Citation Nr: 21008995 Decision Date: 02/18/21 Archive Date: 02/18/21 DOCKET NO. 13-06 592A DATE: February 18, 2021 ORDER An initial rating in excess of 10 percent for a chronic strain of the thoracolumbar spine from August 31, 2011 to September 12, 2012 is denied. A rating in excess of 40 percent for a chronic strain of the thoracolumbar spine from September 12, 2012, forward, is denied. An initial rating in excess of 10 percent for cervical myofascial pain from August 31, 2011 to September 12, 2012 is denied. A rating in excess of 40 percent for cervical myofascial pain from September 12, 2012, forward, is denied. FINDINGS OF FACT 1. From August 31, 2011 to September 12, 2012, the Veteran’s lumbar spine disability was not shown to result in forward flexion of the thoracolumbar spine of 60 degrees or greater; a combined range of motion of the thoracolumbar spine 120 degrees or greater; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; or ankylosis of the spine. 2. At no time has lumbar ankylosis been diagnosed. 3. From August 31, 2011 to September 12, 2012, the Veteran’s cervical spine disability was not shown to result in forward flexion of 30 degrees or greater; a combined range of motion of the cervical spine greater than 170 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal cervical spinal contour; or ankylosis of the spine. 4. At no time has ankylosis of the cervical spine been diagnosed. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a lumbar spine disability, from August 31, 2011 to September 12, 2012, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5237. 2. The criteria for a rating in excess of 40 percent for a lumbar spine disability, from September 12, 2012, forward, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5237. 3. The criteria for an initial rating in excess of 10 percent for a cervical spine disability, from August 31, 2011 to September 12, 2012, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5237. 4. The criteria for a rating in excess of 40 percent for a cervical spine disability, from September 12, 2012, forward, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5010-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 2006 to August 2011. This appeal was previously before the Board in September 2017 and in January 2019. The September 2017 Board remand ordered a new VA examination to determine the nature and severity of his service-connected back and neck disabilities, throughout the period on appeal. A contract VA examination was scheduled in October 2017; however, it appeared as though it was rejected because the Veteran did not reside in a state that participated in contract VA examinations. As such, the January 2019 Board decision remanded to afford the Veteran an opportunity for an examination conducted at a VA medical center. The Veteran was scheduled for VA examinations for his back and neck in November 2019. However, the Veteran declined to attend the scheduled VA examinations. The Veteran’s representative noted in their appellate brief that the Veteran had severe symptoms of service-connected posttraumatic stress disorder, but stated that they did not know why the Veteran failed to attend the scheduled VA examinations. See Appellate Brief dated December 9, 2020. Here, the Board finds that VA has fulfilled its duty to assist because the Veteran was scheduled for VA examinations, pursuant to the January 2019 Board remand directives. The Veteran, nor his representative, has provided good cause for his failure to report to the examinations, nor provided an assurance that the Veteran would attend an examination should one be rescheduled. The Board emphasizes that the duty to assist a claimant is not a one-way street, and in this case the Veteran has failed to cooperate in the development of his claim. Olsen v. Principi, 3 Vet. App. 480 (1992); 38 C.F.R. § 3.655. Failure to Report for Necessary VA Examinations When entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination, or reexamination, action shall be taken in accordance with the type of claim. 38 C.F.R. § 3.655 (a). When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655 (b) (emphasis added). The first question for resolution here is whether the benefits cannot be established or confirmed without the examinations. It goes without saying that a remand implies a finding that the benefit cannot be granted based on the evidence of record. If the benefit could be granted, the remand would be unnecessary. The stated bases for the Board’s remand were to determine the current severity of the service-connected back and neck disabilities. Indeed, the examinations were necessary to evaluate the Veteran’s assertions of worsening. As explained by the Board in its remand, the evidence of record was not sufficient to assign higher ratings based on the evidence of record. Here, the initial increased ratings claims are original claims and the Board will consider his claims based on the evidence of record. Id. 1. An initial rating in excess of 10 percent for a lumbar spine disability, prior to September 12, 2012, and 40 percent, thereafter, is denied. The Veteran asserts that he is being undercompensated for his lumbar spine disability because of significant levels of disruptive pain. VA received the Veteran’s service connection claim for a lumbar spine disability in June 2011, prior to his separation from the military. A subsequent September 2011 rating decision granted service connection and assigned an initial 10 percent rating, based on painful motion, effective August 31, 2011, the day after he separated from the military. The Veteran disagreed with the assigned rating and this appeal ensued. A subsequent December 2012 statement of the case (SOC) granted the Veteran an increased rating to 40 percent, effective September 12, 2012. As such, the relevant period on appeal begins on August 31, 2011 and the Board will adjudicate whether the Veteran is entitled to an initial rating in excess of 10 percent for a lumbar spine disability prior to September 12, 2012, and 40 percent