Citation Nr: 21010824 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 17-07 665 DATE: February 25, 2021 ORDER The character of the Veteran’s discharge for the period of service from August 2, 1989 to October 12, 1994 is a bar to the receipt of Department of Veterans Affairs (VA) benefits. REMANDED Entitlement to service connection for an acquired psychiatric disorder, claimed as paraphilia and/or anxiety, is remanded. Entitlement to service connection for removal of gallbladder is remanded. Entitlement to service connection for residual scar of gallbladder removal is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for bilateral leg scarring, to include as secondary to diabetes mellitus, is remanded. FINDINGS OF FACT 1. Following the Veteran’s period of service from August 2, 1989 to October 12, 1994, he received a bad conduct discharge by reason of the sentence of a general court martial. 2. The Veteran was not insane, as defined by VA regulations, at the time of the misconduct that resulted in his bad conduct discharge by reason of the sentence of a general court martial. CONCLUSION OF LAW The character of the Veteran’s discharge for the period of service from August 2, 1989 to October 12, 1994 is a bar to VA benefits. 38 U.S.C. §§ 101, 5303; 38 C.F.R. §§ 3.1, 3.12. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran’s first period of service in the United States Air Force, from August 2, 1979 to August 1, 1989, is honorable for VA purposes. The Veteran had additional service in the United States Air Force from August 2, 1989 to October 12, 1994, which is dishonorable for VA purposes based on his receipt of a bad conduct discharge by reason of the sentence of a general court martial. A Board hearing was held before the undersigned Veterans Law Judge in October 2019, and transcript of the hearing is of record. In January 2020, the Board remanded the issues currently on appeal for additional development. With respect to the issue of whether the character of the Veteran’s discharge for the period of service from August 2, 1989 to October 12, 1994 is a bar to VA benefits, the Board finds the agency of original jurisdiction (AOJ) has substantially complied with the October 2019 remand directives, and the evidence of record is sufficient to proceed with a decision. With respect to the remaining issues on appeal, the Board regrets the additional delay, but finds remand is once again necessary for the reasons discussed in the remand section below. The Board adds that during the course of the current appeal, the Veteran was granted entitlement to service connection for tinea pedis and service connection for hypertension as related to his first period of honorable service. See September 2020 rating decision. This constitutes a full grant of those particular benefits sought by the Veteran, namely service connection. As such, entitlement to service connection for tinea pedis and service connection for hypertension are no longer before the Board. The Board observes the Veteran indicated disagreement with the evaluation of his service-connected hypertension, which is a separate issue that may be appealed. See October 2020 correspondence. The Veteran is advised that, effective March 24, 2015, a notice of disagreement must be submitted on the form prescribed by the Secretary. As final preliminary matter, the Veteran noted that the supplemental statement of the case dated September 11, 2020 was not sent to his appointed representative. See October 2020 correspondence. Therefore, another copy of the September 11, 2020 supplemental statement of the case was mailed to the Veteran and his representative in December 2020. Character of Discharge 1. Whether the character of the Veteran’s discharge for the period of service from August 2, 1989 to October 12, 1994 is a bar to the receipt of Department of Veterans Affairs (VA) benefits In order to qualify for VA benefits, a claimant must establish as a threshold matter that the period of service on which the claim is based was terminated by discharge or release under conditions other than dishonorable. 38 C.F.R. § 3.12(a); see also 38 U.S.C. § 101(2). As noted above, the Veteran received a bad conduct discharge by reason of the sentence of a general court martial for his period of service from August 2, 1989 to October 12, 1994, which constitutes a statutory and regulatory bar to the receipt of VA benefits. See September 1994 General Court Martial Order; see also 38 U.S.C. § 5303(a); 38 C.F.R. § 3.12(c)(2). However, a discharge under such conditions is not a bar to the payment of benefits if it is found that the person was insane at the time of committing the offense resulting in the discharge, or where a general or honorable discharge has been issued through a service board for correction of records established under 10 U.S.C. § 1552. 