrated no effusion, no erythema, no misalignment, no crepitus, no tenderness, no instability (negative anterior/posterior draw sign, Lachman test showed no one plane anterior instability), a negative McMurray test, and normal motion in both knees. The Veteran attended a VA examination in March 2013 to assess the severity of his knee disabilities. The Veteran reported weakness, stiffness, lack of endurance, tenderness, and pain in the knees. He denied swelling, heat, redness, giving way, locking, deformity, drainage, effusion, subluxation, and dislocation in the knees. The Veteran reported flare-ups occurring once per week resulting in limited movement and an inability to stand or walk for prolonged periods. Physical examination revealed tenderness and crepitus in both knees, without signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, or subluxation. There was no genu recurvatum, locking pain, or ankylosis in either knee. Range of motion testing demonstrated normal flexion and extension in both knees (0 to 140 degrees). Repetitive use testing did not result in any additional limitation of motion. Joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use in either knee. The medial/lateral collateral ligament stability tests, the anterior/posterior cruciate ligament stability test, and the medial/lateral meniscus stability tests were all within normal limits for both knees. Radiographs were normal and did not show arthritis or degenerative changes in either knee. At the August 2019 Board hearing, the Veteran testified that both knees “give way” and both knees “lock up,” right worse than left. He also described a sensation of sharp pain in the knees with exercise, difficulty climbing stairs, and worsened symptoms during cold weather. The Veteran’s left knee was evaluated by a private examiner on December 3, 2019. The Veteran indicated that his left knee had a dull ache sharpened by prolonged walking, standing, using stairs, getting in and out of cars, squatting, and kneeling down. He reported that his left knee “gives out weekly and he as to catch himself from falling.” He indicated that his left knee “pops a lot” and is treated with Motrin, knee brace, and heat. Physical examination showed a mild valgus deformity (bone distal to joint is angled outward) with mild limitation of extension of the leg. Range of motion testing showed right knee flexion limited to 89 degrees and 0 degrees of extension; whereas left knee flexion was limited to 80 degree and extension was described as limited to negative 38 degrees. As explained in the October 2020 Supplemental Statement of the Case, the extension finding for the left knee is not probative because extension of negative 38 degrees is nonsensical and is not a valid range of motion for evaluation purposes. Oddly, the private examiner diagnosed the Veteran with moderate lateral instability with medical collateral ligament laxity in the left knee, even though no clinical instability testing was conducted during physical examination. Additionally, he diagnosed the Veteran with traumatic arthritis in the left knee, but this was not confirmed by radiograph. Moreover, the private examiner stated that radiographs performed after discharge showed degenerative joint disease in the left knee, but this is not observed in the record, and the radiograph findings from the March 2013 VA examination were normal and negative for degenerative changes. The Veteran attended a final VA examination in September 2020. The VA examiner diagnosed the Veteran with patellofemoral syndrome in both knees. Passive and active range of motion testing was normal in both knees (0 to 140 degrees), with pain. Mild localized tenderness or pain on palpation was observed in the patella for both knees. There was no pain with weightbearing or non-weightbearing, but crepitus was noted in both knees. Repetitive use testing was conducted and resulted in no additional limitation of motion or functional loss. The VA examiner opined that repeated use over time would result in pain, limiting motion to a range of 0 to 120 degrees in both knees. The Veteran did not report flare-ups. Muscle strength testing was 5/5 in all areas tested in both legs, without muscle atrophy. There was no ankylosis in either knee. Joint stability tests (anterior, posterior, medial, and lateral) were normal in both knees. The VA examiner found no evidence of a meniscal disability in either knee and stated that the Veteran did not have degenerative or traumatic arthritis in either knee, as demonstrated by the March 2013 radiographs. At the August 2019 Board hearing, the Veteran testified to subjectively experiencing a locking sensation in both knees. The Veteran has never reported this symptom to any of the private or VA examiners. In fact, he denied locking in the knees at the March 2013 VA examination. The rating criteria