Citation Nr: 21008483 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-43 857 DATE: February 17, 2021 ORDER An increased rating greater than 10 percent for asbestosis is denied. FINDING OF FACT The Veteran’s service-connected asbestosis is at times productive of shortness of breath, chest tightness, coughing with white sputum, fatigue, use of prescription oral inhalers, difficulty exercising, and limitations in daily activities with frequent breaks necessary. However, his asbestosis is NOT productive of FVC of 65 to 74 percent predicted or worse; or DLCO (SB) of 56 to 65 percent predicted or worse; or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation or worse; or cor pulmonale; or pulmonary hypertension; or the necessity for outpatient oxygen therapy. CONCLUSION OF LAW The criteria have not been met for an increased rating in excess of 10 percent for asbestosis. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.21, 4.96, 4.97, Diagnostic Code 6833. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1967 to May 1975 in the U.S. Air Force. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from October 2012 and June 2013 rating decisions issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In August 2018 and January 2019, the Board remanded the appeal for further development. This case has since been returned to the Board for appellate review, after the AOJ substantially complied with the Board’s remand orders. Stegall v. West, 11 Vet. App. 268, 271 (1998). I. VA’s Duty to Notify and Assist VA’s duty to notify under the Veterans Claims Assistance Act of 2000 (VCAA) was satisfied by VA letters to the Veteran dated in July 2011, April 2013, and May 2019. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159 (2019). These letters advised the Veteran of the information and evidence necessary to substantiate his increased rating claim. With respect to the duty to assist, subsequent to the ameliorative August 2018 and January 2019 Board remands, neither the Veteran nor his representative has advanced any procedural arguments in relation to VA’s duties to notify and assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that the Board has an obligation to read filings in a liberal manner, but that obligation does not require the Board to “search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In fact, in a May 2019 duty to assist response from the Veteran, the Veteran advised he had no more information or evidence to submit relative to the appeal. The Board will address one salient aspect of the duty to assist in the present case. During the course of the appeal, the Veteran mentioned the existence of additional private medical records, including pulmonary function tests (PFTs) with Southwest Pulmonary Associates and E.O.M., P.A. In this regard, VA is required to make reasonable efforts to obtain relevant private medical records. 38 U.S.C. § 5103A(b); 38 C.F.R. § 3.159(c)(1). The Federal Circuit Court has also held that the duty to assist for VA to obtain private records applies to relevant or potentially relevant records. See Golz v. Shinseki, 590 F.3d 1317, 1320 (Fed. Cir. 2010); McGee v. Peake, 511 F.3d 1352, 1357 (Fed. Cir 2008). And VA’s duty to assist may arise when a claimant simply refers to pertinent private medical examinations or private treatment. Ivey v. Derwinski, 2 Vet. App. 320 (1992). It follows that in the previous August 2018 and January 2019 Board remands, the Board instructed the AOJ to attempt to obtain these additional private treatment records pertinent to the increased rating claim on appeal. The AOJ followed the Board’s instructions and sent the Veteran a May 2019 development letter asking that he complete and return enclosed medical authorizations (VA Forms 21-4142 and 21-4142a). The purpose was for VA to obtain any outstanding private treatment records from Southwest Pulmonary Associates and E.O.M., P.A., if the Veteran authorized VA to secure them. For private records, under 38 U.S.C. § 5103A(b)(1), VA’s duty to assist is triggered if the claimant identifies records of relevant medical treatment or examination and if the claimant furnishes sufficient information to identify and locate such records. That is, a claimant is required to cooperate fully with VA’s efforts and, if necessary, authorize the release of existing records in an acceptable form. 38 C.F.R. § 3.159(c)(1). Here, the Veteran failed to complete and return the enclosed medical authorizations (VA Forms 21-4142 and 21-4142a) so that VA could secure any outstanding private treatment records from Southwest Pulmonary Associates and E.O.M., P.A. On this point, the Court recently reaffirmed that the duty to assist is not a one-way street. Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019). The duty to assist "does not encompass 'a duty to prove a claim with the claimant only in a passive role.'" Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc). A claimant cannot remain passive when he or she has relevant information to support the claim. See Wamhoff v. Brown, 8 Vet. App. 517 (1996). If a claimant wishes help, he or she cannot passively wait in those circumstances where his / her own actions are essential in obtaining the putative evidence. Hayes v. Brown, 5 Vet. App. 60, 68 (1993). Once again, under VA regulation and caselaw, a claimant is required to cooperate fully with VA’s reasonable efforts to obtain relevant records. 38 C.F.R. § 3.159(c)(1). In the present case, despite VA’s efforts, neither the Veteran nor his representative cooperated with VA’s attempts to secure additional private medical evidence from Southwest Pulmonary Associates and E.O.M., P.A. In summary, the Board is satisfied the AOJ has made reasonable efforts to obtain these private medical records, such that no further effort is required. II. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. 38 C.F.R. § 4.7. The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds, Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). However, the Board can discount lay evidence in its role as factfinder if it weighs the evidence, finds the clinical evidence more probative, and provides an explanation with supporting reasons or bases. English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). The Veteran is uniquely suited to describe the severity, frequency, and duration of his service-connected asbestosis, in terms of shortness of breath, fatigue, coughing, visits to a physician for exacerbations, use of medications, among other observable signs and symptoms. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (lay person competent in describing asthma symptoms); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994) (lay person competent to testify to lack of symptoms of difficulty breathing prior to service, continuous symptoms of breathing difficulty after service, and that he was given medication for his breathing problems). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran filed a claim for an increased rating for his asbestosis on March 16, 2011. The Veteran contends that he is entitled to a rating greater than 10 percent for his respiratory disability. At times, he reports shortness of breath, chest tightness, coughing with white sputum, fatigue, use of prescription oral inhalers, difficulty exercising, and limitations in daily activities with frequent breaks necessary. When service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board must consider whether there have been times when his asbestosis disability has been more severe than at others, and rate it accordingly. “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.” Hart, 21 Vet. App. at 509. Thus, the Board will focus on the evidence of record dated from March 2010 to the present, in adjudicating the increased rating claim. However, the Board is also cognizant that 38 C.F.R. §§ 4.1 and 4.2 and 4.41 require VA adjudicators to view each disability “in relation to its history” to “accurately reflect the elements of disability present,” respectively. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012); see also Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009) (discussing 38 C.F.R. §§ 4.1 and 4.2 and stating that, although the veteran was “only entitled to disability compensation for the period after … the date he filed his original claim for benefits,” VA regulations still require the disability to be “evaluated in light of its whole recorded history”). Therefore, the Board has also considered and reviewed the Veteran’s entire history for his asbestosis disability when assigning a disability evaluation in the present case. 38 C.F.R. § 4.1. The Veteran’s service-connected asbestosis is rated as 10 percent disabling under Diagnostic Code 6833 (asbestosis). 38 C.F.R. § 4.97 (2019). This 10 percent rating has been effective since March 16, 2011. Respiratory disorders are rated under Diagnostic Codes 6600 through 6817 and 6822 through 6847. Ratings under those diagnostic codes will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher rating only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a) (2019). Interstitial lung diseases, such as asbestosis, are rated in accordance with the General Rating Formula of Interstitial Lung Disease. 