Citation Nr: 21010470 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-21 116A DATE: February 24, 2021 ORDER Entitlement to a rating in excess of 30 percent for left total knee replacement is denied. Entitlement to a rating in excess of 30 percent for total right knee replacement is denied. Entitlement to an increased rating in excess of 10 percent for lumbosacral strain prior to October 9, 2012, is denied. Entitlement to an increased rating in excess of 40 percent for lumbosacral strain October 9, 2012, to April 24, 2014, is denied. Entitlement to an increased rating in excess of 20 percent disabling for lumbosacral strain from April 25, 2014, is denied. Entitlement to TDIU prior to March 1, 2011, is denied. FINDINGS OF FACT 1. The objective clinical evidence does not reflect the Veteran’s total left knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. 2. The objective clinical evidence does not reflect the Veteran’s total right knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. 3. Prior to October 9, 2012, the Veteran’s lumbosacral strain had not been manifested by forward flexion of 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 230 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. 4. From October 9, 2012, to April 24, 2014, the Veteran’s lumbosacral strain had not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 5. 4. From April 25, 2014, the Veteran’s lumbosacral strain had not been manifested by forward flexion of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. 6. The claims folder does not reflect that prior to March 1, 2011, the Veteran was unable to obtain or maintain substantial employment due to his service-connected disabilities, other than his right knee disability. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for a left total knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055. 2. The criteria for a disability rating in excess of 30 percent for a right total knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.3, 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5055. 3. The criteria for an increased rating in excess of 10 percent for lumbosacral strain, prior to October 9, 2012, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.71a, Diagnostic Code 5237. 4. The criteria for an increased rating in excess of 40 percent for lumbosacral strain, from October 9, 2012, to April 24, 2014, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.71a, Diagnostic Code 5237. 5. 4. The criteria for an increased rating in excess of 20 percent for lumbosacral strain, from April 25, 2014, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 4.71a, Diagnostic Code 5237 6. The criteria for entitlement to TDIU prior to March 1, 2011, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1974 to August 1977. These matters come to the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The claims were remanded by the Board in June 2018 for further development. Increased Rating Legal Criteria Rating Disabilities in General Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Further, a disability rating may require re-evaluation in accordance with changes in a Veteran’s condition. It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history. 38 C.F.R. § 4.1. Nevertheless, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Rating Musculoskeletal Disabilities Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40 and 4.45, see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45. However, pain alone does not constitute a functional loss under the VA regulations that evaluate disability based upon range-of-motion loss. Pain may cause a functional loss but itself does not constitute functional loss; rather, 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. Mitchell v. Shinseki, 25 Vet. App. 32, 33, 43. Degenerative or traumatic arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups. A 20 percent evaluation will be assigned where there is x-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010, 5024. 1. Entitlement to a rating in excess of 30 percent for left total knee replacement During the pendency of this appeal the Veteran has been provided a 30 percent disability rating under Diagnostic Code 5055 due to left total knee replacement. Under that Diagnostic Code, a 100 percent rating applies during the one-year period following the implantation of a knee prosthesis. Thereafter, a 60 percent disability rating is assigned for chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain, or limitation of motion, adjudicators should rate Diagnostic Code 5055 by analogy to Diagnostic Codes 5256 (knee ankylosis), 5261 (limitation of leg extension), or 5262 (impairment of the tibia and fibula) or assign the minimum 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5055. The rating schedule does not define the terms “intermediate” or “severe” as they used in Diagnostic Code 5055. Instead, adjudicators must evaluate all of the evidence and render a decision that is equitable and just. 38 C.F.R. § 4.6. Clinicians’ use of terminology such as severe, although an element that the Board will consider, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. § § 4.2, 4.6. Normal range of motion of the knee is from 0 to 140 degrees extension and from 140 to 0 degrees flexion. 