Citation Nr: 21014110 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 15-22 796A DATE: March 11, 2021 ORDER Entitlement to a rating in excess of 10 percent for a grade 3 stress fracture, right foot first metatarsal is denied. Entitlement to a rating in excess of 10 percent for right wrist sprain is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), to include on an extraschedular basis, is denied. FINDINGS OF FACT 1. The Veteran’s grade 3 stress fracture, right foot first metatarsal is manifested by no more than moderate symptoms of pain on prolonged standing. 2. The preponderance of the evidence does not show a diagnosis of ankylosis in the right wrist. 3. The preponderance of the evidence does not show that the Veteran’s service-connected disabilities prevent her from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for grade 3 stress fracture, right foot first metatarsal have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5283. 2. The criteria for a disability rating in excess of 10 percent for right wrist sprain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, Diagnostic Code 5215. 3. The criteria for an award of a TDIU, to include referral for extraschedular consideration, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran was a member of the Connecticut National Guard and served on active duty from August 2012 through November 2012. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board considered these issues in a December 2018 decision, where they were remanded for the AOJ to review all new evidence received by the Board since the July 2015 SOC per 38 U.S.C. § 7104(a). The Board finds there was substantial compliance with the December 2018 remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran filed for a TDIU in March 2017 based on the impact of both the right and left wrist sprains as well as the grade 3 stress fracture, right foot first metatarsal. This claim was denied in a July 2017 rating decision, and the Veteran did not explicitly appeal this decision. However, the Board finds that entitlement to TDIU has been reasonably raised by record, and has taken jurisdiction of the matter herein. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009); Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545 552 (2008). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In order for an examination of the musculoskeletal system to be adequate under 38 C.F.R. § 4.40, the medical examiner “must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time.” DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Where feasible, the examiner should describe any limitations “in terms of the additional range-of-motion loss due to pain on use or during flare-ups.” Id.; see Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011) (explaining that, to comply with DeLuca, the examiner must state at what point in the range of motion the claimant experienced limited motion specifically attributable to pain). Before an examiner can conclude that an opinion on functional loss cannot be provided without resorting to speculation, the examiner must elicit and consider information from the Veteran or other sources about any additional functional loss experienced during a period of flare-ups and provide either an estimate of additional range-of-motion loss in degrees or an explanation for why such an estimate cannot be given. Sharp v. Shulkin, 29 Vet. App. 26, 33-36 (2017). Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Board observes that former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the AOJ. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9(b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904(d)(2), the Board will proceed to adjudicate the Veteran’s claim. 1. Entitlement to a rating in excess of 10 percent for a grade 3 stress fracture, right foot first metatarsal is denied. The Veteran contends that her grade 3 stress fracture, right foot first metatarsal (hereafter right foot stress fracture) is entitled to a disability rating in excess of 10 percent. The Veteran sustained a stress fracture during bootcamp and received treatment while on active duty. She claims that she has continued pain and swelling and cannot bear weight for prolonged periods. As will be shown below, the Board finds that the right foot stress fracture is not entitled to a moderately severe disability rating of 20 percent due to her symptoms. The Veteran’s right foot stress fracture is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5283, for nonunion or malunion of tarsal or metatarsal bones. Despite the recent change in regulation indicated above, Diagnostic Code 5283 did not undergo any changes, and the same rating criteria applies before and after February 7, 2021. Under Diagnostic Code 5283, a 10 percent rating is warranted for moderate nonunion or malunion of tarsal or metatarsal bones. A 20 percent rating is warranted for moderately severe nonunion or malunion of tarsal or metatarsal bones. A 30 percent rating is warranted for severe nonunion or malunion of tarsal or metatarsal bones. A Note to Diagnostic Code 5283 instructs that with actual loss of use of the foot rate as a maximum 40 percent. 