Citation Nr: 21014759 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 15-35 130A DATE: March 15, 2021 ORDERS Entitlement to an initial rating in excess of 10 percent for residuals of left proximal tibia stress fracture with left knee degenerative changes (left tibia stress fracture) is denied. Entitlement to an increased rating in excess of 10 percent for left knee instability with arthritis prior to February 7, 2021, is denied. Entitlement to an increased rating in excess of 20 percent for left knee instability with arthritis since February 7, 2021, is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran’s left tibia stress fracture has manifested by, at worst, limitation of flexion to 100 degrees without limitation of extension. 2. The Veteran’s left knee instability has manifested by mild instability for the entirety of the period on appeal. 3. The Veteran was prescribed a cane by a physician in January 2020 for his left knee instability. Recent regulations effective February 7, 2021, allow for a 20 percent rating when a Veteran has a sprain and a medically prescribed assistance device (cane) for ambulation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a left tibia stress fracture have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5014, 5260, 5261, 5262 (2018 and 2021). 2. The criteria for a rating in excess of 10 percent for a left knee instability prior to February 7, 2021, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5257 (2018). 3. The criteria for an increased rating of 20 percent for left knee instability, effective February 7, 2021, and thereafter, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DC) 5257 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1978 to October 1978. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The Board previously considered these matters in September 2018 and August 2017, when it remanded the case for additional development. In a November 2020 decision, the AOJ granted a separate 10 percent disability rating for instability of the left knee effective October 20, 2020. In a November 2020 rating decision, the AOJ separately granted service connection for left knee instability. The AOJ awarded a separate 10 percent rating for left knee instability, effective October 20, 2020. The Board takes jurisdiction of this matter as part and parcel of the increased rating claim for the knee as it is an inextricably intertwined issue. Rules and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, and the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, is to be avoided. 38 C.F.R. § 4.14. The critical element is that none of the symptomatology for any of the conditions is duplicative of or overlapping with symptomatology of the other conditions. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Thus, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart, 21 Vet. App. 505. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent to this case, in rating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated innervation, or other pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity, or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are relevant considerations for determination of joint disabilities. 38 C.F.R. § 4.45. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that 38 C.F.R. § 4.59 applies to disabilities other than arthritis). Although pain may cause functional loss, pain, itself, does not constitute functional loss and is just one factor to be considered when evaluating functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). 38 C.F.R. § 4.40 does not require a separate rating for pain but rather provides guidance for determining ratings under other diagnostic codes assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. 1. Entitlement to an initial rating in excess of 10 percent for a left tibia stress fracture is denied. The Veteran’s left tibia stress fracture is rated under 38 C.F.R. § 4.71a, DCs 5003-5260, applicable to limitation of flexion. Hyphenated diagnostic codes are used when a rating under one Diagnostic Code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27 In this regard, DC 5003, degenerative arthritis, established by X-ray findings, will be evaluated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint or joints involved. Limitation of motion must be objectively confirmed by such findings as swelling, muscle spasm or satisfactory evidence of painful motion. If there is painful motion of the knee with or without arthritis, and a compensable rating is not warranted based on limitation of motion, a 10 percent evaluation shall be assigned. See DC 5003, 5010; VAOPGCPREC 9-98; Mitchell, Burton, supra; 38 C.F.R. § 4.59. Separate ratings may be assigned for arthritis with limitation of motion and for subluxation or instability without constituting pyramiding, if the separate rating is based on additional disability. VAOPGCPREC 23-97. The normal range of motion of the knee is to 0 degrees (full extension) to 140 degrees (full flexion). 38 C.F.R. § 4.71a, Plate II. When flexion of the knee is limited to 45 degrees, a 10 percent rating may be assigned. When flexion is limited to 30 degrees, a 20 percent evaluation may be assigned. A 30 percent rating may be assigned when flexion of the leg is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. When extension of the knee is limited to 10 degrees, a 10 percent evaluation may be assigned. When extension is limited to 15 degrees, a 20 percent evaluation may be assigned. When limited to 20 degrees, a 30 percent rating may be assigned. When extension is limited to 30 degrees, a 40 percent evaluation is assignable. A 50 percent evaluation may be assigned when extension of the leg is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. 