38 C.F.R. § 4.71, Plate II. The Veteran was provided a VA medical examination in May 2011. The examination report reflects the Veteran with left knee range of motion from 0 to 100 degrees, at worst. Further, the examination report noted no ankylosis and no instability. Additionally. The examination report noted the Veteran with left total knee replacement with residual mild edema and decreased range of motion. The Veteran was provided a VA medical examination in October 2012. The examination report reflects the Veteran with left knee range of motion from 0 to 85 degrees, at worst. The Veteran was provided a VA medical examination in October 2020. The examination report reflects the Veteran with left knee range of motion from 0 to 70 degrees, at worst. Further, the examination report noted no ankylosis, and intermediate degrees of residual weakness, pain or limitation of motion. Here, the Board finds that an increased rating in excess of 30 percent disabling for left total knee replacement is not warranted. The clinical evidence does not reflect the Veteran’s left total knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. As such, a rating in excess of 30 percent under DC 5055 is not warranted. Here, a rating under DC 5256 is not for application because the evidence of record is against a finding of ankylosis. The medical evidence reflects that the Veteran’s left knee has range of motion from at least 0 to 70 degrees, and the evidence is against a finding of ankylosis; thus, a rating under DC 5256 is not warranted. (See May 2011, October 2012, and October 2020 VA medical examination reports). A rating under DC 5259 is not warranted because the evidence does not reflect symptoms in regard to the removal of semilunar cartilage. A compensable rating under DC 5257 is not applicable either, as the clinical evidence does not reflect left knee instability or subluxation. A compensable rating under DC 5261 is not applicable, as the clinical evidence does not reflect left leg extension limited to 10 degrees or more. A rating under DC 5262 is not warranted because the evidence does not reflect that the Veteran has malunion or nonunion of the tibia and fibula. 2. Entitlement to a rating in excess of 30 percent for total right knee replacement During the pendency of this appeal the Veteran has been provided a 30 percent disability rating under Diagnostic Code 5055 due to right total knee replacement. The rating criteria for Diagnostic Code 5055 have been previously discussed. The Veteran was provided a VA medical examination in May 2011. The examination report reflects the Veteran with right knee range of motion from 0 to 85 degrees, at worst. Further, the examination report noted no ankylosis and no instability. Additionally. The examination report noted the Veteran with right total knee replacement with residual edema and decreased range of motion. The Veteran was provided a VA medical examination in October 2012. The examination report reflects the Veteran with right knee range of motion from 0 to 85 degrees, at worst. The Veteran was provided a VA medical examination in October 2020. The examination report reflects the Veteran with right knee range of motion from 10 to 65 degrees, at worst. Further, the examination report noted no ankylosis, and intermediate degrees of residual weakness, pain or limitation of motion. Here, the Board finds that an increased rating in excess of 30 percent disabling for right total knee replacement is not warranted. The clinical evidence does not reflect the Veteran’s right total knee replacement with chronic residuals consisting of severe painful motion or weakness in the affected extremity. As such, a rating in excess of 30 percent under DC 5055 is not warranted. Here, a rating under DC 5256 is not for application because the evidence of record is against a finding of ankylosis. The medical evidence reflects that the Veteran’s right knee has range of motion from at least 10 to 65 degrees, and the evidence is against a finding of ankylosis; thus, a rating under DC 5256 is not warranted. (See May 2011, October 2012, and October 2020 VA medical examination reports). A rating under DC 5259 is not warranted because the evidence does not reflect symptoms in regard to the removal of semilunar cartilage. A compensable rating under DC 5257 is not applicable either, as the clinical evidence does not reflect right knee instability or subluxation. A compensable rating under DC 5261 is not applicable here. While the clinical evidence does reflect right leg, extension limited to 10 degrees, the Veteran is currently in receipt of a higher disability rating under DC 5055. Under DC 5055 the minimum rating is 30 percent. In contrast, DC 5261 would only provide the Veteran with a 10 percent disability rating. As, the Veteran is being rated based on his right knee replacement residuals, which included limitation of motion, a separate rating for limitation in extension is not warranted. See 38 C.F.R. § 4.14. A rating under DC 5262 is not warranted because the evidence does not reflect that the Veteran has malunion or nonunion of the tibia and fibula. 