38 U.S.C. § 5303(b); 38 C.F.R. § 3.12(b). Initially, the Board observes that evidence associated with the claims file indicates the Veteran submitted an application to the service board for correction of military records (BCMR) established under 10 U.S.C. § 1552. A July 2014 memorandum from the Military Justice Division recommended denial of the Veteran’s request to upgrade his discharge. The Veteran provided a copy of a September 2016 letter to BCMR seeking reconsideration of the denial of his request for discharge upgrade, and indicated during the October 2019 Board hearing that he was awaiting a decision on his BMCR application to upgrade his discharge. In February 2020, the Veteran submitted a portion of the BCMR file. See April 2018 memorandum from the BCMR Medical Advisor. The evidence pertaining BCMR’s response(s) to the Veteran’s request(s) for a discharge upgrade and/or change in narrative reason for separation is unfavorable to the Veteran. With respect to his claim for VA benefits, the Veteran contends that he should not be barred from receiving VA benefits based on the period of service from August 2, 1989 to October 12, 1994 because he was insane at the time of the offenses that resulted in his bad conduct discharge by reason of the sentence of a general court martial. See February 2014 correspondence from the Veteran; see also February 2017 notice of disagreement. Under 38 C.F.R. § 3.354(a), insanity is defined as “one who, while not mentally defective or constitutionally psychopathic, except when a psychosis has been engrafted upon such basic condition, exhibits, due to disease, a more or less prolonged deviation from his normal method of behavior; or who interferes with the peace of society; or who has so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustment to the social customs of the community in which he resides.” See also VAOPGCPREC 20-97. The determination as to whether a particular behavior constitutes insanity for purposes of 38 C.F.R. § 3.354(a) is a question of fact to be resolved by the factfinder based on consideration of the circumstances of the particular case. Id.; Beck v. West, 13 Vet. App. 535, 539 (2000). Although insanity need not be causally connected to the misconduct that led to the discharge, it must be concurrent with that misconduct and requires competent medical evidence to establish a diagnosis. Gardner v. Shinseki, 22 Vet. App. 415, 419 (2009). In reviewing the evidence of record pertaining to the Veteran’s character of discharge for the period of service from August 2, 1989 to October 12, 1994, the Veteran was charged with committing an indecent act upon three different females under the age of 16. See June 1992 Charge Sheet. The Veteran pled not guilty due to lack of mental responsibility and was tried for the offenses by general court martial. See August 1992 Record of Trial. The Veteran was found guilty of two specifications of committing an indecent act upon the body of a female under the age of 16 by repeatedly rubbing her vaginal area with intent to gratify his sexual desires, and one specification of committing an indecent act upon the body of a female under the age of 16 by rubbing her vaginal area with intent to gratify his sexual desires. See November 1992 General Court Martial Order. The Veteran was sentenced to a bad conduct discharge, confinement for three years, and reduction to E-1. In April 1994, the U.S. Air Force Court of Military Review affirmed the findings of guilty and the sentence adjudged by the general court martial. According to the trial transcript, the three victims testified at the general court martial that they had played games in the water with the Veteran at a swimming pool a week prior to when he committed the offenses, and that the Veteran had not touched their vaginal area. The victims testified that the following week they were playing games with the Veteran in the swimming pool again, and on this occasion he touched them in their vaginal area. The victims reported the incident to a lifeguard, and the Veteran was apprehended by law enforcement later that day. Service treatment records document that the Veteran was admitted to the hospital for suicidal ideation following his apprehension by law enforcement. See May 1992 Authorization and Treatment Statement. The provider noted the Veteran voiced thoughts of suicide after being accused of child molestation. The provider observed the Veteran was alert and oriented, very anxious, his affect was flat, he demonstrated fair judgment and insight, and he had no hallucinations or delusions. During his admission at the hospital, the Veteran was diagnosed with “life circumstances.” Throughout his hospital stay, providers noted the Veteran was anxious and tearful, but found no evidence of thought disorders. After five days in hospital, the Veteran was discharged to the custody of his command. During the trial by general court martial, a psychiatrist testified as a witness for the Veteran’s defense. The psychiatrist reported he had been tasked by a sanity board to evaluate whether the Veteran had a psychiatric condition or illness that might have affected his ability to conform to the normal standards of behavior. The psychiatrist testified the Veteran had a diagnosis of paraphilia not otherwise specified of moderate severity, and that the Veteran’s primary dysfunction was a desire to see young