contemplate the presence of a locking sensation in the knee joint, but only in the presence of a semilunar (meniscal) disability. See 38 C.F.R. § 4.71a, Diagnostic Codes 5258 and 5259. The Veteran is not competent to attribute his subjective report of locking to a semilunar/meniscal disability, as he is without the medical training or expertise to opine on a complex medical matter. See Jandreau, supra. Service treatment records immediately prior to the appellate period contained negative McMurray’s tests in both knees—McMurray’s test evaluates for lateral and medical meniscus damage. The March 2013 VA examiner found no “locking pain” in either knee. While the December 3, 2019 private examiner issued a vague assertion that “twisting injuries to the left knee [during in-service physical training] put stress on the cartilage and meniscus resulting in tears,” this statement was not supported by any contemporaneous service treatment records documenting in-service meniscal tears. In fact, as noted above, the Veteran’s service records contained negative McMurray’s tests for both knees close in time to the appellate period. The December 3, 2019 private examiner’s statement is contrary to the contemporaneous service records and is entitled to no probative value regarding the presence of a meniscal disability. Moreover, the December 3, 2019 private examiner did not conduct any testing for meniscal disabilities in the left knee. The September 2020 VA examiner indicated that the Veteran did not have any meniscal disabilities in either knee. As the preponderance of the evidence weighs against the presence of a semilunar/meniscal disability in either knee during the appellate period, the Veteran is not entitled to separate ratings under Diagnostic Code 5258 or 5259 for either knee. At the August 2019 Board hearing, the Veteran testified to subjective instability in the knees. The Veteran is competent to report that he experiences a sensation of his knees giving way as this is within the realm of his personal perception. See Layno, 6 Vet App. at 469; see also English v. Wilkie, 30 Vet. App. 347 (2018)(suggesting that lay evidence of knee instability is generally competent). However, the Veteran’s testimony regarding the frequency and severity of his claimed bilateral knee instability is not credible given its inconsistency with the other evidence in the appellate record. Service treatment records immediately prior to the appellate period showed no instability in either knee, as anterior and posterior drawer signs were not present, and Lachman’s test did not demonstrate one plane anterior instability. See September 2012 and December 2012 service records. At the March 2013 VA examination, the Veteran did not report a “giving way” sensation in either knee, and all objective joint stability tests were normal in both knees. Similarly, all joint stability tests conducted at the September 2020 VA examination were normal for both knees. The only evidence to support the Veteran’s lay contentions were a diagnosis of left knee instability issued by the December 3, 2019 private examiner; however this diagnosis is not probative as it was based exclusively on the Veteran’s lay statements regarding instability, which the Board has deemed as not credible based on the current evidentiary record. The December 3, 2019 private examiner did not conduct any objective instability testing in either knee to support his diagnosis. This is not an instance where the Board is negating the probative value of the Veteran’s lay statements simply because they are unaccompanied by supporting contemporaneous and probative medical evidence. To the contrary, the most probative medical evidence of record, to include the September 2012 and December 2012 service records, the March 2013 VA examination, and the September 2020 VA examination, are inconsistent with and contradict the severity of the Veteran’s claimed bilateral instability as presented in his lay statements and testimony issued during the course of these proceedings. See Madden v. Gober, 125 F.3d 1477, 1481 (1997) (finding the Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence). Accordingly, these statements are afforded little evidentiary weight in this determination, and there is no other probative information to support a rating under Diagnostic Code 5257 in either knee during the appellate period. In the October 2020 rating decision, the RO assigned separate 10 percent ratings for each knee based on limitation of motion and 38 C.F.R. § 4.59. The Board has fully reviewed the electronic claims file, and at no time during the appellate period has the Veteran exhibited left or right knee flexion limited to 30 degrees or less; or left or right knee extension limited to 10 degrees or greater. As noted above, right knee flexion was never limited to less than 89 degrees, left knee flexion was