3. Entitlement to increased ratings in excess of 10 percent for lumbosacral strain prior to October 9, 2012, is denied. 4. Entitlement to increased ratings in excess of 40 percent for lumbosacral strain October 9, 2012, to April 24, 2014, is denied. 5. Entitlement to increased ratings in excess of 20 percent disabling for lumbosacral strain from April 25, 2014, is denied The diagnostic code criteria pertinent to spinal disabilities in general are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5235 - 5243. Under these relevant provisions, forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height is rated at 10 percent. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 230 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. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Unfavorable ankylosis of the entire thoracolumbar spine warrants a 50 percent rating. Unfavorable ankylosis of the entire spine warrants a 100 percent rating. In addition, intervertebral disc syndrome (IVDS) may also be evaluated based on incapacitating episodes, depending on which method results in the higher evaluation when all disabilities are combined under § 4.25. As the evidence in this case does not reflect that the Veteran has been prescribed bedrest due to incapacitating episodes related to (IVDS), the assignment of a higher rating under this provision will not be discussed. 10 Percent Rating Prior to October 9, 2012 The Veteran submitted and VA received the claim for an increased rating in February 2011. Prior to October 9, 2012, the Veteran’s service-connected lumbosacral strain disability has been rated as 10 percent disabling under DC 5237. 38 C.F.R. § 4.71a. The Veteran was afforded a VA examination in May 2011. The examination reflected the Veteran’s lumbar spine had a forward flexion from 0 to 60 degrees, extension from 0 to 25 degrees, bilateral lateral flexion from 0 to 30 degrees, and bilateral lateral rotation from 0 to 25 degrees. The examination further noted the Veteran’s back with pain on motion, tender, with weakness. The Veteran was provided a VA medical examination on October 9, 2012. The examination reflected the Veteran’s lumbar spine had a forward flexion from 0 to 20 degrees, at worst; bilateral lateral flexion from 0 to 15 degrees, at worst; and bilateral lateral rotation from 0 to 20 degrees, at worst. Based on the above, the Board finds that an increase rating in excess of 10 percent, for lumbosacral strain prior to October 9, 2012, is not warranted. The evidence does not reflect that prior to October 9, 2012 the Veteran’s thoracolumbar spine less than 60 degrees; or combined range of motion of the thoracolumbar spine less than 230 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. 40 Percent Rating from October 9, 2012 to April 24, 2014 The Veteran’s lumbosacral strain was provided a 40 percent rating from October 9, 2012 to April 24, 2014. The Veteran was afforded a VA examination on October 25, 2014. The examination reflected the Veteran’s lumbar spine had a forward flexion from 0 to 40 degrees, extension from 0 to 10 degrees, bilateral lateral flexion from 0 to 20 degrees, and bilateral lateral rotation from 0 to 20 degrees. The examination further noted the Veteran’s back with pain on motion, tender, with weakness. Based on the above, the Board finds that an increase rating in excess of 40 percent, for lumbosacral strain from October 9, 2012, to April 24, 2014, is not warranted. The evidence for this time period does not reflect that the Veteran’s thoracolumbar spine was manifested by unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. 20 Percent Rating From April 25, 2014 The Veteran’s lumbosacral strain was subsequently provided a 20 percent rating from April 25, 2014. The Veteran was afforded a VA examination in October 2020. The examination reflected the Veteran’s lumbar spine had a forward flexion from 0 to 50 degrees, extension from 0 to 10 degrees, bilateral lateral flexion from 0 to 10 degrees, and bilateral lateral rotation from 0 to 10 degrees. Based on the above, the Board finds that an increase rating in excess of 20 percent, for lumbosacral strain from April 25, 2014, is not warranted. The evidence does not reflect that from April 25, 2014 the Veteran’s thoracolumbar spine with forward flexion of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. Additional Considerations In continuing the assigned ratings for the low back disability, the Board has considered, along with the schedular criteria, functional loss due to pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board finds that the evidence does not contain sufficient evidence to support any additional increase in disability rating based on any functional loss due to flare-ups of pain. While the Veteran has reported experiencing symptoms such as pain, the medical records and examinations show that pain did not result in additional functional loss. Therefore, the Board finds that no further increase in the Veteran’s current back ratings is warranted due to any additional factors causing limitation of function. The