Citation Nr: 21013068 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 18-41 015 DATE: March 8, 2021 ORDER Entitlement to a disability rating in excess of 70 percent for posttraumatic stress disorder (PTSD) with unspecified depressive disorder since September 2, 2020, is denied. A 70 percent disability rating for PTSD with unspecified depressive disorder from November 21, 2017, to September 1, 2020, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a disability rating in excess of 50 percent for PTSD with unspecified depressive disorder prior to November 21, 2017, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) from November 21, 2017, to April 11, 2018, is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to TDIU prior to November 21, 2017, is denied. FINDINGS OF FACT 1. The weight of evidence is against a finding that the service-connected PTSD with unspecified depressive disorder has been manifested by a total occupational and social impairment since September 2, 2020. 2. The evidence is in equipoise as to whether from December 13, 2017, to September 1, 2020, the service-connected PTSD with unspecified depressive disorder was manifested by an occupational and social impairment with deficiencies in most areas due to impaired impulse control, such as unprovoked irritability with periods of violence, and difficulty adapting to stressful circumstances, including work or work-like setting. 3. The evidence is in equipoise as to whether the service-connected PSTD with unspecified depressive disorder underwent an increase in disability from November 21, 2017, to December 12, 2017. 4. The weight of evidence is against a finding that from December 13, 2016, to November 20, 2017, the service-connected PTSD with unspecified depressive disorder was manifested by an occupational and social impairment with deficiencies in most areas. 5. From December 13, 2016, to April 11, 2018, the Veteran was service-connected for PTSD with unspecified depressive disorder, fracture of the left (minor) wrist, and type II diabetes mellitus. 6. From November 21, 2017, to April 11, 2018, these service-connected disabilities were rated 80 percent disabling with the psychiatric disorder now being rated 70 percent disabling. 7. The evidence is in equipoise as to whether from November 21, 2017, to April 11, 2018, the Veteran’s service-connected disabilities rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. 8. From December 13, 2016, to November 20, 2017, the service-connected disabilities were rated 60 percent disabling with the psychiatric disorder being rated 50 percent disabling. 9. The weight of evidence is against a finding that from December 13, 2016, to November 20, 2017, the Veteran’s service-connected disabilities rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience as to warrant consideration of TDIU on an extraschedular basis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 70 percent for PTSD with unspecified depressive disorder since September 2, 2020, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411 (2020). 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for a 70 percent disability rating for PTSD with unspecified depressive disorder from November 21, 2017, to September 1, 2020, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411. 3. The criteria for a disability rating in excess of 50 percent for PTSD with unspecified depressive disorder from December 13, 2016, to November 20, 2017, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.130, Diagnostic Code 9411. 4. Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to TDIU from November 21, 2017, to April 11, 2018, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.19 (2020). 5. The criteria for entitlement to TDIU prior to November 21, 2017, 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 1968 to September 1970. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a January 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2020, the Board remanded the claim for an increased rating for PTSD for further development. In a September 2020 rating decision, a RO assigned a 70 percent disability rating for PTSD with unspecified depressive disorder effective September 2, 2020. As the 70 percent disability rating is not the maximum rating available for the psychiatric disorder, the claim remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). In September 2018, the Veteran filed a formal TDIU claim in which he alleged that he could not work because of his PTSD and diabetic neuropathy. Since entitlement to TDIU is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, it can be part of the initial adjudication of a claim for increase. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Thus, the TDIU claim is part of the increased rating claim for PTSD. In a December 2018 rating decision, the RO granted special monthly compensation based on housebound criteria effective from April 18, 2018, based on the four diabetic peripheral neuropathies of the upper and lower extremities being 100 percent disabling and the remaining service-connected disabilities being 60 percent or more disabling. In that December 2018 rating decision, the RO determined that the TDIU claim is moot. The Board is cognizant of the decision of the United States Court of Appeals for Veterans Claims (the Court) in Bradley v. Peake, 22 Vet. App. 280 (2008) in which the Court held that, although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation based on housebound status. Here, however, the Veteran has been awarded special monthly compensation based on housebound status, effective from April 18, 2018. As such, only the issue of entitlement to TDIU prior to April 18, 2018, is part of the current appeal. VA’s duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). 