thereafter. The Board notes that the Veteran’s initial 10 percent rating is based on painful motion and his 40 percent rating is based on a showing that the Veteran’s forward flexion of the thoracolumbar spine was limited to 30 degrees or less. Back and neck disabilities are currently rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome (IVDS) based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the current Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal.  38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1). The evidence of record does not show that the Veteran has experienced any IVDS. The June 2010 VA examination report did not mention the presence of IVDS, and the September 2011 and September 2012 VA examiners both affirmatively indicated that the Veteran did not have IVDS. Moreover, there is no evidence showing that the Veteran has been prescribed any bed rest to treat his low back disability. Because the prescription of bed rest is a foundational requirement of a rating under this section of the rating schedule, the absence of any prescribed bed rest precludes a rating from being assigned under it. As such, a rating based on IVDS is not appropriate, and it is therefore more beneficial to evaluate the Veteran’s lumbar spine disability under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent evaluation is warranted if forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; if there is muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or if there is vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or if there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted if forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Normal ranges of motion of the lumbar spine are flexion to 90 degrees, extension to 30 degrees, lateral flexion to 30 degrees, and rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. The Veteran was afforded a VA examination in September 2011 at which he denied experiencing flare-ups of the lumbar spine. On examination, he showed forward flexion to 90 degrees, extension to 30 degrees, left and right lateral flexion to 30 degrees, and left and right lateral rotation to 30 degrees. The examiner noted that there was objective evidence of painful motion in all planes of motion. Nevertheless, the Veteran was able to perform repetitive use testing, which did not result in any additional loss in terms of range of motion. The examiner reported that the Veteran had localized tenderness of the lumbar spine but did not have guarding or muscle spasms. There was no evidence that the Veteran had an abnormal gait or abnormal spinal contour. Muscle strength testing showed normal results. There was no evidence that the Veteran was diagnosed with IVDS or ankylosis. There was no indication that the Veteran used any assistive devices. The Veteran reported in his October 2011 notice of disagreement (NOD) that his back disability caused significant pain and resulted in an abnormal gait and had muscle spasms. As a result, a new VA examination was ordered. The Veteran was afforded a VA examination in September 2012. The Veteran did not report having flare-ups of the lumbar spine. On examination, he showed forward flexion to 25 degrees, extension to 25 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 15 degrees. The examiner noted that there was objective evidence of painful motion in all planes of motion. The Veteran was able to perform repetitive use testing and resulted in forward flexion to 25 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 15 degrees. The examiner indicated that the Veteran had muscle spasms that caused abnormal spinal contour. Muscle strength testing showed normal results in all planes of motion. There was no evidence of IVDS or ankylosis. There was no indication that the Veteran used any assistive devices for his lumbar spine disability. After the Veteran was assigned a 40 percent rating, he asserted that the severity of his conditions had not worsened from the initial September 2011 VA examination to the September 2012 VA examination and was more severe than was originally rated. See Form 9 received March 25, 2013. Based on the Veteran’s assertion that the severity of his conditions had not changed between his two VA examinations, the Board found that remand was necessary to obtain the Veteran’s outstanding treatment records to better understand the overall disability picture. The Veteran was sent a subsequent development letter, which sought to obtain all private treatment records related to his back disability. However, the Veteran did not respond, and no new medical evidence was associated with the Veteran’s claims file in regard to the treatment records for a back disability. As previously explained, after both the September 2017 and January 2019 Board remands, the Veteran failed to report to his scheduled VA examinations. As such, the Board will adjudicate his increased ratings claims with the evidence of record. The Veteran does not have any VA or private treatment records from August 31, 2011 to September 12, 2012. As such, the VA examinations of record are the only objective medical records for which to adjudicate his increased rating claim for his lumbar spine disability. Here, the weight of the evidence does not demonstrate limitation of motion consistent with a rating in excess of 10 percent. He showed full range of motion at the September 2011 VA examination. The Board acknowledges that he had objective evidence of pain on examination, but it was not found to result in any additional loss in terms of range of motion. The Veteran also denied flare-ups in his lumbar spine. There was no indication that his range of motion was greater than 30 degrees, but not greater than 60 degrees; or had a combined range of motion of the thoracolumbar spine not greater than 120 degrees. The VA examiner also reported that although the Veteran had pain on palpation, he did not have guarding or muscle spasms. The Board acknowledges the Veteran’s assertion that the severity of his condition had not changed between the