Board, in making the determination of the Veteran’s ratings has not ignored the Veteran’s statements concerning the symptomology of his back disability. The Board finds that the Veteran is a lay person and is competent to report symptoms he observes, such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). Whether lay evidence is considered competent and sufficient in a particular case is an issue of fact and lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Here, an opinion concerning the relationship between the Veteran’s symptoms and a specific level of impairment of his back disability is of a medically complex nature. The diagnosis and analysis require expert medical training and the use of diagnostics which the Veteran has not demonstrated he possesses. Therefore, the Board finds that the Veteran is not competent provide an opinion as to whether his back disability warrants a rating in excess of disability ratings he currently receives. The Board finds that objective evidence provided by the VA examiners of record to be more persuasive than the Veteran’s contention that higher ratings are warranted. 6. Entitlement to TDIU prior to March 1, 2011 The Veteran filed his claim for TDIU on February 11, 2011. The Board notes that the right total knee replacement was rated 100 percent from January 4, 2010, to February 28, 2011. Receipt of a 100 percent disability rating for a service-connected disability does not necessarily render moot the issue of entitlement to a TDIU. Bradley v. Peake, 22 Vet. App. 280 (2008). In June 2018 the Board granted TDIU effective March 1, 2010. The issue before the Board is whether the Veteran is entitled to TDIU prior to March 1, 2011. As a preliminary matter, the Board notes that the Veteran’s claim for TDIU was received by VA in February 2011. The general rule regarding effective dates is that the effective date of an award of compensation based on an original claim, a claim re-opened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400. A specific claim in the form prescribed by the Secretary of Veterans Affairs must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 C.F.R. § 3.151. The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief of entitlement, to a benefit. 38 C.F.R. § 3.1 (p). “Date of receipt” generally means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1 (r). Any communication or action indicating an intent to apply for a benefit may be considered an informal claim. 38 C.F.R. § 3.155. Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by VA, from a claimant, his or her duly authorized representative, a Member of Congress, or some person acting as next friend of a claimant who is not sui juris may be considered an informal claim. Such an informal claim must identify the benefit sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year after the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). As noted above, the effective date of an award based on claim for increase benefits shall be the date of receipt of the claim or the date entitlement arose, or the date of increase if the increase is shown within one year prior to filing the claim, whichever is later. 38 U.S.C. § 5110(a). While the Veteran contends that he is entitled to an earlier effective date prior to March 1, 2011, the claims folder reflects that the Veteran requested TDIU on February 11, 2011. (See February 11, 2011 Veterans Application for increased Compensation Based on Unemployability). The February 11, 2011 correspondence constitutes as a new claim for entitlement to TDIU and increased rating. The Veteran, nor his representative, has asserted clear and unmistakable error (CUE) in regard to any previous decision. Thus, the Board notes that the Veteran would not be entitled to TDIU no earlier than February 11, 2011, date of the claim. However, from January 4, 2010, to February 28, 2011the Veteran was in receipt of a 100 percent rating for right total knee replacement. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled as a result of a service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of TDIU moot. VA’s duty to maximize a claimant's benefits includes consideration of whether his disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the disabilities other than the disability that is rated at 100 percent. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114(s)); See also 75 Fed. Reg. 11,229 -04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). In this instance, the Veteran was in receipt of a 100 percent rating for right total knee replacement. The claims folder does not reflect that prior to March 1, 2011, the Veteran was unable to obtain or maintain substantial employment due to his service-connected disabilities, other than his right knee disability. Rather, in a February 2011 VA administrative note, a VA physician assistant stated that the Veteran was unable to work specifically, due to the right knee disability. Based on the above, the issue of entitlement to TDIU prior to March 1, 2011, is not warranted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Brandon A. Williams, 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.