1. Entitlement to a disability rating in excess of 70 percent for PTSD with unspecified depressive disorder since September 2, 2020 2. Entitlement to a disability rating in excess of 50 percent for PTSD with unspecified depressive disorder from November 21, 2017, to September 1, 2020 3. Entitlement to a disability rating in excess of 50 percent for PTSD with unspecified depressive disorder prior to November 21, 2017 Governing law and regulations Pursuant to Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board must consider the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. PTSD is evaluated under the general rating formula for mental disorders. Under those criteria, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. 38 C.F.R. § 4.130, Diagnostic Code 9411. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Analysis In a May 2002 rating decision, a RO granted service connection for PTSD and assigned a 30 percent disability rating effective December 13, 2001. In an April 2008 rating decision, a 50 percent disability rating for PTSD was assigned effective August 22, 2007. On December 13, 2017, the RO received the Veteran’s claim for an increased rating. In the September 2020 rating decision, a RO essentially granted service connection for unspecified depressive disorder and assigned a 70 percent disability rating for PTSD with unspecified depressive disorder effective September 2, 2020. There is no evidence of any of the following: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. A September 2, 2020, VA examination report and a September 17, 2020, VA treatment record do not show these symptoms. As for whether the Veteran’s impaired impulse control causes him to be in persistent danger of hurting himself or others, the September 2020 examination report and this VA treatment record reflect that the Veteran denied suicidal and homicidal ideations. The Board places great weight on the September 2020 VA examiner’s finding that the Veteran was not in persistent danger of hurting himself or others. Thus, the weight of evidence does not show that the PTSD with unspecified depressive disorder has been manifested by persistent danger of hurting himself or others since September 2, 2020. The September 2020 VA examination report reveals that the Veteran was currently married and that he had positive family relationships with his adult children. The Veteran was unemployed at the time of the examination. At a November 2018 VA examination, the Veteran reported that he stopped working in 2008 when he was a bus driver because he moved to another state. He reported that pain interfered with his ability to drive buses. The Board places great weight on the September 2020 VA examiner’s finding that the occupational impairment was only manifested by reduced reliability and productivity. In summary, the weight of evidence is against a finding that the service-connected PTSD with an unspecified depressive disorder has been manifested by a total occupational and social impairment since September 2, 2020. The preponderance of evidence is against the claim, and it is denied. As for the period prior to September 2, 2020, there is no evidence of any of the following: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; spatial disorientation; neglect of personal appearance and hygiene; and an inability to establish and maintain effective relationships. VA treatment records and the January and November 2018 VA examination reports do not show these symptoms. The January 2018 VA examination report reveals that the examiner stated that the Veteran only had an occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, though generally functioning satisfactorily with normal routine behavior, self-care, and conversation. The examiner indicated that the Veteran did not have impaired impulse control, such as unprovoked irritability with periods of violence, and difficulty adapting to stressful circumstances, including work or work-like setting. The November 2018 VA examination report reveals that the examiner stated that the Veteran only had an occupational and social impairment with reduced reliability and productivity. The examiner indicated that the Veteran did not have impaired impulse control, such as unprovoked irritability with periods of violence, and difficulty adapting to stressful circumstances, including work or work-like setting. The examiner noted that the PTSD is manifested by irritable behavior and angry outbursts (with little or no provocation) that are typically expressed as verbal or physical aggression toward people or objects. The Veteran endorsed irritability and reported that he secludes himself when he feels irritable. He denied any physical altercations. The examiner noted that interpersonal functioning may be intermittently impaired due to irritability and the tendency to isolate. VA treatment records reflect that in March 2018 the Veteran reported that the goals of treatment included reducing symptoms of PTSD that including irritability. In August 2020, he reported that his irritability and temper continue to exist. He, however, denied any recent problem with physical violence. In a February 2021 written brief presentation, the representative argues that a higher rating is warranted because the November 2018 and December 2020 VA examination reports show the same symptomatology. The Board notes that both examiners stated that the Veteran had an occupational and social impairment with reduced reliability and productivity. The December 2020 VA examiner, however, found that the Veteran has impaired impulse control, such as unprovoked irritability with periods of violence, and difficulty adapting to stressful circumstances, including work or work-like setting. As to the level of irritability, the Board notes that the January 2018 VA examiner found interpersonal functioning may be intermittently impaired due to irritability and the tendency to isolate. Given the evidence of irritability prior to December 2, 2020, the evidence is in equipoise