individuals in unclothed states. The psychiatrist indicated it was his belief that the indecent acts upon minors committed by the Veteran was a result of his mental disorder. The psychiatrist indicated the Veteran experienced cognitive distortions, or an error in thinking, that allowed him to act against normally enforced social sanctions. The psychiatrist testified that the Veteran was able to resist his compulsion to act due to his disease but indicated it would have been very difficult to resist acting on his impulses and urges at a certain point. The psychiatrist testified the Veteran was functioning more on a level of satisfying sexual urges and desires rather than thinking out the consequences of his behavior. The psychiatrist indicated that in his report to the sanity board he recommended that the Veteran seek additional treatment for paraphilic behavior. However, the psychiatrist also indicated that the report to the sanity board stated the Veteran did not present a danger to himself or others, the Veteran was able to manage his personal and financial affairs, and that the Veteran would not be administered any psychotropic medications. The psychiatrist reported the Veteran’s prognosis for recovery was good, in that intervention occurred before the Veteran’s fantasies could be reinforced by getting away with his activity repeatedly. In February 2014 correspondence, the Veteran reported that he was insane, and laboring under a severe mental disease (paraphilia not otherwise specified) at the time he committed the offenses leading to his bad conduct discharge. The Veteran indicated his diagnosis of paraphilia not otherwise specified had onset very early on in his career, and that he has continued to struggle with the disorder to the present day. See March 2014 VA Form 21-4138. The Veteran reported he experienced intrusive thoughts, dreams, and fantasies that resulted in constant stress and fear. The Veteran reported he experienced a sense of relief when he was caught committing indecent acts upon minors in service because “at least now it was out.” The Veteran reported he wanted the dreams and urges to stop but did not know how to stop them. In March 2014 correspondence, the Veteran reported he will always be dealing with lifelong issues surrounding his disease and applying coping mechanisms. With respect to the Veteran’s report of experiencing intrusive thoughts, the Veteran submitted a medical article titled “Unwanted, Intrusive Thoughts.” Of note, the article indicated that “unwanted intrusive thoughts become obsessive, demand attention, provoke fear and shame, and often lead to doubts about sanity, control, motives, character and safety.” The article went on to state that the “presence of unwanted intrusive thoughts does not indicate anything about your character or sanity… unwanted thoughts are not fantasies or impulses or urges.” The Veteran contends that the expert witness testimony presented at his general court martial is overwhelming competent medical evidence of insanity. See February 2017 VA Form 9. The Veteran reported his misconduct resulting in his bad conduct discharge was a definite deviation from his usual and customary behavior, which was a result of his mental disease. The Veteran argued that the AOJ applied the improper standard for determining he was not insane at the time of his misconduct, and that the AOJ did not consider evidence presented in the court martial transcript that was favorable to his claim of insanity. In this regard, the Board conducts a de novo review of the entire evidence of record. In an October 2019 VA mental health note, the Veteran reported the onset of intrusive sexual thoughts began during his honorable period of service. The Veteran reported he recalled feeling aroused and having intrusive sexual fantasies after seeing underage female dancers at strip clubs in the Philippines. The Veteran reported he had not perpetrated since he was caught committing indecent acts upon minors in service, but that he had continued to have intrusive thoughts. See also June 2020 VA mental health note. The Veteran reported that was something he would have to work on the rest of his life. Pursuant to the January 2020 Board remand, the Veteran was afforded a VA psychiatric examination in August 2020. Dr. A.N. opined the Veteran was not insane at the time he committed indecent acts upon the minors in service. Based on the evidence of record and examination, Dr. A.N. indicated the Veteran was aware of his actions and the inappropriate nature of his thoughts/desires. Additionally, Dr. A.N. reported the Veteran’s claim that he acquired attraction to children while in the military was against the clinical understanding of pedophilic disorders, which develop in puberty. In this case, the Board finds the competent medical evidence of record is at the very least in equipoise as to whether the Veteran had a diagnosis of paraphilia at the time of the misconduct that led to his bad conduct discharge by reason of the sentence of a general court martial. However, the Board notes that the Court has held that mental illness is not identical