38 C.F.R. § 4.71a, Diagnostic Code 5283. According to MERRIAM WEBSTER, “moderate” means “tending toward the mean or average amount or dimension”. See www.merriam-webster.com/dictionary/moderate. “Severe” means “of a great degree”. See www.merriam-webster.com/dictionary/severe. 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 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 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.” 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. Turning to the evidence of record, the Veteran was initially afforded an examination in November 2014 where the examiner diagnosed the Veteran with a right foot grade 3 stress fracture at the base of the 1st metatarsal. The examination report noted that the right foot was asymptomatic at rest and only flared up to 4/10 with walking more than a quarter mile, standing for over 10 minutes, climbing stairs, jumping, or running. During flares, the Veteran reported swelling, “numbness”, soreness, fatigue, lack of endurance. She indicated these flares occurred daily and lasted until she was able to rest for 10-15 minutes. This interfered with her ability to stand or walk for prolonged periods and with her ability to exercise and climb stairs. Based on these descriptors, the examiner found the Veteran’s right foot disability picture was “mild” in light of the fact that there had been no surgical history, and no required assistive devices or arch supports/orthotics necessary. The examiner noted the Veteran’s pain caused less movement than normal, pain on movement, excess fatigability, swelling, pain on weight bearing, and other functional impacts during flare-ups as described by the Veteran, but again, the pain was described as 4/10 and overall was of “mild” impact. The Veteran was afforded another VA examination in May 2017 where the Veteran again reported daily right foot pain worse with walking or standing. She indicated that she would be unable to perform a job that requires prolonged walking. At that time, the examiner noted a “moderate” foot condition with pain, less movement than normal, pain on weight-bearing, disturbance of locomotion, interference with standing, and lack of endurance. The examiner noted that the Veteran is unable to bear weight over the right foot with prolonged walking and would be precluded from employment that required such. Even so, the Veteran did not use any assistive devices, there was no ankylosis, and diagnostic testing, such as x-rays, did not reveal any other significant abnormality. In addition to VA examinations, VA outpatient treatment records also contain periodic references to right foot pain and swelling. In short, the evidence of record shows the Veteran’s right foot has resulted in pain, worsened with prolonged walking or other type of activities, sometimes described as “mild,” and other times described as “moderate.” The Veteran has never been prescribed assistive devices, orthotics, arch supports, surgical intervention, or the like for this pain, and it appears the pain subsides with rest. X-rays do not reveal significant abnormality, malunion, or nonunion or any bones of the foot. In short, there simply are no findings in the record that would support a basis to award a higher rating in this case. The Veteran is currently assigned a 10 percent rating for a “moderate” right foot stress fracture largely based on her subjective accounts of symptoms. The preponderance of the evidence is against any further increased rating. 2. Entitlement to a rating in excess of 10 percent for right wrist sprain is denied. The Veteran contends that she suffers from pain and limitation of motion deserving of a higher disability rating in her right wrist. She claims that she has constant pain and cramping, is unable to grab things and has difficulty writing. As will be shown below, the Board concludes that the Veteran does not meet the criteria for a disability rating higher than 10 percent as she does not suffer from ankylosis. Similar to the right foot condition, and as explained above, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Veteran’s right wrist condition is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5215, for limitation of motion of the wrist. Despite the recent change in regulation, however, Diagnostic Code 5215 did not undergo any changes, and the same rating criteria applies before and after February 7, 2021. Under Diagnostic Code 5215, a 10 percent disability rating (maximum) is warranted for palmar flexion limited in line with the forearm or dorsiflexion less than 15 degrees. Diagnostic Code 5215 does not provide for a rating in excess of 10 percent. 