as to whether from December 13, 2017, to September 1, 2020, the service-connected PTSD with unspecified depressive disorder was manifested by an occupational and social impairment with deficiencies in most areas due to impaired impulse control, such as unprovoked irritability with periods of violence, and difficulty adapting to stressful circumstances, including work or work-like setting. As for whether a 100 percent disability rating is warranted from December 13, 2017, to September 1, 2020, there is no evidence of any of the following: gross impairment in thought processes or communication, grossly inappropriate behavior, intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene), or disorientation to time or place. The January and November 2018 VA examination reports and VA treatment record do not show these symptoms. As for the Veteran’s impaired impulse control causes the Veteran to be in persistent danger of hurting himself or others, the September 2020 examination report and the VA treatment records reflect that the Veteran denied suicidal and homicidal ideations. The Board places great weight on the January and November 2018 VA examiners’ findings that the Veteran was not in persistent danger of hurting himself or others. Thus, the weight of evidence does not show that the PTSD with unspecified depressive disorder was manifested by persistent danger of hurting himself or others from December 13, 2017, to September 1, 2020. As for persistent delusions or hallucinations, at the November 2018 VA examination the Veteran reported vague transient visual hallucinations. The VA treatment records reflect that mental status evaluations found no delusions or hallucinations. The Board places great weight on the January and November 2018 VA examiners’ findings that the Veteran did not have persistent delusions or hallucinations. Therefore, the weight of evidence does not show that the PTSD with unspecified depressive disorder was manifested by persistent delusions or hallucinations from December 13, 2017, to September 1, 2020. With regard to memory impairment, at the November 2018 VA examination the Veteran endorsed memory problems. The Board places considerable weight on the January and November 2018 VA examiners’ findings that the Veteran had mild memory loss, such as forgetting names, directions, or recent events, and that he did not have memory loss for names of close relatives, own occupation, or own name. Therefore, the weight of evidence does not show that the PTSD with unspecified depressive disorder was manifested by memory loss for names of close relatives, own occupation, or own name from December 13, 2017, to September 1, 2020. The 2018 VA examination report reveals that the Veteran was currently married and that he had close relationships with his adult children and his siblings. The Veteran was at the unemployed at the time of the examinations. As noted above, the Veteran stopped working in 2008 when he moved to another state and that he reported that pain interfered with his ability to be a bus driver. The Board places great weight on the November 2018 VA examiner’s finding that the occupational impairment was only manifested by reduced reliability and productivity. In short, the weight of evidence is against a finding that the service-connected PTSD with an unspecified depressive disorder was manifested by a total occupational and social impairment from December 13, 2017, to September 1, 2020. As for the period from December 13, 2016, to December 12, 2017, the one-year period prior to the date of claim, VA treatment records reveal that on November 21, 2017, the Veteran described his mood as depressed and irritable. He described his temper as being under pretty good control because he isolates himself. He stated that he avoids most people because of his temper. In May 2017, he endorsed occasional irritability. In May 2013, the Veteran’s mood was fair with some irritability. The medical evidence shows that the level of irritability and isolation that the Veteran reported on November 21, 2017, is similar to the levels of irritability and isolation since December 12, 2017. Thus, the evidence is in equipoise as to whether the service-connected PSTD with unspecified depressive disorder underwent an increase in disability on November 21, 2017, and a 70 percent disability rating for PTSD with unspecified depressive disorder from November 21, 2017, to December 12, 2017, is warranted. As for whether a 100 percent disability rating is warranted from November 21, 2017, to December 12, 2017, there is no evidence of any of the following: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. As noted above, the medical evidence shows that the Veteran’s impaired impulse control does not put him in persistent danger of hurting himself or others. Furthermore, the medical evidence does not show persistent delusions or hallucinations or memory loss for names of close relatives, own occupation, or own name. For the period from December 13, 2016, to November 20, 2017, the Board places great weight on the May 2017 VA treatment record showing that the irritability was only occasional in frequency in determining whether the Veteran had impaired impulse control and difficulty adapting to stressful circumstances, including work or work-like setting. Given the infrequency of the irritability, the weight of evidence does not show that from December 13, 2016, to November 20, 2017, the PTSD with unspecified depressive disorder was manifested by impaired impulse control, such as unprovoked irritability with periods of violence, and difficulty adapting to stressful circumstances, including work or work-like setting. The weight of evidence is against a finding that from December 13, 2016, to November 20, 2017, the service-connected PTSD with unspecified depressive disorder was manifested by an occupational and social impairment with deficiencies in most areas. 