to “insanity.” See Beck v. West, 13 Vet. App. 535, 539 (2000). To the extent that the Veteran has asserted the August 2020 VA medical opinion is inadequate with respect to the question of insanity, the Board notes that the determination as to whether a particular behavior constitutes insanity for purposes of 38 C.F.R. § 3.354(a) is not a medical determination, but a question of fact to be resolved by the factfinder based on consideration of the circumstances of the particular case. See October 2020 correspondence from the Veteran; Beck, 13 Vet. App. at 539; see also VAOPGCPREC 20-97. In considering the entire evidence of record, the Board finds the facts in this case do not support a determination that the Veteran was “insane” at the time of committing indecent acts upon minors. The Board recognizes that the psychiatrist testified at the Veteran’s general court martial that it was his belief that the indecent acts upon minors committed by the Veteran was a result of his mental disorder. Additionally, the Board recognizes that the psychiatrist indicated the Veteran experienced cognitive distortions, or an error in thinking, that allowed him to act against normally enforced social sanctions at the time the Veteran committed the indecent acts. However, the Board does not find that the psychiatrist’s statements demonstrate the Veteran exhibited, due to disease (diagnosed as paraphilia), a more or less prolonged deviation from his normal method of behavior; interference with the peace of society; or had so departed (become antisocial) from the accepted standards of the community to which by birth and education he belongs as to lack the adaptability to make further adjustments to the social customs of the community in which he resides. Despite the psychiatrist’s opinion that it would have been difficult for the Veteran to resist acting on his impulses and urges at a certain point, the psychiatrist reported the Veteran was able to resist his compulsion to act due to his disease. The Board finds the episode of misconduct does not represent a more or less prolonged deviation from the Veteran’s normal method of behavior. The facts demonstrate the Veteran had the ability to resist his urge for gratification, as indicated by his reported longtime history of resisting such urges before and after the offense. The Veteran had previously resisted such sexual urges, to include with the same three minors only one week prior, and by his own report had never acted on such “lifelong” urges after the incident that resulted in his bad conduct discharge. Such evidence additionally supports a finding that the Veteran demonstrated the adaptability to adjust to the social customs of his community. While the Veteran has repeatedly asserted his mental disorder in service was severe, the psychiatrist indicated the Veteran’s paraphilia was at worst moderate, and that the Veteran’s prognosis for recovery was good, in that intervention occurred before the Veteran’s fantasies could be reinforced by getting away with his activity repeatedly. The Board finds this is evidence that the Veteran did not demonstrate, due to paraphilia, a more or less prolonged deviation from his normal method of behavior, interference with the peace of society, or a lack of adaptability to adjust to the social customs of his community. Further, the Board finds the fact that the psychiatrist testified that the Veteran was not a danger to himself or others, that the Veteran was able to manage his personal and financial affairs, and that the Veteran would not be administered any psychotropic medications, is probative evidence against a finding of insanity. It is reasonable to conclude that a mental health professional would not state an individual is not a danger to himself or others, if, due to disease, that individual posed a risk of a more or less prolonged deviation from his normal method of behavior, interference with the peace of society, or that he lacked the adaptability to adjust to the social customs of his community. Additionally, the Board finds the service treatment records of the Veteran’s hospitalization for suicidal ideation, beginning on the same day the Veteran committed the indecent acts upon minors, offers probative evidence against a finding of insanity. During the Veteran’s hospitalization, he was diagnosed with “life circumstances.” During the five days of in-patient treatment, the providers found no evidence of hallucinations or delusions, or thought disorders. The Board has considered the entire evidence of record, and finds that the Veteran was not insane, as defined by VA regulations, at the time of the misconduct resulting in his bad conduct discharge by reason of the sentence of a general court martial. Accordingly, the Veteran’s character of discharge is a statutory and regulatory bar to the receipt of VA benefits based on his period of service from August 2, 1989 to October 12, 1994. REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disorder, claimed as paraphilia and/or anxiety The Veteran contends he has an acquired psychiatric disability that had onset during his