38 C.F.R. § 4.97, Diagnostic Code 6833. Under this Formula, a 10 percent rating is warranted for Forced Vital Capacity (FVC) of 75 to 80 percent predicted, or DLCO (SB) of 66 to 80 percent predicted. A 30 percent rating is warranted for FVC of 65 to 74 percent predicted, or DLCO (SB) of 56 to 65 percent predicted. A 60 percent rating is warranted for 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 is warranted for FVC of 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. See 38 C.F.R. § 4.97, Diagnostic Code 6833 (2019). Effective October 6, 2006, VA added provisions that clarify the use of pulmonary function tests (PFTs) in evaluating respiratory conditions. See 71 Fed. Reg. 52459 (Sept. 6, 2006) (codified at 38 C.F.R. § 4.96(d)). That is, 38 C.F.R. § 4.96(d) was added to the Rating Schedule, applicable to all applications for benefits received by VA on or after October 6, 2006. In the present case, the Veteran filed his increased rating claim in March 2011, subsequent to the effective date of the change. Therefore, these amendments are applicable to his increased rating claim on appeal. The amended regulation 38 C.F.R. § 4.96(d), entitled “Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845,” has seven subsections. 38 C.F.R. § 4.96(d)(1)-(7) (2019). The provisions of 38 C.F.R. § 4.96(d)(1)-(7) specifically apply here for Diagnostic Code 6833 for the Veteran’s service-connected asbestosis. As set forth under 38 C.F.R. § 4.96(d)(1)-(7): (1) PFTs are required except: (i) when the results of a maximum exercise capacity test are of record and are 15 ml/kg/min or less; if a maximum exercise capacity test is not of record, evaluation is based on alternative criteria; (ii) when pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed; (iii) when there have been one or more episodes of acute respiratory failure; or (iv) when outpatient therapy oxygen is required. 38 C.F.R. § 4.96(d)(1). (2) If the DLCO (SB) test is not of record, evaluation is based on alternative criteria as long as the examiner states why the test would not be useful or valid in a particular case. 38 C.F.R. § 4.96(d)(2). (3) When the PFTs are not consistent with clinical findings, evaluation is based on the PFTs unless the examiner states why they are not a valid indication of respiratory functional impairment in a given case. 38 C.F.R. § 4.96(d)(3). (4) Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator tests should not be done and states why. 38 C.F.R. § 4.96(d)(4). (5) When evaluating based on PFTs, post-bronchodilator results are used in applying evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case the pre-bronchodilator values are used for rating purposes. 38 C.F.R. § 4.96(d)(5). (6) When there is a disparity between the results of different PFT FEV-1 and FVC results, so that the level of evaluation would be different depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is used. 38 C.F.R. § 4.96(d)(6). (7) Finally, if the FEV-1 and the FVC are both greater than 100 percent, a compensable evaluation based on a decreased FEV-1/FVC ratio should not be assigned. 38 C.F.R. § 4.96(d)(7). Upon review, the evidence of record does not support an increased rating greater than 10 percent for asbestosis. 38 C.F.R. § 4.7. The claim is denied. The probative medical and lay evidence of record fails to demonstrate that the Veteran meets the criteria necessary for a higher rating. In particular, the Veteran did not exhibit a FVC of 65 to 74 percent predicted or worse; or DLCO (SB) of 56 to 65 percent predicted or worse; or maximum exercise capacity of 15 to 20 ml/kg/min oxygen consumption with cardiorespiratory limitation or worse; or cor pulmonale; or pulmonary hypertension; or the necessity for outpatient oxygen therapy. See again 38 C.F.R. § 4.97, Diagnostic Code 6833. Absent evidence of the above signs and symptoms and test findings, he is not entitled to a rating higher than 10 percent. In particular, the following medical and lay evidence of record does not support a rating greater than 10 percent: A September 2010 VA primary care physician note observed the Veteran’s lungs were clear to auscultation with respirations normal. The impression of a March 2011 computed tomography (CT) scan of the chest included “[m]inimal” pulmonary emphysema, among other findings. The impression of a February 2012 CT scan of the lungs included “[m]inimal to mild emphysematous changes.” A July 2012 VA primary care note found no change in exercise tolerance. The Veteran’s lungs were clear to auscultation. An August 2012 VA sedation note assessed the Veteran’s lungs were clear to auscultation. He exhibited no shortness of breath. At an October 2012 VA respiratory examination, the Veteran reported upper chest congestion at times, but otherwise had no cardiopulmonary symptoms. He was taking no inhaled breathing medications or oral bronchodilators or oral or parenteral corticosteroid medications. He did not require emergency visits or hospitalization for any