Citation Nr: 21011464 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 11-21 221 DATE: March 1, 2021 ORDER Initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine with herniated disc, from August 28, 2019, is denied. Initial evaluation in excess of 10 percent for left lower extremity radiculopathy, sciatic nerve, is denied. Initial evaluation in excess of 10 percent for right ankle joint instability, status-post arthroscopy and ligament reconstruction, is denied. REMANDED Initial evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine with herniated disc, prior to August 28, 2019, is remanded. FINDINGS OF FACT 1. The Veteran's degenerative disc disease of the lumbar spine with herniated disc is not manifest by forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, from August 28, 2019. 2. The Veteran’s left lower extremity radiculopathy, sciatic nerve, is not manifest by moderate incomplete paralysis of the sciatic nerve. 3. The Veteran's right ankle joint instability, status-post arthroscopy and ligament reconstruction, does not result in moderate limitation of motion. CONCLUSIONS OF LAW 1. The criteria for an initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine with herniated disc, from August 28, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for an initial evaluation in excess of 10 percent for left lower extremity radiculopathy, sciatic nerve, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. 3. The criteria for an initial evaluation in excess of 10 percent for right ankle joint instability, status-post arthroscopy and ligament reconstruction, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5271. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2003 to March 2009. During the pendency of the appeal, a March 2020 rating decision assigned a 20 percent evaluation for degenerative disc disease of the lumbar spine with herniated disc, effective August 28, 2019. The rating decision also granted service connection for left lower extremity radiculopathy, sciatic nerve, as secondary to the Veteran's degenerative disc disease, with a 10 percent rating, effective March 2, 2009, the day following the date of the Veteran's separation from service. The Veteran's appeal of the degenerative disc disease claim encompassed ratings for all manifestations of the condition. Thus, the Board will consider whether an increased initial rating is warranted for the left lower extremity sciatic nerve involvement. See AB v Brown, 6 Vet. App. 35 (1993); 38 C.F.R. § 4 71a, Note (1). In October 2020, the Board remanded the degenerative disc disease and right ankle claims for additional development. There has been substantial compliance with the remand in connection with the claims for an initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine with herniated disc, from August 28, 2019, and an initial evaluation in excess of 10 percent for right ankle joint instability, status-post arthroscopy and ligament reconstruction, and the Board will proceed with their adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings With respect to each of the Veteran's claims, the Board observes that in general ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. With a claim for an increased initial rating, separate “staged” ratings may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. With respect to the Veteran's lumbar spine and right ankle claims, the Board additionally observes that when evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. 1. Initial evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine with herniated disc, from August 28, 2019, is denied. The Veteran generally contends that his degenerative disc disease of the lumbar spine with herniated disc warrants an initial evaluation in excess of 20 percent from August 28, 2019. VA recently amended the criteria for some musculoskeletal disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. In pertinent part, 38 C.F.R. § 4.71a, Diagnostic Code 5242 for degenerative arthritis of the spine was revised to apply to degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (IVDS). In addition, 38 C.F.R. § 4.71a, Diagnostic Code 5243 for IVDS was revised to include an instruction to assign this Diagnostic Code only when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 should be assigned for all other disc diagnoses. Significantly, the actual rating criteria (the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) and the Formula for Rating IVDS Based on Incapacitating Episodes) were not changed. In this case, Diagnostic Code 5243 would still apply to the Veteran's disability even after February 7, 2021, as his disability includes herniated disc, and thus the revisions would have no effect on the adjudication of his claim after that date. The Veteran’s lumbar spine disability is currently rated under Diagnostic Code 5243 for IVDS. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” Dorland’s Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Rating Formula at Note 5. The Board's October 2020 remand found that VA lumbar spine examinations conducted in March 2011, April 2015 and September 2019 were inadequate for evaluation purposes due to incomplete range of motion testing. The Board finds that the November 2020 Back (Thoracolumbar Spine) Conditions examination is adequate for evaluation purposes. The Board finds that the preponderance of the evidence is against an initial rating in excess of 20 percent for degenerative disc disease of the lumbar spine with herniated disc, from August 28, 2019, based on incapacitating episodes. The November 2020 examination report specifies that the Veteran does not have IVDS. Moreover, the Board observes that he does not contend that his lumbar spine disability has resulted in any incapacitating episodes since August 28, 2019. The Board finds that the preponderance of the evidence is also against an initial rating in excess of 20 percent for degenerative disc disease of the lumbar spine with herniated disc, from August 28, 2019, under the General Rating Criteria. The Veteran does not contend that his lumbar spine disability has resulted in ankylosis since August 28, 2019. Moreover, the November 2020 examination report specifies that the Veteran does not have ankylosis of the spine. He reported daily flare-ups with pain of 8/10 that lasted for minutes and occurred when he bent over. His initial range of motion was all normal, with pain noted on examination that did not cause or result in functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions, with no additional loss of function or range of motion after three repetitions. The examiner stated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time or with flare-ups. Passive range of motion was not tested as it was not feasible to do so in a safe and reasonable manner. There was no evidence of pain in weight-bearing or non-weight-bearing. The Board acknowledges the Veteran’s lay reports of pain, as made during VA examinations and noted in VA CAPRI records. He is competent to report symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, even considering his reports of pain, the November 2020 examination report shows that his pain did not result in limitation of motion. Regarding neurological impairment, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability other than his service-connected left lower extremity radiculopathy, sciatic nerve, addressed below. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for an initial evaluation in excess of 20 percent for his degenerative disc disease of the lumbar spine with herniated disc. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Initial evaluation in excess of 10 percent for left lower extremity radiculopathy, sciatic nerve, is denied. The Veteran has made no specific contentions regarding this claim. The Veteran’s disability is evaluated under 38 C.F.R. § 4.124a, Diagnostic Code 8620, for neuritis of the sciatic nerve, using the criteria under Diagnostic Code 8520 for paralysis of the sciatic nerve. Mild incomplete paralysis is rated as 10 percent disabling, and moderate incomplete paralysis is rated as 20 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The words “mild” and “moderate” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The Rating Schedule provides some guidance by stating that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for left lower extremity radiculopathy, sciatic nerve. The evidence of record is against a finding that the Veteran has moderate incomplete paralysis of the sciatic nerve. The Board’s October 2020 remand found that VA lumbar spine examinations conducted in March 2011, April 2015 and September 2019 were inadequate for evaluation purposes due to incomplete range of motion testing. Nevertheless, the Board finds that these VA examinations are adequate insofar as they describe the Veteran’s service-connected left lower extremity radiculopathy. A March 2011 VA General Medical examination report reveals that all neurologic and sensory examinations, including of the Veteran's left lower extremity, were normal or negative. A March 2011 VA lumbar spine examination report reveals that the Veteran's left lower extremity had normal vibration, position sense and pain or pinprick. Reflex examination was normal. Light touch was decreased, with inconsistent absence of sensation to 5.07 Semmes Weinstein filament testing of the left L4, L5 and S1 dermatomes in the left foot. There were no dysesthesias. Detailed motor examination was normal, muscle tone was normal and there was no muscle atrophy. An April 2015 VA Back (Thoracolumbar Spine) Conditions examination report relates that reflex and sensory examinations were normal and straight leg testing was negative. Due to radiculopathy, the Veteran had no constant left lower extremity pain, moderate left lower extremity intermittent pain, moderate left lower extremity paresthesias and/or dysesthesias and moderate left lower extremity numbness. He had no other signs or symptoms of radiculopathy. The left sciatic nerve was involved and the severity of the radiculopathy was described as moderate. The Veteran had no other neurological abnormalities or findings related to a thoracolumbar spine (back) condition, such as bowel or bladder problems/pathologic reflexes. An August 2019 VA Back (Thoracolumbar Spine) Conditions examination report relates that reflex and sensory examinations were normal and straight leg testing was positive on the left. Due to radiculopathy, the Veteran had moderate constant left lower extremity pain, moderate left lower extremity paresthesias and/or dysesthesias and moderate left lower extremity numbness. He had no other signs or symptoms of radiculopathy. The left sciatic nerve was involved and the severity of the radiculopathy was described as moderate. The Veteran had no other neurological abnormalities or findings related to a thoracolumbar spine (back) condition, such as bowel or bladder problems/pathologic reflexes. A November 2020 VA Back (Thoracolumbar Spine) Conditions examination report relates that reflex examination was normal. The Veteran had decreased sensation to light touch at the lower leg/ankle (L4/L5/S1). Straight leg testing was positive on the left. Due to radiculopathy, the Veteran had no constant left lower extremity pain, mild intermittent left lower extremity pain, mild left lower extremity paresthesias and/or dysesthesias and mild left lower extremity numbness. He had no other signs or symptoms of radiculopathy. The left sciatic nerve was involved and the severity of the radiculopathy was described as mild. The Veteran had no other neurological abnormalities or findings related to a thoracolumbar spine (back) condition, such as bowel or bladder problems/pathologic reflexes. In addition, VA CAPRI records include complaints of back pain with radiculopathy. The Board recognizes the April 2015 and August 2019 descriptions of the Veteran’s radiculopathy as moderate. However, the Board finds that, when viewed in its entirety, the evidence demonstrates that his left lower extremity radiculopathy, sciatic nerve, most closely approximates mild incomplete paralysis. The Board finds it significant that the March 2011 neurologic and sensory examinations were normal or negative and the decreased light touch was described as inconsistent, and that in November 2020 the radiculopathy was described as mild. Additionally, throughout the appeal period reflex testing has been consistently and repeatedly normal and the Veteran’s radiculopathy has been noted to result in no other signs or symptoms. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for an initial evaluation in excess of 10 percent for left lower extremity radiculopathy, sciatic nerve. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Initial evaluation in excess of 10 percent for right ankle joint instability, status-post arthroscopy and ligament reconstruction, is denied. The Veteran generally contends that his right ankle joint instability, status-post arthroscopy and ligament reconstruction, warrants an initial evaluation in excess of 10 percent. During an April 2015 VA Knee and Lower Leg Conditions examination to determine whether he has a right knee disability as a result of his service-connected right ankle disability, the Veteran stated that right ankle stability was a key issue and he had to be careful of where and how he walked. There were times that the right ankle gave out and he fell. Sometimes, he had to put on an ankle brace to help with stability. As noted above, VA recently amended the criteria for some musculoskeletal disabilities effective from February 7, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma, supra. However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. In pertinent part, 38 C.F.R. § 4.71a, Diagnostic Code 5271 for limited motion of the ankle was revised to define moderate limitation of motion as less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion, and marked limitation of motion as less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The rating criteria are otherwise unchanged, with moderate limitation of motion still warranting a 10 percent evaluation and marked limitation of motion still warranting a 20 percent evaluation. In this case, as discussed below, the only adequate VA examination of the Veteran's right ankle range of motion (conducted in November 2020) found that it was normal. Thus, the revision would have no effect on the adjudication of his claim after February 7, 2021. The Veteran’s right ankle disability is currently rated under Diagnostic Code 5271 for limited motion of the ankle. Diagnostic Code 5271 provides that moderate limitation of motion warrants a 10 percent evaluation and marked limitation of motion warrants a 20 percent evaluation. A higher evaluation is not provided. The words “marked” and “moderate” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The Rating Schedule provides some guidance by defining full range of motion of the ankle as 0 to 20 degrees of dorsiflexion and 0 to 45 degrees of plantar flexion. See 38 C.F.R. § 4.71a, Plate II. The Board finds that the preponderance of the evidence is against an initial rating in excess of 10 percent for right ankle joint instability, status-post arthroscopy and ligament reconstruction. The Board’s October 2020 remand found that VA right ankle examinations conducted in March 2011, April 2015 and September 2019 were inadequate for evaluation purposes due to incomplete range of motion testing. Nevertheless, the Board finds that these VA examinations are adequate insofar as they describe the Veteran's right ankle stability. In this regard, the March 2011 VA Joints examination report provides that the Veteran reported bilateral ankle instability. Physical examination found that he had no right ankle instability. The April 2015 VA Ankle Conditions examination report relates that the Veteran had right ankle instability of station, and suspected right ankle instability or dislocation. Right ankle Anterior Drawer test and Talar Tilt Test were negative for laxity compared with the opposite side. The examiner described the Veteran's right ankle instability as moderate. The September 2019 Ankle Conditions examination report relates that the Veteran had no instability of right side station. Right ankle instability or dislocation was not suspected. The Board finds that the November 2020 VA Ankle Conditions examination includes adequate range of motion testing and is therefore adequate for evaluation purposes. The Veteran had no right ankle instability of station. Right ankle instability or dislocation was suspected. Right ankle Anterior Drawer test was negative, and Talar Tilt Test was positive, for laxity compared with the opposite side. The Veteran denied flare-ups. His initial right ankle range of motion was all normal, with pain noted on examination that did not cause or result in functional loss. The Veteran was able to perform repetitive-use testing with at least three repetitions, with no additional loss of function or range of motion after three repetitions. The examiner stated that pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time or with flare-ups. There was no objective evidence of pain on passive range of motion testing. There was no evidence of pain in weight-bearing or non-weight-bearing. In addition, VA CAPRI records reflect that examination of the Veteran's right ankle was within normal limits in June 2011. The Board acknowledges the Veteran’s lay reports of symptoms of instability and pain. He is competent to report symptoms. Layno, supra. However, while instability has been found on examination, the Veteran has never been shown to have a positive right ankle Talar Tilt Test at any time during the appeal period. As this test has never shown laxity, his right ankle instability does not more closely approximate the highest evaluation of 20 percent under Diagnostic Code 5271. Moreover, even considering the Veteran's reports of pain, the November 2020 DBQ shows that his pain did not result in limitation of motion. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for an initial evaluation in excess of 10 percent for his right ankle joint instability status-post arthroscopy with ligament reconstruction. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Initial evaluation in excess of 10 percent for degenerative disc disease of the lumbar spine with herniated disc, prior to August 28, 2019, is remanded. Development requested by the Board's October 2020 remand has not been conducted and this issue is remanded to obtain the requested VA medical opinion. See Stegall, supra. The Board's remand cited Correia, supra, and emphasized that March 2011, April 2015 and September 2019 VA examinations failed to demonstrate range of motion testing for the Veteran’s lumbar spine on both active and passive motion and in weight-bearing and non-weight-bearing and were accordingly inadequate for evaluation purposes. The Board requested that on remand a VA examiner provide an estimate of lumbar spine range of motion measurements for active motion, passive motion, weight-bearing, and non-weight-bearing for the period prior to August 28, 2019. If it was not possible to provide a specific measurement without speculation, the examiner was to state whether the need to speculate was due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The matter is REMANDED for the following action: (Continued on the next page)   Obtain an addendum opinion from an appropriate clinician. After reviewing the Veteran's eFolder, the clinician should provide an estimate of lumbar spine range of motion measurements for active motion, passive motion, weight-bearing, and non-weight-bearing for the period prior to August 28, 2019. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.