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. Impairment of the tibia and fibula is rated under Diagnostic Code 5262. Prior to the regulatory change, a 10 percent rating was warranted for malunion of the tibia or fibula with slight knee or ankle disability. A 20 percent rating is assigned for malunion of the tibia or fibula with moderate knee or ankle disability. Malunion with marked disability warrants a 30 percent rating. As of February 7, 2021, under the amended criteria, nonunion of the tibia and fibula, with loose motion, requiring brace warrants a 40 percent disability rating. Malunion of the tibia and fibula is evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee, or 5270 or 5271 for the ankle, whichever results in the highest evaluation. Medial tibial stress syndrome (MTSS), or shin splints, requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities, warrants a 30 percent disability rating. MTSS requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity warrants a 20 percent disability rating. MTSS requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities warrants a 10 percent disability rating. MTSS with treatment less than 12 consecutive months, one or both lower extremities, warrants a noncompensable rating.   Factual Background In this case, the Board finds that at no point during the appellate period has the Veteran’s left knee tibia stress fracture manifested by limitation of motion enough to warrant a higher rating, and no other diagnostic code is applicable. Therefore, the claim for increased rating for left tibia stress fracture must be denied. In an October 2013 statement, L. R., a friend of the Veteran, stated that she has witnessed him falling and being unable to stand upright or walk on numerous occasions. She stated she observed the severity of the swelling in both legs. She noted that he complained of constant pain and spent many days in bed due to his inability to function. In an October 2013 statement, the Veteran asserted that he had chronic pain in both extremities which manifested itself throughout his body making it difficult for him to physically perform daily tasks such as walking, sitting, and standing. He stated after numerous therapy sessions, he still had to be medicated for severe pain and was provided a leg brace to wear. These measures were of little assistance and caused him to fall when trying to walk or stand and even caused an inability to sit for long periods of time. Over time, the pain was unbearable, rendering him unable to perform simple daily tasks. The Veteran was afforded a VA examination for his knees in February 2014. The diagnoses were left knee tibia stress reaction and osteoarthritis. The Veteran reported he developed left leg problems after having a right leg condition which he thought was due to placing more weight on his left leg. The Veteran complained of flare-ups, however, the examiner found it is impossible to state, without undue speculation, whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups or when the joint was used repeatedly over a period of time. Range of motion findings included flexion to 110 degrees, with pain at 110 degrees, and extension to zero degrees, with pain at zero degrees. Upon repetitive use testing, there was no additional loss of range of motion. The examiner reported functional loss, functional impairment or additional limitation of range of motion of the knee and lower leg after repetitive use, less movement than normal, pain on movement, and interreference with sitting, standing, and weight-bearing. There was tenderness to palpation. Muscle strength and joint stability testing were normal. The Veteran reported occasional use of a cane. He had difficulty with climbing. X-ray testing showed no major abnormality, possible mild stress reaction upper tibia and mild to moderate degenerative joint disease in the knee. The Veteran was afforded another VA examination for his left knee in August 2019. The diagnosis was left knee tibia stress reaction with arthritis. He reported having constant pain and weakness. He reported his left knee would give out. He complained of difficulty climbing, getting up from sitting, standing, and walking for long periods of time. He denied experiencing any flare-ups. He complained of difficulty climbing, getting up from sitting, standing, and walking for long periods. Range of motion findings included flexion to 110 degrees and extension to zero degrees. Pain was noted and caused functional loss. There was evidence of pain with weight bearing and crepitus. There was no additional loss of range of motion upon repetitive use testing. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over a period of time. Muscle strength was diminished, 4/5, at left knee flexion. The examiner noted that reduction was entirely due to the Veteran’s knee disability. Joint stability testing was normal. The Veteran reported he occasionally used a brace and regularly used a cane. The Veteran underwent additional VA examination for his knees in October 2020. The diagnosis was left knee joint osteoarthritis. The Veteran reported experiencing left knee pain that is worsening due to more weight applied to the knee after surgery treated with physical therapy. The Veteran reported that the condition impacts his daily activity in the following ways: difficulty walking or standing due to pain and limited range of motion. He specifically denied experiencing flare-ups. He reported constant throbbing in his knees with no significant precipitating flare-up occurrences. Range of motion findings included flexion to 130 degrees and extension to zero degrees. Pain with flexion and extension was noted on exam but did not result in or cause functional loss. Moderate localised tenderness or pain on palpation was noted. There was evidence of pain with weight bearing and crepitus. There was no additional loss of function or range of motion upon repetitive use testing. The examination is medically consistent with the Veteran’s statements describing functional loss with repetitive use over time. Pain and weakness were noted to significantly limit functional ability with repeated use over time. Range of motion was estimated as flexion to 100 degrees and extension to zero degrees. The Veteran also reported interreference with standing and sitting. Muscle strength testing was 4/5 without reduction in muscle strength. There was objective evidence of pain on passive range of motion testing of the left knee. There was no evidence of pain on non-weight bearing testing of the left knee. The examiner found that for the VA established diagnosis of left leg tibia stress reaction with arthritis, the diagnosis is changed, and it is a progression of the previous diagnosis. The Veteran is experiencing more pain and weakness in the left knee status-post right knee replacement. Analysis The Veteran’s left tibia stress fracture is currently rated as 10 percent disabling by analogy under the diagnostic codes for degenerative arthritis and limitation of flexion. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating; the additional diagnostic code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, the Board finds that with respect to a rating in excess of 10 percent for limited range of motion of the left knee, given that the VA examinations do not reflect limited range of motion sufficient for a 20 percent rating of the left knee, there is no evidence to support a finding of additional functional loss for a higher rating. As mentioned above, under DC 5260, flexion of the knee must be limited to 30 degrees for a 20 percent rating. Considering functional loss from pain, the VA examinations reflected flexion of the left knee no less than 100 degrees. Under DC 5261, extension of the knee must be limited to 10 degrees to warrant a separate 10 percent rating. The VA examinations of record reflected full extension to zero degrees of the left knee, even considering additional functional loss caused by pain. Thus, the Veteran is not entitled to a rating in excess of 10 percent for limited range of motion of the left knee. Additionally, the Veteran’s documented subjective reports of symptoms and limitations in walking, standing, and sitting have been considered and can be interpreted such that the limitations do not more nearly approximate flexion limited to 30 degrees or extension limited to 10 degrees in either knee. The Veteran complained of flare-ups during the February 2014 VA examination. However, the examiner noted that the it is impossible to state, without undue speculation, whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare ups, or when the joint is used repeatedly over a period of time. On VA examination in August 2019 and October 2020, the Veteran denied flare-ups, but examiner estimated a loss of motion to 100 degrees with repetitive motion. Moreover, the Veteran has never reported that there was any circumstance or condition that would limit his range of motion beyond what was documented. Overall, there is no evidence in the record or indication by the Veteran that any repeated use or pain limits the range of motion of his left knee such that the left knee would only flex to 30 degrees or extend to 10 degrees. Indeed, no VA examination documents any limitation in extension, even with pain, and the Veteran has not reported an inability to straighten his knees. Similarly, no VA examination documents any limitation in flexion beyond 90 degrees with pain, and the Veteran has not reported any limitation in flexion under any circumstances, even with repeated use or pain, beyond what was documented in the VA examinations. The Veteran’s complaints of difficulty climbing, getting up from sitting, standing and walking for long periods have been taken into consideration, but there is no evidence that his service-connected left tibia stress fracture results in significant or additional functional loss beyond that contemplated by the assigned 10 percent evaluation for loss of motion. See 38 C.F.R. § 4.71, DCs 5260-5261; 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board also considered whether a separate or increased rating was warranted under Diagnostic Code 5262 for the Veteran’s left tibia stress fracture. Although the Veteran is service connected for his residuals of left proximal tibia stress fracture with degenerative changes, there is no evidence of either malunion of the tibia or fibula or current treatment for left lower extremity stress fracture. As such, a separate or increased rating under DC 5262, both before and after February 7, 2020, is not warranted. Finally, the Board concludes that a higher rating is not warranted under any other diagnostic code, as no other diagnostic codes are applicable to the knee. There is no evidence of meniscal removal or dislocation during the appellate period such that a