38 C.F.R. § 4.71a. Under Diagnostic Code 5214, for ankylosis of the wrist, a 30 percent disability rating is assigned for ankylosis favorable in 20 to 30 degrees dorsiflexion of the major extremity, and a 20 percent disability rating assigned for the minor extremity; a 40 percent disability rating is assigned for any other position except favorable ankylosis for the major extremity, and a 30 percent disability rating assigned for the minor extremity; a 50 percent disability rating is assigned for unfavorable ankylosis, in any degree of palmar flexion, or with ulnar or radial deviation for the major extremity, and a 40 percent disability rating assigned for the minor extremity. Extremely unfavorable ankylosis is rated as loss of use of hands under Diagnostic Code 5125. Turning to the evidence of record, the Veteran was initially afforded a VA examination in November 2014 where range of motion was measured at 0 to 60 degrees palmar flexion, 0 to 40 degrees dorsiflexion, 0 to 30 degrees ulnar deviation, and 0 to 35 degrees radial deviation. The Veteran complained of pain to 9/10 during flare-ups, which occurred with exercise, such as doing push-ups or any prolonged typing or writing, repetitive bending or lifting of the wrist. Flare-ups will typically last 30 minutes. Even taking into account pain on repetition and her description of flare-ups, the examiner did not estimate any additional loss of range of motion and noted 5/5 strength on testing. The examiner also found no evidence of ankylosis nor did the Veteran indicate she used assistive devices (such as a brace) for her wrist. Diagnostic testing, to include x-rays, did not reveal any significant abnormalities. Rather, the examiner diagnosed the Veteran with a chronic wrist sprain indicating the Veteran’s right wrist would preclude jobs requiring repetitive wrist use on the right and overall caused a “moderate impact” on the ability to work. She remained independent in performing activities of daily living. According to the April 2017 VA examination, there was no evidence of ankylosis of the right wrist. With consideration of functional loss due to pain, palmar flexion was measured no worse than 0 to 25 degrees, dorsiflexion 0 to 20 degrees, ulnar deviation 0 to 15 degrees, and radial deviation 0 to 15 degrees. The examiner opined that the Veteran would be unable to perform a job that required lifting and that moderate pain and fatigue was noted on examination causing functional loss at all ranges of motion. Right wrist strength was assessed at 4/5 with some evidence of muscle atrophy. The September 2020 VA examination similarly found no ankylosis. At that time, the Veteran reported a progression of her symptoms, to include a dull ache pain in the bilateral wrists, the right being worst. She indicated she could not grab anything without cramping pain in the wrists and that she was unable to workout or do a pushup. She indicated she had difficulty writing. Range of motion, even with consideration of functional loss due to pain or repetitive motion was no worse than palmar flexion limited to 50 degrees, dorsiflexion limited to 50 degrees, ulnar deviation limited to 30 degrees, and radial deviation limited to 15 degrees. Muscle strength testing at that time was 5/5 with no evidence of muscle atrophy. Strangely enough, despite the Veteran’s contention of “progression of symptoms” her symptoms appeared improved compared to the April 2017 VA examination presentation. X-rays continued to show no abnormalities of the wrists. The Veteran indicated she was currently working in human resources, although she lost 0-1 weeks-worth of time in the last 12 months due to the pain resulting from the diagnosed wrist conditions. The examiner noted that the wrist conditions may cause difficulties with lifting and holding objects. VA outpatient treatment records similarly show no evidence of ankylosis of the right wrist, and periodic complaints of pain or tenderness. The Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right wrist condition. An increased rating for the wrist is only possible under DC 5214 with a showing of ankylosis. As outlined above, even considering her description of functional impairment during flare-ups and on repetitive motion, there is no evidence her right wrist is ankylosed (frozen) or was ankylosed at any time during the pendency of this appeal. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to cramping, tenderness, pain, and a slight limitation of movement. However, even considering the Veteran’s lay reports of symptoms and functional loss, the Veteran’s symptoms do not meet the criteria for a 30 percent disability rating. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 10 percent for right wrist condition. 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. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU), to include on an extraschedular basis, is denied. The Veteran contends that she is unable to obtain employment due to her service-connected disabilities, as they prevent her from standing for long periods of time or comfortably writing or typing. The Board finds that the Veteran’s disabilities do not preclude her from obtaining or maintaining substantially gainful employment that align with her skills, education, and job history. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a 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. § 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. The Board is cognizant of the Court’s holding in Ray v. Wilkie that the term “substantially gainful occupation” is not defined in the rating schedule and, therefore, typically, a TDIU analysis has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability-factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability-factors include memory, concentration, ability to adapt to change, handle work-place stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The Board finds the issue of TDIU was reasonably raised at part and parcel of the Veteran’s claim seeking an increased rating for her right foot stress fracture and her right wrist condition. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, as part of a claim for increased compensation if entitlement to the disability upon which TDIU is based has already been found to be service connected). As noted in the introduction, the Board finds they have jurisdiction over this claim despite the RO’s ruling in the July 2017 rating decision. Since March 11, 2014, the Veteran has been service-connected for right wrist sprain, rated 10 percent disabling; left wrist sprain, rated 10 percent disabling; and grade 3 stress fracture, right foot 1st metatarsal, rated 10 percent disabling, with a combined disability rating of 30 percent. As such, the schedular threshold has not been met. Where, as here, a claimant does not meet the threshold criteria, a TDIU may be available on a different basis. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director, Compensation Service, for extraschedular consideration. Id. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). The Board instead reviews the issue to determine if referral for extraschedular consideration is warranted in light of the evidence provided to show if the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. The Veteran completed four years of college prior to enlistment in the Connecticut National Guard. She received training and worked as a bridge crewmember when on active duty. The Veteran’s service records do not indicate any other training or type of work during enlistment. After leaving service, the Veteran worked as an office manager from April 2013 through March 2015. During this time, the Veteran was promoted for her work. The application for TDIU and other records indicate a gap in employment, but recent records in 2019 indicated the Veteran was working to some extent. The Veteran’s physical disabilities include left wrist sprain, right wrist sprain, and a right foot stress fracture. These particular disabilities, the Veteran contends, have prevented her from working in the administrative support roles she had previously worked. The various VA examinations indicate there is discomfort and difficulty writing, grabbing, or typing as well as difficulty standing for long periods of time. As indicated above, the Board must consider both the economic and non-economic components of substantial gainful employment. From an economic perspective, the Veteran indicated on her March 2017 TDIU application that she completed four years of college and worked full time as an office manager from 2013 to 2015. Outpatient treatment records dated in 2014 also indicate she was promoted sometime in that year working in HR in an engineering firm to project management. In any case, she reported her wrists and stress fracture impacted her ability to write, type, and stand and appeared to have filed an application for education and vocational counseling in 2015 seeking training to obtain a better job. The claims file does not indicate if this course of action was pursued or if the Veteran received any other training, merely a desire to continue working and in a different position. In a medical note in the Veteran’s claims file, the Veteran indicated that she was working as recently as 2019 although the type of work was not explicitly stated. Thus, from the record, it appears from an economic standpoint the Veteran is college-educated and well suited for any sedentary office-type work. From a non-economic perspective, the medical evidence shows the Veteran’s service-connected bilateral wrist impairments and right foot first metatarsal disabilities cause no more than mild restrictions on employment. Indeed, VA examinations in November 2014, April 2017, May 2017, and September 2020, indicate the Veteran would have some occupational impairments, to include prolonged standing, weight-bearing, or any job that required lifting, but none of these examiners suggested the Veteran would be precluded from any substantial gainful employment. Indeed, in September 2020, the examiner noted the Veteran was currently working in human resources and only had missed approximately less than 1 week due to pain in the wrists. Incidentally, this September 2020 VA examination was the first time the Veteran reported issue with her left wrist. In short, although the Veteran indicates trouble with grabbing things, writing for prolonged periods of time, lifting heavy objects, and standing or walking for prolonged periods of time, there is nothing that suggests that she would not be able to work in office-type work, which is precisely what her education and work history has qualified her to do. Indeed, the September 2020 VA examination report suggests she is currently working in that capacity. The Board does not doubt that her wrists and foot disabilities cause some difficulties in her job function, but that is what her current disability ratings are meant to compensate. There is nothing to suggest she is precluded from work altogether and, indeed, there is evidence to the contrary. Thus, the Board finds the preponderance of the evidence is against referral for extraschedular consideration, and therefore referral for extraschedular consideration of a TDIU is not appropriate. The claim is denied. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Boivin, 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.