Citation Nr: 21015466 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 08-06 588 DATE: March 17, 2021 ORDER Entitlement to service connection for a lung disorder is denied. REMANDED Entitlement to an evaluation greater than 10 percent for gastroesophageal reflux disorder (GERD) is remanded. FINDING OF FACT The Veteran has chronic obstructive pulmonary disorder (COPD); however, the Veteran’s COPD was not sustained during his active duty service and is not related to an injury, illness, or event that occurred during service, to include in-service vaccinations. CONCLUSION OF LAW The criteria for service connection for a lung disorder are not met. 38 U.S.C. §§ 1110, 1153, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from April 1969 to November 1970. These matters are on appeal from January 2006 and August 2015 rating decisions. The appeal was remanded in September 2010, June 2014, and August 2015 for additional evidentiary development. In March 2016, the Board of Veterans’ Appeals (Board) denied the issue of entitlement to service connection for a lung disorder and remanded the issue of entitlement to a higher evaluation for GERD for issuance of a statement of the case. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2016, the Court granted a Joint Motion for Partial Remand (JMPR) that vacated and remanded the Board’s March 2016 denial of service connection for a lung disorder. The JMPR found that the Board erred in not returning the December 2015 medical opinion for clarification. In February 2017, the Board remanded the issue of entitlement to service connection for a lung disorder to implement the November 2016 JMPR and the issue of entitlement to an increased rating GERD for the issuance of a statement of the case. Subsequently, in February 2019, the Board denied an increased evaluation for GERD. The Veteran appealed the decision to the Court. In May 2020, the Court issued a Memorandum Decision that vacated and remanded the Board’s February 2019 denial of an increased evaluation for GERD. The Court found that the Board provided an inadequate statement of reasons or bases because it considered the ameliorative effects of the Veteran’s medications. The consideration of the ameliorative effects of medication was impermissible because Diagnostic Code 7346 does not contemplate the effects of medication. In December 2020, the Board remanded the issue of entitlement to an increased evaluation for GERD to obtain an adequate examination and an opinion regarding the severity of the Veteran’s GERD without the ameliorative effects of his medication. Regarding the Veteran’s claim of entitlement to service connection for a lung disorder, VA obtained an addendum opinion in May 2020 that explicitly addressed the relationship between the Veteran’s COPD and his in-service adenovirus vaccination. The Board finds that there has been substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to service connection for a lung disorder. Generally, service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). Service connection may be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b). The Veteran raises several alternative theories in support of his claim for service connection for a lung disorder. As his first theory, he alleges in his claim submissions that he was exposed to asbestos during service on board the U.S.S. Ozark and the U.S.S. Aggressive. In a January 2008 statement and in his hearing testimony, he asserted more specifically that he performed work entailed in the decommissioning of the U.S.S. Ozark in Charleston, South Carolina, and was thereby exposed directly to asbestos. The Veteran also alleges in his claim submissions and hearing testimony that he participated in a vaccine study while stationed at Great Lakes Training Center, which caused him to become ill and experience respiratory symptoms during service. In a July 2007 statement, the Veteran’s mother recalls that the Veteran wrote to her on several occasions with complaints of lung problems, dizzy spells, and fatigue. In a December 2008 statement, L.H. expresses that he served with the Veteran during boot camp and that he recalls the Veteran having lung and respiratory problems during that time. He notes further that the Veteran passed out on two occasions and was required frequently to report to sick call for treatment. Notably, the Veteran testified that he had a history of breathing problems prior to his enlistment into service. A review of the service treatment records, however, shows that the Veteran did not report any pre-service history of breathing problems during his April 1969 enlistment examination, and indeed, denied expressly having any pre-service history of respiratory symptoms, such as: dizziness or fainting spells; ear, nose, or throat trouble; chronic or frequent colds; sinusitis; hay fever; skin diseases; asthma; shortness of breath; pain or pressure in the chest; and/or, chronic cough. Also, there is no indication in the enlistment examination report itself that respiratory problems were reported by the Veteran or observed objectively by examining physicians. When no pre-existing disorder is noted upon entry into service, a veteran is presumed to have been in sound condition upon entry and the presumption of soundness arises. 