September 2011 and September 2012 VA examinations and that he had an abnormal gait and muscle spasms during the entire period on appeal. However, the Veteran was asked to identify any private treatment records and authorize VA to receive those records to corroborate his assertions. However, the Veteran has not responded and the Board does not have any treatment records to aid in its analysis. Here, the clinical evidence of record does not support findings consistent with a rating in excess of 10 percent, prior to September 12, 2012. The Board acknowledges the Veteran’s complaints of low back pain. However, the Veteran was assigned a 10 percent rating for his lumbar spine disability, based on painful motion and the Board does not have the discretion to assign a rating in excess of 10 percent, based solely on painful motion. Moreover, the examination report provides a definitive, objective assessment of the Veteran’s spinal disability and thus provides the best evidence as to the state of the spinal disability prior to September 2012. In reaching this conclusion, the Board has considered whether a higher disability evaluation was warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain.  38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59. Here, the Veteran clearly experienced painful motion on range of motion testing at the September 2011 VA examination. However, even if flexion and extension were slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss.  Id. at 43; see 38 C.F.R. § 4.40. Here, the Veteran is already in receipt of the minimum compensable rating under this provision. Here, the examiner conducted repetitive motion testing but the results failed to show that the Veteran’s back disability was so functionally limited as to support the assignment of a rating in excess of 10 percent. The Board acknowledges the Veteran’s complaints of low back pain and the limitation it causes him. The Board does not doubt that this causes him impairment. However, as explained the Veteran has not established findings consistent with a higher rating than is currently assigned. Accordingly, an initial rating in excess of 10 percent for a lumbar spine disability, prior to September 12, 2012, is denied. Regarding the Veteran’s claim for a rating in excess of 40 percent, from September 12, 2012, forward; the weight of the evidence does not support a 50 or a 100 percent rating for a lumbar spine disability. The Veteran’s 40 percent rating is the maximum schedular rating based on a limitation of motion. To achieve a 50 percent or a 100 percent rating, the Veteran must show evidence of ankylosis. However, the clinical evidence of record has not established such findings. A review of the Veteran’s VA treatment records does not reveal any evidence of ankylosis; and both the September 2011 and September 2012 VA examination reports showed there was no evidence of ankylosis of the spine. Further, the Veteran has not described the symptoms of ankylosis. Accordingly, a rating in excess of 40 percent for a lumbar spine disability, from September 12, 2012, forward, is denied. An initial rating in excess of 10 percent for a cervical spine disability, prior to September 12, 2012, and 40 percent, thereafter, is denied. The Veteran asserts that he is being undercompensated for his cervical spine disability because of significant levels of disruptive pain. VA received the Veteran’s service connection claim for a cervical spine disability in June 2011, prior to his separation from the military. A subsequent September 2011 rating decision granted service connection and assigned an initial 10 percent rating, based on painful motion, effective August 31, 2011, the day after he separated from the military. The Veteran disagreed with the assigned rating and this appeal ensued. A subsequent December 2012 SOC granted the Veteran an increased rating to 40 percent, effective September 12, 2012. As such, the relevant period on appeal begins on August 31, 2011 and the Board will adjudicate whether the Veteran is entitled to an initial rating in excess of 10 percent for a cervical spine disability prior to September 12, 2012, and 40 percent thereafter. Normal ranges of motion of the cervical spine are flexion from 0 to 45 degrees, extension from 0 to 45 degrees, lateral flexion from 0 to 45 degrees, and lateral rotation from 0 to 80 degrees. 38 C.F.R. § 4.71, Plate V. The Board notes that the Veteran’s initial 10 percent rating is based on painful motion and his 40 percent rating is also based on painful motion. The Veteran was afforded a VA examination in September 2011. The Veteran did not report having flare-ups of the cervical spine. On examination, he showed forward flexion to 45 degrees, extension to 45 degrees, bilateral lateral flexion to 45 degrees, and bilateral lateral rotation to 80 degrees. There was objective evidence of painful motion in all planes of motion. The Veteran was able to perform repetitive use testing with no additional loss in terms of range of motion. The examiner reported that the Veteran did not have guarding or muscle spasm of the cervical spine. Muscle strength testing showed normal strength in all planes of motion. There was no evidence of ankylosis of IVDS. The Veteran reported in his October 2011 NOD that his neck disability caused significant pain and resulted in an abnormal gait and had muscle spasms. As a result, a new VA examination was ordered. The Veteran was afforded a VA examination in September 2012. The Veteran did not report having flare-ups of the cervical spine. On examination, he showed forward flexion to 20 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 30 degrees. The examiner noted that there was objective evidence of painful motion in all planes of motion. The Veteran was able to perform repetitive use testing and resulted in forward flexion to 20 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. Muscle strength testing showed normal results in all planes of motion. There was no evidence of IVDS or ankylosis. The was no indication that the Veteran used any