never limited to less than 80 degrees, and excluding the nonprobative December 3, 2019 left knee extension findings, extension was 0 in the left and right knee during all range of motion testing during the appellate period. Accordingly, the Veteran is not entitled to a separate compensable rating in either knee based on limitation of extension under Diagnostic Code 5261 during the appellate period, and the evidence does not support an initial rating in excess of 10 percent in either knee based on limitation of flexion under Diagnostic Code 5260 during the appellate period. While the December 3, 2019 private examiner diagnosed the Veteran with left knee arthritis, this was based on the examiner’s inaccurate statement that post service radiographs showed degenerative changes in the left knee. To this end, the private examiner’s statement is inaccurate and entitled to no probative value. All other evidence in the appellate period—to include the March 2013 radiographs—weighs against the conclusion that the Veteran’s left and right knee disabilities have been manifested by arthritis during the appellate period. Accordingly, Diagnostic Code 5003 is not for consideration. Neither the Veteran nor his attorney has identified or argued that any further diagnostic codes should be considered in this appeal. 3. Service-Connected Right Ankle Disability and Left Ankle Partial Tear of the Anterior Talofibial Ligament The Veteran is currently receiving a 10 percent rating for his service-connected right ankle disability and a 10 percent rating for his service-connected left ankle partial tear of the anterior talofibial ligament. These disabilities are rated under Diagnostic Code 5271, 38 C.F.R. § 4.71a. The Board declines to apply Diagnostic Code 5262 for impairment of the fibula to the Veteran’s left ankle disability, as the Veteran’s disability is ligamentous and not bony in nature. There is no malunion of the Veteran’s left fibula; thus, it is more appropriate to utilize Diagnostic Code 5271 for the Veteran’s left ankle disability, as the anterior talofibial ligament is a ligament in the ankle and this code contemplates the Veteran’s most predominant symptom, limitation of motion resulting from ankle impairment. At no point during the appellate period has the Veteran’s left or right ankle disabilities been manifested by ankylosis of the ankle; ankylosis of the subastragalar or tarsal joint; malunion of the os calcis or astragalus; or an astragalectomy. As such, Diagnostic Codes 5270, 5272, 5273, and 5274 are not for application. Under Diagnostic Code 5271, a higher rating is warranted if the Veteran’s ankle results in marked limitation of motion. The term “marked” is not defined in the Rating Schedule; however, guidance from the Veterans Benefits Administration (VBA) M21-1 Adjudication Procedures Manual states that marked limitation of ankle motion is present when there is less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. See VBA Manual M21-1, III.iv.4.A.6.l. The M21-1 is not binding on the Board and, to rely on the M21-1, the Board must conduct an independent analysis before determining whether the provisions may be relied upon as a factor to support its decision. Overton v. Wilkie, 30 Vet. App. 257 (2018). The Board finds that the M21-1 may be relied upon as a factor based on VA’s proposed revisions to Diagnostic Code 5271 made in February 2003 and August 2017. See 68 Fed. Reg. 6998 (Feb. 11, 2003); 82 Fed. Reg. 35719 (Aug. 1, 2017). In February 2003, VA hired an outside consultant, who convened a panel of non-VA specialists, to review the portion of the rating schedule dealing with the musculoskeletal system to formulate recommendations. VA proposed to adopt many of the recommendations, including defining “moderate” and “marked” similarly to the current M21-1 guidelines to ensure consistent evaluations. See 68 Fed. Reg. at 7018. In August 2017, VA proposed to redefine “moderate” and “marked” exactly as listed in the M21-1 and the proposal noted that “as VA currently uses these standards to define marked and moderate, this change is intended as a clarification of current policy and would ensure consistent application of these criteria among rating personnel.” See 82 Fed. Reg. at 35723. The changes described in the August 2017 proposed rule were adopted in a final rule that goes into effect on February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The Veteran attended a VA examination in March 2013 to assess his ankle disabilities. He reported stiffness, giving way, locking, tenderness, and pain in the ankles. He did not report experiencing weakness, swelling, heat, redness, lack of endurance, fatigability, deformity, drainage, effusion, subluxation, or dislocation in the ankles. He described flare-ups of limited standing and walking occurring twice per month and lasting for two days. His ankle