38 U.S.C. § 1111. In Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004), the United States Court of Appeals for the Federal Circuit (Federal Circuit) summarized the effect of 38 U.S.C. § 1111 on claims for a service-connected disability and held that where the veteran is presumed to have been sound upon entry, the correct standard for rebutting the presumption of soundness under 38 U.S.C. § 1111 is a showing of clear and unmistakable evidence that (1) the veteran’s disability existed prior to service, and (2) that the preexisting disability was not aggravated during service. The Federal Circuit’s holding in Wagner has been codified under 38 C.F.R. § 3.304. Consequently, if a disability was not noted at the time of entry into service and VA fails to establish by clear and unmistakable evidence either that the disability existed prior to service or that it was not aggravated by service, the presumption of soundness will govern. As no breathing or respiratory problems were noted at the Veteran’s entry into service, the Veteran must be presumed as having been sound at the time of his enlistment. This presumption can be rebutted by only clear and unmistakable (i.e., undebatable) evidence to the contrary. The only evidence of record which even suggests that the Veteran had a pre-service history of breathing problems is the Veteran’s own testimony in that regard. That testimony is not substantiated by any pre-service treatment records, nor has the Veteran expressly identified any such pre-service treatment. In her statement, the Veteran’s mother does not note any childhood or other pre-service history of respiratory problems. Moreover, the Veteran’s statement is inconsistent with the total absence of any findings of any respiratory findings during his enlistment examination. Under the circumstances, the Board concludes that the evidence does not clearly and unmistakably show that the Veteran had breathing problems prior to his enlistment into service. As such, the Veteran is presumed to have been sound at the time of his enlistment and the Board will not endeavor in any consideration of whether there was any in-service aggravation of a pre-existing respiratory disorder. In relation to the Veteran’s theory of asbestos exposure during service, the service department records do show that the Veteran served on the U.S.S. Aggressive from March through November of 1970 and onboard the U.S.S. Ozark from August 1969 through February 1970. Although the Veteran has alleged direct exposure to asbestos while performing duties as part of the decommissioning of the U.S.S. Ozark, the Board observes that the U.S.S. Ozark was actually decommissioned in April 1974, well after the Veteran was separated from service. Allied Warships - USS Ozark (LSV 2), uboat.net, http://uboat.net/allies/warships/ship/11159.html (last visited August 7, 2015). Given this factual inconsistency, the Board finds that the Veteran’s assertion that he participated in decommissioning work and was thereby exposed to asbestos is not credible. Initially, there is no specific statutory or regulatory guidance with regard to claims for asbestos-related diseases. In 1988, VA issued a circular on asbestos-related diseases that provided guidelines for considering asbestos compensation claims. See Department of Veterans Benefits, Veterans’ Administration, DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The information and instructions contained in the DVB Circular have since been included in VA’s Adjudication Procedure Manual, M21-1, part VI, para. 7.21 (October 3, 1997). The relevant provisions of the Adjudication Manual were in effect when the Veteran filed his claim, but have since been rescinded, but included, essentially unchanged, in the Manual Rewrite, M21-MR, Part IV.ii.2.C.9 (Dec. 13, 2005) and Part IV.ii.1.H.29.a (Sept. 29, 2006). Also, an opinion by VA’s Office of General Counsel discussed the development of asbestos claims. See VAOPGCPREC 4-00. The Adjudication Manual and Manual Rewrite provide that VA must determine whether military records demonstrate evidence of asbestos exposure in service and whether there is pre-service and/or post-service evidence of occupational or other asbestos exposure. Thereafter, VA must make a determination as to the relationship between asbestos exposure and the claimed diseases, keeping in mind the latency and exposure information