assistive devices for his cervical spine disability. The Veteran was afforded a VA examination in April 2014. He reported having flare-ups on the left side of his neck. On examination, he showed forward flexion to 20 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees. There was objective evidence of painful motion in all planes of motion. The Veteran was able to perform repetitive use testing and showed forward flexion to 10 degrees, extension to 15 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 10 degrees. Muscle strength testing showed normal strength in all planes of motion. There was no evidence of ankylosis or IVDS. Based on the findings of the September 2012 VA examination, the Veteran received a 40 percent rating for his cervical spine disability. The Board points out that to receive a 40 percent rating for a cervical spine disability, a veteran must show that he has unfavorable ankylosis of the entire cervical spine. Although the evidence of record has not shown any ankylosis in the Veteran’s spine, the Board will not disturb his 40 percent rating. After the Veteran was assigned a 40 percent rating, he asserted that the severity of his conditions had not worsened from the initial September 2011 VA examination to the September 2012 VA examination and was more severe than was originally rated. See Form 9 received March 25, 2013. Based on the Veteran’s March 2013 Form 9, that the severity of his conditions had not changed between the two VA examinations, the Board found that remand was necessary to obtain the Veteran’s outstanding treatment records to better understand the overall disability picture. The Veteran was sent a subsequent development letter, which sought to obtain all private treatment records related to his neck disability. However, the Veteran did not respond, and no new medical evidence was associated with the Veteran’s claims file in regard to the treatment records for a neck disability. As previously explained, after both the September 2017 and January 2019 Board remands, the Veteran failed to report his scheduled VA examinations. As such, the Board will adjudicate his increased ratings claims with the evidence of record. The Veteran does not have any VA or private treatment records from August 31, 2011 to September 12, 2012. As such, the VA examinations of record are the only objective medical records for which to adjudicate his increased rating claim for his back disability. Here, the weight of the evidence does not demonstrate limitation of motion consistent with a rating in excess of 10 percent, from August 31, 2011 to September 12, 2012. He showed full range of motion at the September 2011 VA examination. The Board acknowledges that he had objective evidence of pain on examination, but it did not result in any additional loss in terms of range of motion. The Veteran also denied flare-ups in his cervical spine. There was no indication that his forward flexion of the cervical spine was limited to 30 degrees or less or the combined range of motion of the cervical spine was limited to 170 degrees or worse. Although the Veteran reported having muscle spasms and an abnormal gait prior to September 12, 2012, the 2011 VA examiner reported that although the Veteran had pain on palpation, he did not have guarding or muscle spasms. The Board acknowledges the Veteran’s assertion that the severity of his conditions had remained the same between the September 2011 and September 2012 VA examinations and had an abnormal gait and muscle spasms during the entire period on appeal. However, the Veteran was asked to identify any private treatment records and authorize VA to receive those records to corroborate his assertions, but he failed to respond and the Board does not have any treatment records to aid in its analysis, or to bolster the Veteran’s assertions. Here, the clinical evidence of record does not support findings consistent with a rating in excess of 10 percent, prior to September 12, 2012. In reaching this conclusion, the Board has considered whether a higher disability evaluation was warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain.  38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint.  38 C.F.R. § 4.59. Here, the Veteran clearly experienced painful motion on range of motion testing at the September 2011 VA examination. However, even if his range of motion were slightly limited by pain, pain alone is not sufficient to warrant a higher rating, as pain may cause a functional loss, but pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss.  Id. at 43; see 38 C.F.R. § 4.40. Here, the Veteran is already in receipt of the minimum compensable rating under this provision, during this period on appeal, and the pain was not shown to so functionally limit his range of motion as to warrant a higher rating. The Board acknowledges the Veteran’s complaints of neck pain and the limitation it causes him. The Board does not doubt that this causes him impairment. However, as explained the Veteran has not established findings consistent with a higher rating than is currently assigned. Accordingly, an initial rating in excess of 10 percent for a lumbar spine disability, prior to September 12, 2012, is denied. Regarding the Veteran’s claim for a rating in excess of 40 percent, from September 12, 2012, forward; the weight of the evidence does not support a 50 or a 100 percent rating for a cervical spine disability. To achieve a 50 percent or a 100 percent rating, the Veteran must show evidence of ankylosis. However, the clinical evidence of record has not established such findings. A review of the Veteran’s VA treatment records does not reveal any evidence of ankylosis; and the VA examination reports of record showed there was no evidence of ankylosis of the spine. Further, the Veteran has not described the symptoms of ankylosis. Accordingly, a rating in excess of 40 percent for a cervical spine disability, from September 12, 2012, forward, is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Fu, 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.