period of honorable service from August 2, 1979 to August 1, 1989. The Veteran asserts he experienced symptoms of a psychiatric disorder, including anxiety, difficulty sleeping, and chest pains, which he associated with his diagnosis of paraphilia. The Veteran also reported symptoms of anxiety related to living in an allegedly dangerous area while stationed overseas. See February 2020 correspondence from the Veteran. The Veteran reported experiencing such symptoms since the early 1980’s. See October 2019 Board hearing transcript. In February 2020, the Veteran submitted online articles concerning symptoms of anxiety disorders, including chest pain, stomach upset, gastrointestinal symptoms, shortness of breath, and insomnia. The Veteran noted service treatment records document he was referred by a gastroenterologist for an echocardiogram in August 1983. The Veteran was evaluated for chest pain in September 1986. The provider observed the Veteran appeared anxious and indicated the Veteran’s chest pain was very unlikely of cardiac origin. See also May 2014 private treatment records (Dr. C.Y.C. suspected the Veteran’s report of chest pain symptoms were anxiety related). Additionally, the Veteran reported he frequently experienced diarrhea, stomach cramps, and nausea. VA treatment records document the Veteran has been diagnosed at various times with adjustment disorder with mixed mood, paraphilia, major depressive disorder, panic disorder, and posttraumatic stress disorder (related to a post service work accident). In August 2020, the examiner opined the Veteran did not have a diagnosis of paraphilia or generalized anxiety disorder. The examiner reported the Veteran had a current diagnosis of other specified trauma and stressor-related disorder that was due to a post service work accident. The August 2020 medical opinion does not appear to consider the medical evidence of record suggesting the Veteran has had other mental disorders diagnosed during the period on appeal. As such, the Board finds remand is necessary to obtain a new medical opinion as to whether the Veteran has a current psychiatric disorder that had onset in or is otherwise related to his honorable period of service from August 2, 1979 to August 1, 1989.   3. Entitlement to service connection for removal of gallbladder 4. Entitlement to service connection for residual scar of gallbladder removal The Veteran contends his gallbladder disease, resulting in removal of his gallbladder in May 2014, had onset during his period of honorable service from August 2, 1979 to August 1, 1989. See March 2017 VA Form 9 with associated correspondence; see also October 2019 Board hearing transcript. In a September 2020 VA medical opinion, the examiner reported the claims file was silent for any treatment notes, or referrals for a gastrointestinal or chest pain condition during military service, and therefore, opined it was less likely than not the Veteran’s claimed condition was incurred in or caused by service. However, as discussed above, the Veteran’s service treatment records do document treatment notes and referrals for a gastrointestinal or chest pain condition. Service treatment records document he was referred by the gastroenterology clinic for an echocardiogram in August 1983. In July 1985, the Veteran reported diarrhea and nausea, with no vomiting. The Veteran was evaluated for chest pain in September 1986. The provider indicated the Veteran’s chest pain was very unlikely of cardiac origin. In August 1987, the Veteran reported diarrhea for the previous nine to ten days, and a similar occasion a year earlier that lasted about three weeks. In light of the above, remand is necessary to obtain a new medical opinion as to whether the Veteran’s gallbladder disease had onset during his period of honorable service from August 2, 1979 to August 1, 1989. 4. Entitlement to service connection for diabetes mellitus The Veteran indicated laboratory results associated with his March 1994 separation examination documented low blood sugar. Based on the decision herein, the Board notes that the Veteran is barred from the receipt of VA benefits based on his period of service from August 2, 1989 to October 12, 1994. However, the Veteran contends symptoms of diabetes had onset during his honorable period of service from August 2, 1979 to August 1, 1989. See March 2017 VA Form 9 with associated correspondence; see also October 2019 Board hearing transcript. In a September 2020 VA medical opinion, the examiner reported she was unable to identify a diagnosis of diabetes mellitus rendered during or after service. The examiner reported the Veteran is currently pre-diabetic. Without further explanation, the examiner opined the Veteran’s reported symptoms of nausea, weakness, dizziness, and feeling faint in service were not early symptoms of diabetes. Diagnostic testing on examination in August 2020 and VA treatment records associated with the claims file demonstrate the Veteran does not have a current diagnosis of diabetes mellitus. However, private treatment records appear to indicate a diagnosis of diabetes mellitus. In a February 2014 private treatment record, the provider indicated the Veteran had made drastic changes to his diet and was taken off his medication for diabetes mellitus. The Veteran asserts that he manages his blood sugars through diet and exercise. See October 2020 correspondence from the Veteran. Given the above, the Board finds remand is necessary to obtain a new medical opinion as to whether the Veteran had a diagnosis of diabetes mellitus at any time during the course of the claim (filed January 2014) that is related to his period of honorable service from August 2, 1979 to August 1, 1989. 