pulmonary symptoms or conditions. In the past year he did not take antibiotics and has never required the use of oxygen. There was no cor pulmonale and no pulmonary hypertension. His asbestosis caused no functional impact at work at that time. At the October 2012 VA respiratory examination, the Veteran underwent PFTs. This VA examiner surmised that the Veteran’s PFTs accurately reflect his current pulmonary functioning. His PFTs only demonstrated a FVC of 100 percent predicted (pre-bronchodilator); a FVC of 99 percent predicted (post-bronchodilator); and a DLCO (DB) of 74 percent predicted (pre-bronchodilator). The VA examiner found that DLCO (DB) most accurately reflected the Veteran’s level of disability at that time. Spirometry lung values and flow volume loop were deemed within normal limits. There was no change in spirometry after use of the inhaled bronchodilator. No exercise capacity testing was performed. See 38 C.F.R. § 4.96(d)(1)(i) (when a maximum exercise capacity test is not of record, evaluation is based on alternative criteria). A March 2013 VA primary care note indicated the Veteran had no shortness of breath or change in level of exercise tolerance. At a May 2013 VA respiratory examination, the Veteran reported that since the last October 2012 examination, he has had worsening of symptoms (he cannot run or jog and more). He also uses a CPAP machine for sleep apnea (not service-connected). As to functional impact, his asbestosis impacts his ability to work. He becomes fatigued more easily than normal. His asbestosis does not require oral or parenteral corticosteroid medications or inhaled medications or oral bronchodilators or antibiotics. No oxygen therapy was necessary. There was no cor pulmonale and no pulmonary hypertension. He had no other pulmonary conditions aside from asbestosis. The May 2013 VA examiner determined that the earlier October 2012 PFT readings accurately reflected his current pulmonary function. The October 2012 DLCO readings reflect a decades long process that would be only anticipated to change very slowly with decades to interval change. The DLCO is not going to change since October 2012 – thus the May 2013 VA examiner did not repeat these tests. Furthermore, the May 2013 PFTs only demonstrated a FVC of 89.93 percent predicted (post-bronchodilator); and a FVC of only 87.48 percent predicted (pre-bronchodilator). The May 2013 examiner found that DLCO (DB) most accurately reflected the Veteran’s current pulmonary function at that time. See 38 C.F.R. § 4.96(d)(6). No exercise capacity testing was performed. A June 2013 Southwest Pulmonary Associates treatment record noted the Veteran’s report of shortness of breath on exertion for the last 5 years – he can walk for a block. He reported chronic cough with white sputum but no blood. He had no asthma or pneumonia. His respiratory examination was normal at that time. His private PFTs (not available for review and not authorized by the Veteran for VA to secure) showed “mild” small airway obstruction and “minimal” diffusion defect. An October 2015 VA optometry note remarked that the Veteran was now on albuterol oral inhalation for his asbestosis. A March 2016 VA primary care initial evaluation note assessed no labored breathing on examination. A January 2017 VA primary care note revealed no issues with shortness of breath. The Veteran’s lungs were clear to auscultation bilaterally. VA treatment records dated in 2018 and 2019 documented that the Veteran’s lungs were always clear to auscultation bilaterally. He exhibited no wheezes, no ronchi, and no crackles. At a July 2018 VA pre-procedure note and at a July 2018 VA nursing procedure note, the Veteran denied using home oxygen. At VA physician notes dated in August 2018, September 2018, December 2018, June 2019, and August 2019, VA clinicians observed no acute respiratory distress. A January 2020 VA chest X-ray stated there was a clinical indication of shortness of breath. The impression was bibasilar sub-segmental atelectasis, no consolidation or effusion. At a January 2020 VA respiratory examination, the Veteran reported his current symptoms are increased shortness of breath, tightness in the chest, and coughing intermittently. The impact of the Veteran’s asbestosis is that he must lead a sedentary lifestyle, he cannot do any strenuous activity, and there are limitations in daily activities such as walking any distance and climbing stairs. The Veteran requires rest between activities. The Veteran used no oral or parenteral corticosteroid medications; no inhaled medications; no oral bronchodilators; and no antibiotics. He required no outpatient oxygen therapy. He had no episodes of respiratory failure. He exhibited no cor pulmonale and no pulmonary