4. Entitlement to TDIU from November 21, 2017, to April 11, 2018 5. Entitlement to TDIU prior to November 21, 2017 Governing Law and Regulations Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation without regard to advancing age as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Age cannot be considered as a factor in evaluating a service-connected disability. Unemployability associated with advancing age or intercurrent disability cannot be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Even if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b)(1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1), as discussed above, is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran’s disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Additionally, the Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran’s claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. For a veteran to prevail on a claim for a total compensation rating based on individual unemployability, the record must reflect some factor, which takes this case outside the norm. The simple fact that a claimant is currently unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993) (A high rating is recognition that the impairment makes it difficult to obtain or keep employment.). Analysis As noted above, the issue of TDIU prior to April 12, 2018, is still pending because special monthly compensation based on housebound status has been granted effective April 12, 2018. From December 13, 2016, to April 11, 2018, the Veteran was service-connected for PTSD with unspecified depressive disorder, fracture of the left (minor) wrist, and type II diabetes mellitus. From November 21, 2017, to April 11, 2018, these service-connected disabilities were rated 80 percent disabling with the psychiatric disorder now being rated 70 percent disabling. This makes him eligible for consideration under 38 C.F.R. § 4.16(a) from November 21, 2017, to April 11, 2018. From December 13, 2016 (one year prior to the increased rating claim) to November 20, 2017, the service-connected disabilities were rated 60 percent disabling with the psychiatric disorder being rated 50 percent disabling. The various service-connected disabilities are not considered one disability for purposes of 38 C.F.R. § 4.16(a). In the absence of a single disability being rated 60 percent disabling or all disabilities being rated at least 70 percent disabling, the Veteran is not eligible for consideration under 38 C.F.R. § 4.16(a) from December 13, 2016, to November 20, 2017. In his September 2018 formal TDIU claim, the Veteran reported that he last worked full time in November 2008 when he became too disabled to work. He noted that he had two years of high school and that he had no additional education or training before or after he became too disabled to work. In his formal TDIU claim, the Veteran stated that he was unemployable because of his diabetic neuropathy and PTSD. Service connection was granted for four peripheral neuropathies effective April 12, 2018. Therefore, the Board cannot consider these neurological disabilities in adjudicating the TDIU claim. A July 2014 VA PTSD examination report reflects that the Veteran stated that his primary reason for retiring from bus driving was physical issues that included back and arm pain. The examiner stated that the Veteran only had an occupational and social impairment with reduced reliability and productivity. The Veteran’s only symptoms were depressed mood, chronic sleep impairment, disturbances of motivation and mood, and mild memory loss, such as forgetting names, directions, or recent events. A July 2014 VA diabetes mellitus examination report reveals that the Veteran did not require regulation of activities as part of medical management of diabetes mellitus. A November 2018 VA wrist examination report shows that the left wrist disability would impact his ability to perform the duties of a job that required bending or flexing his left wrist. The employment impairment of PTSD with unspecified depressive disorder in 2017 and 2018 have been discussed above in the analysis of the increased rating claim. The Board places great weight on the evidence of impaired impulse control, such as unprovoked irritability with periods of violence, and difficulty adapting to stressful circumstances, including work or work-like setting, from November 21, 2017, to April 11, 2018. Based on this evidence as well as the finding in the November 2018 VA examination report regarding impairment from the left wrist disability, the evidence is in equipoise as to whether from November 21, 2017, to April 11, 2018, the Veteran’s service-connected disabilities rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience. As for the period from December 13, 2016, to November 20, 2017, the Board places great weight on the May 2017 VA treatment record showing that the Veteran’s irritability was only occasional in frequency and on the findings in the March 2014 VA examination reports, particularly the Veteran’s reporting that his primary reason for retiring from bus driving was physical issues that included back and arm pain. Given the evidence of only occasional irritability and employment impairment from a non-service-connected back disability, the weight of evidence is against a finding that from December 13, 2016, to November 20, 2017, the Veteran’s service-connected disabilities rendered him unemployable from performing all forms of substantially gainful employment that are consistent with his education and occupational experience as to warrant consideration of TDIU on an extraschedular basis.   Therefore, TDIU from December 13, 2016, to November 20, 2017, is not warranted. The preponderance of evidence is against the claim, and it is denied. MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cherry, 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.