disabilities were treated with Motrin and Tramadol. Physical examination showed tenderness in both ankles, but no signs of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, guarding of movement, malalignment, drainage, or subluxation. There were no deformities or ankylosis in either ankle. Range of motion testing was normal and showed dorsiflexion from 0 to 20 degrees in both ankles and plantar flexion of 0 to 45 degrees in both ankles. There was no additional limitation of motion following repetitive use testing, and the joint function was not additionally limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use in either ankle. At the August 2019 Board hearing, the Veteran testified that he experienced a pronounced stabbing pain in the left ankle. He denied swelling in either ankle. He stated that pain stayed in the ankle and was exacerbated by cold weather or increased physical activity. He stated he had a rolling sensation in the left ankle. He reported the use of a cane, but clarified that his cane assisted him with walking due to a variety of health conditions, including his ankles. This testimony, while credible and competent, did not indicate any limitation of motion in the ankles, and thus, it is of minimal probative value in this appeal. The Veteran’s left ankle disability was examined by a private examiner on December 3, 2019. The Veteran reported sharp intermittent pain in the left ankle during exercise and with prolonged walking or standing, particularly on uneven or hard surfaces. The left ankle rolled over frequently with the foot turning inward and the ankle turning outward. The Veteran reported having to catch himself from falling. The Veteran indicated that he treated his left ankle with Motrin, heat, and an ankle brace. Physical examination of the left ankle showed tenderness to palpation below the lateral malleolus and limitation of motion with movements. Range of motion testing showed right ankle plantar flexion limited to 29 degrees; right ankle dorsiflexion limited to 18 degrees; left ankle plant flexion limited to 14 degrees; and left ankle dorsiflexion limited to 15 degrees. The Veteran attended a final VA examination in September 2020 to assess his service-connected ankle disabilities. The Veteran generally reported pain in the right ankle, and he denied flare-ups. The Veteran reported that his ankles prevented him from running and climbing using the right ankle. Active and passive range of motion testing showed right ankle dorsiflexion limited to 15 degrees; right ankle plantar flexion limited to 35 degrees; and normal left ankle dorsiflexion (0 to 20 degrees) and normal left ankle plantar flexion (0 to 45 degrees). See also 9/28/20 addendum. The VA examiner noted pain during range of motion testing of the right ankle. There was mild local tenderness or pain on palpation to the medial and lateral joints of the right ankle. There was no evidence of pain with weightbearing or non-weightbearing in either ankle. Repetitive use testing was performed and did not result in additional limitation of motion in either ankle. The VA examiner stated that repeated use over time would result in an additional 5 degrees of limitation during right ankle plantar flexion due to pain. Muscle strength testing was normal in both ankles, without muscle atrophy. There was no ankylosis in either ankle. There was no objective evidence of instability in either ankle. The Board finds the Veteran’s lay reports of ankle instability to be incompatible with the medical evidence of record. At the March 2013 and September 2020 VA examinations, there was no objective evidence of instability in either ankle. While the December 3, 2019 private examiner diagnosed the Veteran with left ankle instability based on the Veteran’s lay reports, he did not conduct any instability testing in the left ankle to support his conclusion. While the Board is aware of the Veteran’s complaints of pain and instability in the ankles, those symptoms are not shown by competent, objective evidence to have been so disabling as to warrant a higher 20 percent rating for limitation of motion of either ankle under Diagnostic Code 5271. In this case, there is no objective, quantifiable evidence of additional range of motion loss due to pain on use, as alleged by the Veteran, that would equate to functional limitation to the extent that a higher rating was warranted under Diagnostic Code 5271. See DeLuca, 8 Vet. App. at 207 ; see also Mitchell, 25 Vet. App. at 32. Applying the diagnostic code criteria to the above findings, it is concluded the Veteran’s left and right ankle disabilities are consistent with his currently assigned 10 percent ratings under Diagnostic Code 5271 for the entire appellate period. None of medical or lay evidence established that the Veteran’s left or right ankle disabilities resulted in marked impairment demonstrated by less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion in either ankle during the appellate period. Accordingly, the Veteran’s appeal seeking initial ratings in excess of 10 percent for his service-connected right ankle disability and his service-connected left ankle partial tear of the anterior talofibial ligament must be denied. 