5. Entitlement to service connection for bilateral leg scarring, to include as secondary to diabetes mellitus The claim for entitlement to service connection for leg scarring is inextricably intertwined with the service connection claim for diabetes mellitus. See October 2020 correspondence from the Veteran. The Veteran reported he frequently hit his shins on equipment tow-bars when he was assigned to dispatch equipment to the flight line early in his military career. See also DD Form 214 (military occupational specialty is listed as aerospace ground equipment specialist). The Veteran contends his leg scarring is a result of slow healing of wounds due to diabetes mellitus. Given the Veteran’s report that his leg scarring is a direct result of injury in service, direct service connection for leg scarring should also be considered. To date, it does not appear that the Veteran has been afforded a VA examination for leg scarring. Such should be accomplished on remand. The matters are REMANDED for the following action: 1. Obtain a medical opinion from an appropriate examiner addressing the claim for service connection for psychiatric disorder. The examiner must review the Veteran’s claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for a new examination. Based on a review of the record, and if necessary, a new examination, the examiner should respond to the following: Is it at least as likely as not (50 percent or greater probability) that any currently diagnosed psychiatric disorder had onset in or is otherwise related to the Veteran’s period of honorable service from August 2, 1979 to August 1, 1989, to include the notation in September 1986? In rendering the opinion, the examiner should also address the Veteran’s contention that gastrointestinal symptoms and chest pain in service were manifestations of a psychiatric disability. A rationale for all opinions expressed should be provided. Obtain a medical opinion from an appropriate examiner addressing the claim for service connection for gall-bladder removal. The examiner must review the Veteran’s claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for a new examination. Based on a review of the record, and if necessary, a new examination, the examiner should opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s gallbladder disease had onset in or is otherwise related to the Veteran’s period of honorable service from August 2, 1979 to August 1, 1989. In rendering the opinion, the examiner should address the service treatment records noting gastrointestinal and chest pain complaints in August 1983 (referred by the gastroenterology clinic for an echocardiogram), in July 1985 (Veteran reported diarrhea and nausea, with no vomiting), in September 1986 (Veteran was evaluated for chest pain), and in August 1987 (Veteran reported diarrhea for the previous nine to ten days, and a similar occasion a year earlier that lasted about three weeks). A rationale for all opinions expressed should be provided. 2. Obtain a medical opinion from an appropriate examiner addressing the claim for service connection for diabetes mellitus. The examiner must review the Veteran’s claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for a new examination. Based on a review of the record, and if necessary, a new examination, the examiner should respond to the following: (a.) Indicate whether the Veteran had a conclusive diagnosis of diabetes mellitus at any time contemporaneous to the January 2014 filing of the claim or since that time. (b.) If so, please opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s diabetes mellitus had onset in or is otherwise related to the Veteran’s period of honorable service from August 2, 1979 to August 1, 1989. A rationale for all opinions expressed should be provided. 3. Schedule the Veteran for a VA examination to address the claim for service connection for leg scarring. Upon review of the record, interview and examination of the Veteran, the examiner should respond to the following: (a.) Identify any scarring on the Veterans legs. (b.) Is it at least as likely as not (50 percent or greater probability) that any identified leg scars had onset in or are otherwise related to the Veteran’s period of honorable service from August 2, 1979 to August 1, 1989? The examiner should consider and discuss the Veteran’s report of frequently hitting his shins on equipment tow-bars. A rationale for all opinions expressed should be provided. K. A. BANFIELD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.