pertinent to the veteran. See also VAOPGCPREC 4-2000 (April 13, 2000); Ashford v. Brown, 10 Vet. App. 120, 123-24 (1997) (while holding that the veteran’s claim had been properly developed and adjudicated, the Court indicated that the Board should have specifically referenced the DVB Circular and discussed the Agency of Original Jurisdiction’s (AOJ’s) compliance with the Circular’s claim-development procedures). The pertinent parts of the Manual guidelines on service connection in asbestos-related cases are not substantive rules. Again, the Board admonishes that there is no presumption that a veteran was exposed to asbestos in service. See Dyment v. West, 13 Vet. App. 141 (1999), aff’d, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGCPREC 4-2000. Subject to the foregoing, the Board recognizes that some asbestos materials were previously used in the construction of United States naval vessels. Nonetheless, despite the Veteran’s documented naval service, the Board is not satisfied that the evidence of record, which includes the Veteran’s service records, show that the Veteran was exposed to asbestos during service. The Adjudication Manual and Manual Rewrite instruct that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. The Manual and Manual Rewrite also acknowledge that high exposure to asbestos and a high prevalence of disease have been noted in insulation and shipyard workers. Also noted is that the latent period varies from 10 to 45 or more years between first exposure and development of disease. Also, of significance is that the exposure to asbestos may be brief (as little as a month or two) or indirect (bystander disease). Mindful of the foregoing, and as alluded to above, the service department records do not indicate that the Veteran ever worked with or was physically exposed to the ships’ insulation. Similarly, there is no indication in the service records that he was ever tasked with participating in any way with the removal and replacement of asbestos materials, or, that he spent significant time in the presence of such materials while on docks or shipyards. Indeed, the Veteran makes no such allegations, but only alleges generally that he was exposed to asbestos by virtue of his service on board various naval vessels. However, as the Board has already noted, the laws and regulations do not provide for a presumption of asbestos exposure, even for veterans with documented service on board naval vessels. Overall, the Board finds that the evidence does not show that the Veteran was exposed to asbestos during his active duty service. Accordingly, the Board will also not consider whether the Veteran’s claimed respiratory disorder arose from purported asbestos exposure during service. To the extent that the Veteran alleges that his claimed respiratory disorder is attributable to vaccinations received during service, the service department records in the claims file do include vaccination certificates showing the Veteran received vaccinations for yellow fever, smallpox, and cholera while stationed at Great Lakes, Illinois. Other vaccination records document the Veteran was vaccinated for triple thyroid, tetanus, diphtheria, influenza, and polio from April through June of 1969. Subject to all of the above, the Board turns to the relevant evidence in the claims file. As discussed above, no respiratory abnormalities were reported or noted during the Veteran’s enlistment examination. Service treatment records dated in August 1969 show the Veteran was treated after he fainted and reported at that time that he had been previously diagnosed with emphysema and had a history of shortness of breath. Still, a physical examination and X-rays of the chest and lungs were normal. In December 1969, the Veteran was evaluated and treated for complaints of recurring episodes of dizziness, rapid breathing, blurred vision, and syncope that had reportedly been ongoing over the past two years. A neurologic examination performed at that time was normal and no specific diagnosis was rendered. An electroencephalograph performed in January 1970 to study reported hyperventilation was also normal. Notably, no respiratory abnormalities were noted during the Veteran’s October 1970 military separation examination. Post-service treatment records show that the Veteran received VA treatment in December 2000 for reported trouble breathing that had been ongoing for the past three or four years. The Veteran elaborated that he experienced shortness of breath after walking distances of 300 feet and symptoms of fatigue and choking while attempting to swallow. At that time, treating medical staff diagnosed dysphagia and suspected possible COPD. Pulmonary function tests were performed in April 2001 and June 2003. In March 2004, the Veteran was diagnosed with COPD. VA treatment records dated March 