4. Service-Connected Migraine Headaches In the November 2013 rating decision, the Veteran was awarded service connection for migraine headaches and assigned a noncompensable rating, effective August 31, 2013. The Veteran filed a timely Notice of Disagreement with the assigned rating, and in an October 2020 rating decision, the RO increased the Veteran’s rating for his service-connected migraine headaches to 30 percent, effective December 3, 2019. The Veteran seeks ratings higher than those in effect for the entire appellate period. The Veteran’s migraine headaches are rated using Diagnostic Code 8100. See 38 C.F.R. § 4.124a. Under this diagnostic code, a noncompensable rating is warranted for migraines with less frequent attacks. A 10 percent rating is warranted for migraines with characteristic prostrating attacks averaging one in 2 months over the last several months. A 30 percent rating is warranted for migraines with characteristic prostrating attacks occurring on an average once a month over last several months. A maximum 50 percent rating is warranted for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. The rating criteria of Diagnostic Code 8100 are considered successive, meaning that a claimant cannot fulfill the criteria of the higher rating without fulfilling those of the next lower rating. Johnson v. Wilkie, 30 Vet. App. 245, 252 (2018). This renders 38 C.F.R. §§ 4.7 and 4.21 inapplicable. Johnson, 30 Vet. App. at 252. The phrase “characteristic prostrating attacks” is used in the criteria corresponding to 10 percent and 30 percent ratings under Diagnostic Code 8100 to describe the nature and severity of migraines, but it is not defined in the regulation. The phrase “characteristic prostrating attacks” means migraine attacks that typically produce powerlessness or a lack of vitality. See Johnson, 30 Vet. App. at 252. In other words, the term “prostrating” takes on its plain meaning of “lacking in vitality or will: powerless to rise: laid low.” Id. (citation omitted). The rating criteria for a 50 percent rating contain several undefined phrases. The descriptive phrase “very frequent” connotes a frequency at least greater than once a month, as is required by the rating criteria corresponding to a lesser 30 percent rating. Johnson, 30 Vet. App. at 253. The phrase “completely prostrating” generally means that the migraines attack must render the veteran entirely powerless. Id. The completely prostrating attacks must also be “prolonged,” which is defined as “to lengthen in time: extend duration: draw out: continue, protract.” Id. (internal citation omitted). Lastly, the 50 percent rating criteria requires that the very frequent completely prostrating and prolonged attacks be “productive of severe economic inadaptability.” Productive means “producing” or “capable of producing,” and, with regard to severe economic inadaptability, nothing in Diagnostic Code 8100 requires that the claimant be completely unable to work in order to qualify for a 50 percent rating. Pierce v. Principi, 18 Vet. App. 440, 445-46 (2004). The Board notes that the ameliorative effects of medication have not been considered in the adjudication of the Veteran’s initial increased rating claim for his service-connected migraine headaches. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). A. Prior to December 3, 2019 Prior to December 3, 2019, the Veteran was receiving a noncompensable rating for his service-connected migraine headaches. On appeal he seeks a higher noninitial rating. The Veteran attended a VA examination in March 2013 to assess the severity of his migraine headaches. The Veteran described his migraines as “pain, cramps at the top of the head.” He reported that he experienced headaches twice per month, with each headache lasting 5 hours. His headaches resulted in sensitivity to light and sounds requiring self-prescribed bed rest. Physical examination of the head was normocephalic and atraumatic. The cranial nerves II to XII were intact and coordination was within normal limits. At the August 2019 Board hearing, the Veteran testified that his migraines were manifested by sensitivity to light and required medication. His headaches occasionally resulted in nausea and vomiting. He testified that his headaches occurred twice per month on average, unless he was experiencing stress, and were of gradual onset. He stated that he took medication when a headache occurred, and the migraine typically dissipated within one or two hours; however, it could take longer