hypertension. He had no other pulmonary conditions aside from asbestosis. The functional impact of the Veteran’s asbestosis disability is that he must take frequents breaks during activity due to shortness of breath, tightness in the chest, and coughing. At the January 2020 VA respiratory examination, the Veteran underwent PFTs. His PFTs only demonstrated a FVC of 84 percent predicted (pre-bronchodilator). The VA examiner found that FVC testing most accurately reflected the Veteran’s level of disability at that time. No exercise capacity testing was performed. The VA examiner did not complete post-bronchodilator testing. This was because pre-bronchodilator results were normal. In this regard, under VA regulation, post-bronchodilator studies are required when PFT's are done for disability evaluation purposes, except when the results of pre-bronchodilator PFTs are normal, like the present Veteran’s case. See 38 C.F.R. § 4.96(d)(4). The VA examiner also found that the DLCO testing was not completed at this time as it was not indicated for the Veteran’s condition. Therefore, the Board can evaluate under the alternative criteria – here being FVC. See 38 C.F.R. § 4.96(d)(2). With regard to lay evidence, the Veteran is competent and credible in his report of occasional shortness of breath, chest tightness, coughing with white sputum, fatigue, use of prescription oral inhalers, difficulty exercising, and limitations in daily activities or work with frequent breaks necessary. See 38 C.F.R. §§ 4.96, 4.97. However, none of this confirmed symptomatology establishes a higher rating above the 10 percent assigned under 38 C.F.R. § 4.97, Diagnostic Code 6833, for asbestosis. The Veteran’s PFTs for which he is rated under contemplate the severity of his symptoms of respiratory impairment and the resulting functional impairment, as these are the effects the PFTs are designed to measure. With respect to maximum exercise capacity test results, no such results are of record. The Board observes that, in revising the current schedule of ratings for the respiratory system, VA noted that the regulations did not require that a maximum exercise capacity test be conducted in every case. See 71 Fed. Reg. 52457-01 (Sept. 6, 2006). Notably, VA stated that the test was not routinely conducted, was not available in some medical facilities and that if no maximum exercise capacity test is of record, the regulation directs that evaluation be based on the alternative criteria (which have been discussed above). Id. As such, there is no issue with the adequacy of the Veteran's respiratory VA examinations for not conducting a maximum exercise capacity test. See also 38 C.F.R. § 4.96(d)(1)(i). Absent any maximum exercise capacity test results, a 60 or 100 percent disability rating under this alternative criteria is not warranted. See again 38 C.F.R. § 4.97, Diagnostic Code 6833. Briefly, the Board has also considered other diagnostic codes pertaining to respiratory conditions. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). However, on this point, the Court has held that when a disability is specifically listed in the rating schedule, it may not be rated by analogy. Copeland v. McDonald, 27 Vet. App. 333, 337-38 (2015). In fact, the Federal Circuit expressly adopted this approach in Scott v. Wilkie, 920 F.3d 1375, 1379 (Fed. Cir. 2019). In the instant case, the Veteran’s asbestosis disability is specifically listed in the rating schedule under Diagnostic Code 6533. VA respiratory examiners assessed the Veteran has no other respiratory / pulmonary disorders. As such, there are no additional distinct, diagnosed respiratory conditions in the present case that are not explicitly listed in the rating schedule. See Yancy v. McDonald, 27 Vet. App. 484, 493 (2016). Moreover, the rating schedule specifically provides that Diagnostic Codes 6600 through 6817 and 6822 to 6847 will not be combined with each other. 38 C.F.R. § 4.96(a). Instead, a single rating will be assigned under the Diagnostic Code that reflects the predominant disability with elevation to the next higher rating where the severity of the overall disability warrants such rating. Thus, his asbestosis disability on appeal could not be rated by analogy to any other diagnostic code in the rating schedule. See Butts v. Brown, 5 Vet. App. 532, 538 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Accordingly, the Board concludes that an increased rating in excess of 10 percent for the Veteran’s asbestosis disability is denied. 38 C.F.R. § 4.3. Finally, with regard to the increased rating claim for the Veteran’s service-connected asbestosis, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. Rubin, 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.