separate rating would be in order under either the provisions of DCs 5258 or 5259. The Board will separately discuss left knee instability below. The Veteran’s claim for a rating in excess of 10 percent for limitation of movement associated with the Veteran’s left tibia stress fracture is denied. The Board finds that the preponderance of the evidence is against the claim, and the benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement to an initial rating in excess of 10 percent for a left knee instability. The Veteran’s left knee instability is rated under 38 C.F.R. § 4.71a, DCs 5003-5257. Recurrent subluxation or lateral instability is rated under Diagnostic Code 5257. Prior to the regulatory change, 10, 20, or 30 percent ratings were available for slight, moderate, or severe recurrent subluxation or lateral instability, respectively. 38 C.F.R. § 4.71a, DC 5257. Consideration of pain for a higher rating, under 38 C.F.R. §§ 4.40 and 4.45, is not appropriate because DC 5257 is not based on loss of range of motion. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The Court recently made clear that objective medical evidence is not required to establish lateral instability under DC 5257, and the Board cannot categorically find that objective medical evidence is more probative than lay evidence without explaining why the finding was made. English v. Wilkie, 30 Vet. App. 347, 349-50 (2018); Petitti v. McDonald, 27 Vet. App. 415 (2015). The Board may find lay evidence not competent with respect to whether lateral instability exists, but an explanation must be provided. If the Board finds that lay evidence is generally competent concerning lateral knee instability, it may still discount that lay evidence on a case-by-case basis and weigh it against medical evidence in the Board’s role as fact finder. English, 30 Vet. App. at 353. The former or updated diagnostic code is applied as explained above. See 38 U.S.C. § 5110(g). As of February 7, 2021, under the amended criteria, recurrent subluxation and lateral instability of the knee warrants a 30 percent rating for unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribed both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. A 20 percent rating is warranted for either a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; OR an unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 10 percent rating is warranted for a Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Alternatively, if there is a finding of patellar instability, a 30 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. A 20 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 10 percent rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Note (1) to diagnostic code 5257 states that for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. Note (2) states that a surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Analysis The Veteran’s left knee instability with arthritis is currently rated as 10 percent disabling by analogy under the diagnostic codes for degenerative arthritis and limitation of flexion. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating; the additional diagnostic code is shown after the hyphen. 38 C.F.R. § 4.27. In this case, the Board finds that prior to February 7, 2021, a rating in excess of 10 percent for mild recurrent subluxation is not warranted. The evidence of record demonstrates that the Veteran’s symptoms more closely resemble mild instability of +1, 0-5 millimeters for his left knee. At no time did his left knee exhibit a rating of 2+, 5-10 millimeters on any examination. As such, under the pre-February 7, 2021, Diagnostic Code 5257, the Veteran does not qualify for a 20 percent disabling rating of moderate recurrent subluxation or instability. Under the post-February 7, 2021, Diagnostic Code 5257, however, after resolving all reasonable doubt in his favor, the Board finds that the totality of the evidence shows that the Veteran meets a 20 percent rating for his left knee. The Veteran was referred to physical therapy for prescription of a cane for his left knee instability in January 2020. While the record does not reflect if a cane was prescribed, the Veteran is given the benefit of the doubt in this matter. It is further supported by the Veteran reporting constantly using a cane for locomotion at his October 2020 VA examination. Further, the evidence also shows a posterior left knee instability of 0-5 millimeters. Therefore, considering the totality of the evidence of record, the Veteran’s left knee instability more closely is approximated by a 20 percent rating under the new Diagnostic Code 5257 from February 7, 2021. There is no evidence that the Veteran’s left knee has a unrepaired or failed repair of a complete ligament tear causing persistent instability, and a medical provider prescribed both an assistive device and bracing for ambulation. Therefore, a higher, 30 percent rating is not warranted. In conclusion, the Veteran’s claim for an increased rating for his left knee instability is staged as follows: as 10 percent disabling prior to February 7, 2021, and increased to 20 percent disabling, but no greater, effective February 7, 2021 and thereafter. As noted above, the Board may only apply the new regulations from their effective date, which is February 7, 2021. In rendering a decision on appeal, the Board has resolved all reasonable doubt in favor of the Veteran. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. M. Donahue Boushehri, 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.