for complete relief, and sometimes the medication was ineffective. He reported a low-grade non-migraine headache during periods of sinusitis. He also stated that his migraines have caused him to miss work, but he did not describe the frequency of such occurrences. The record contains no other clinical evidence of headaches during the relevant period prior to December 3, 2019. Service treatment records dated immediately prior to the appellate period do not demonstrate the presence of characteristic prostrating attacks of headache pain. While the Veteran indicated that he experienced two migraine headaches per month on average during the period prior to December 3, 2019, he did not describe his headaches as characteristically prostrating (i.e., resulting in extreme exhaustion or powerlessness). The Veteran did not indicate that his migraines impacted his ability to perform activities of daily living, and there is no evidence during the relevant time frame demonstrating the Veteran’s migraines resulted in powerlessness or lack of vitality. The Veteran has submitted a report of a private examination conducted on December 3, 2019, which assessed the severity of the Veteran’s migraine headaches. Due to alternating use of past and present grammar, it is unclear whether the private examiner was describing the Veteran past or present symptoms of migraines. The private examiner stated that the Veteran’s migraines were throbbing in nature, manifested by nausea, vomiting, photosensitivity, phonosensitivity, dizziness, and blurry vision. The migraines were described as occurring at least twice per week and lasting at least 3 hours in duration. The private examiner stated that the Veteran had to use sick leave during his severe prostrating headaches and had to take Motrin and go into a dark quiet room to alleviate his headaches. To the extent that the private examiner was purporting to describe the Veteran’s headaches prior to the date of the examination, his reports are not credible, as the number of headaches experienced per month and the reported symptoms are of much greater severity that those documented at the November 2013 VA examination or described in the Veteran’s August 2019 Board hearing testimony. For instance, the Veteran had never previously indicated that his headaches caused dizziness or blurry vision or required the use of a dark quiet room for alleviation. Given that this private examination report is inconsistent with the other evidence of record, to include the Veteran’s own description of his headaches at the Board hearing, the Board affords this private examination very little probative value in assessing the proper disability rating for the period prior to December 3, 2019. See Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (finding that in weighing the credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). In light of the above analysis, the evidence preponderates against a finding that the Veteran has satisfied the rating criteria sufficient to support a higher 10 percent disability rating during the period prior to December 3, 2019. Having failed to satisfy the rating criteria for a 10 percent evaluation, the Veteran has also failed to satisfy the rating criteria for a higher rating of 30 percent or 50 percent during the period prior to December 3, 2019 due to the successive nature this regulation. To this end, the Veteran’s service-connected migraine headaches are appropriately rated as noncompensable during the period prior to December 3, 2019, and the Veteran’s appeal seeking a higher initial disability rating during this time period must be denied. B. Since December 3, 2019 An October 2020 rating decision increased the rating for the Veteran’s service-connected migraine headaches to 30 percent, effective December 3, 2019. On appeal, the Veteran seeks a higher initial rating. On December 3, 2019, the Veteran underwent an examination with a private physician to assess the severity of his service-connected migraine headaches. The private examiner stated that the Veteran’s migraines were throbbing in nature and associated with nausea, vomiting, photosensitivity, phonosensitivity, and blurry vision. The Veteran’s headaches were reported as occurring at least two times per week and lasting for at least three hours. It was reported that the Veteran would take sick leave during his headaches, take a Motrin, and sit in a dark quiet room. As noted above, it is unclear from the December 3, 2019 examination report whether the private examiner was describing the Veteran’s headache symptoms prior to or at the time of the examination. Nevertheless, the Board has already determined that the findings described in the private examination are not probative for the period prior to the December 3, 2019. Thus, the findings of the private examination can only be used to rate the Veteran’s disability as of the date of the examination forward. As such, it was appropriate for the RO to increase the Veteran’s rating to 30 percent on the date of this private examination, the date it was first factually ascertainable that the Veteran’s headaches had worsened in severity sufficient to satisfy the 30 percent rating criteria. The December 3, 2019 examination showed that the Veteran’s migraine headaches occurred more than once per month and were accompanied by characteristic prostrating attacks manifested by dizziness and blurry vision, and requiring the use of a dark quiet room for alleviation. The private examiner’s description of the Veteran’s migraine headaches did not indicate that they were completely prostrating and resulted in prolonged attacks productive of severe economic inadaptability. The Veteran’s migraines were described as dissipating within hours and thus they could not be considered “prolonged” under the plain language meaning of the word. While it was noted that the Veteran would use sick leave during his most severe migraine headaches, the private examiner did not explain how often this would occur, and there was no indication that the Veteran’s migraines resulted in a severe economic or financial impact to the Veteran, such as extreme loss of pay or a demotion. Accordingly, the December 3, 2019 private examination report does not support a higher 50 percent rating under Diagnostic Code 8100. The Veteran was afforded an additional VA examination in September 2020 to assess the severity of his service-connected migraine headaches. The Veteran described his headaches as throbbing. He reported the use of Naprosyn and Imitrex to treat his headaches. The VA examiner stated that the Veteran’s headaches were manifested by pulsating or throbbing head pain, pain on both sides of the head, pain worsened by physical activity, nausea, sensitivity to light and sound, and changes in vision (such as scotoma, flashes of light, or tunnel vision). The VA examiner stated that the Veteran’s characteristic prostrating attacks of headache pain occurred more frequently than once per month, and lasted less than one day. See also 9/28/20 addendum opinion. The VA examiner stated that the Veteran did not have very prostrating and prolonged attacks of migraines productive of severe economic inadaptability. None of the medical or lay evidence since December 3, 2019 has demonstrated that the Veteran’s service-connected migraines have been of such a severity that they result in very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability sufficient to warrant a higher 50 percent rating. As the evidence preponderates against the claim, the Veteran’s appeal seeking an initial disability rating in excess of 30 percent for his service-connected migraine headaches during the period since December 3, 2019 must be denied. REASONS FOR REMAND In the November 2014 Notice of Disagreement, the Veteran alleged entitlement to a TDIU due to his service-connected disabilities. In September 2016, the RO mailed the Veteran correspondence indicating that they could not accept his Notice of Disagreement alleging entitlement to a TDIU because the issue was not addressed in an underlying rating decision. However, this was error, as entitlement to a TDIU is part and parcel with the Veteran’s increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The Veteran’s statement in the November 2014 Notice of Disagreement reasonably raised entitlement to a TDIU. However, as the record currently stands, there is insufficient information to adjudicate entitlement to a TDIU, such as the Veteran’s employment and education history. The Veteran must be provided with Veterans Claims Assistance Act (VCAA) notice regarding the evidence necessary to substantiate a claim of entitlement to a TDIU, as well as an additional opportunity to complete a VA form 21-8940, Application for Increased Compensation Based on Unemployability. The RO should also undertake reasonable efforts to obtain a completed VA form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits, for all employers identified by the Veteran in the VA form 21-8940, if appropriate, as well as any other evidentiary development that the RO deems as warranted. The matter is REMANDED for the following action: 1. Send the Veteran a VCAA notice letter informing him of the evidence required to substantiate his claim for a TDIU. He should also be sent and asked to complete a VA form 21-8940, Application for Increased Compensation Based on Unemployability. 2. Thereafter, if the Veteran submits a completed VA form 21-8940, proceed with any further evidentiary development deemed necessary, to include sending VA form 21-4192 to the Veteran’s listed previous employers, if appropriate. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Galante 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.