2004, February 2006, and April 2007 reflect that the Veteran had an ongoing history of smoking approximately one pack of cigarettes per week. Subsequent VA and private treatment records do not indicate ongoing and regular treatment for the Veteran’s COPD and associated respiratory complaints, although the active problem lists continue to identify COPD and tobacco dependence. In July 2014, the Veteran was afforded a VA examination to determine the nature and etiology of his reported respiratory problems. At that time, the Veteran reported that he was having ongoing and recurrent shortness of breath after exertion and pressing chest pains. On a review of the claims file, the examiner noted the medical history outlined above. An examination of the Veteran was apparently normal. X-rays of the Veteran’s chest revealed no evidence of an acute cardiopulmonary process. Pulmonary function tests also revealed no evidence of a pulmonary obstruction. Based upon the noted medical history, the examiner confirmed the previous COPD diagnoses but opined that the Veteran’s COPD is less likely as not related to his active duty service. As rationale, the examiner noted that the service treatment records do not support assertions made by the Veteran during in-service treatment in August 1969 that he had been diagnosed previously with emphysema. Indeed, the examiner observed pulmonary function during service was apparently within normal limits. Moreover, the examiner noted emphysema was highly unlikely given the Veteran’s young age at the time and the medical community’s understanding that emphysema most commonly results from long term exposure to smoking and chemical exposure. Overall, the examiner stated the medical literature suggests that emphysema most commonly develops in the range of age 40 to 60 after years of the aforementioned kinds of exposure. With regard to the Veteran, the examiner noted that the Veteran was diagnosed initially with COPD in 2004, 35 years after the Veteran’s active duty service. In conjunction with the same, the examiner noted that the Veteran has a smoking history, which is often a substantial factor in causing COPD. Given the totality of the foregoing factors, the examiner concluded that the Veteran’s COPD is less likely related to his active duty service. In August 2015, the Board remanded this issue again, primarily so that a medical opinion could be obtained as to whether a relationship exists between the Veteran’s COPD and his in-service vaccinations. Pursuant to the Board’s instructions, the Veteran was afforded a new VA examination in November 2015, which was conducted by the same examiner who performed the previous July 2014 examination. The corresponding examination report does not reflect any new findings, and indeed, the examiner repeats the findings and conclusions expressed in her earlier July 2014 report. In regard to the existence of a relationship between the Veteran’s COPD and his in-service vaccinations, the examiner observed that there is no in-service evidence that the vaccinations received by the Veteran during service caused any respiratory conditions during service. Moreover, the examiner emphasized medical research does not provide any evidence of a known link between vaccines and respiratory problems occurring either acutely or over time. Hence, the examiner concluded there is no causal connection between the Veteran’s respiratory condition and his in-service vaccinations. In February 2017, the Board remanded the issue of entitlement to service connection for a lung disorder to obtain a medical opinion that explicitly addressed long term health effects of live type 4 adenovirus vaccinations and the pertinent medical literature. In February 2018, the Veteran’s attorney submitted an Adenovirus Vaccination Program Questions and Answers report prepared by The Army Surgeon General. In May 2020, VA obtained an addendum medical opinion regarding the etiology of the Veteran’s COPD. The VA examiner opined that the Veteran’s claimed condition was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. She conceded that the Veteran was given live type adenovirus vaccinations during his active service. 90 percent of participants that receive that type of vaccination have evidence of induced infections. Adenovirus Type 4 and Type 7 Vaccine is used for active immunization to prevent febrile acute respiratory disease and is approved for military populations aged 17 through 50. The most common side effects of the vaccine include headache, stuffy or runny nose, sore throat, cough, nausea, diarrhea, pain in the extremities, and fever. The VA examiner explained that the Veteran had no diagnosis of any chronic symptoms or diagnosis related to his vaccinations. His symptoms were acute. The Veteran was diagnosed with COPD and atelectasis with a risk factor of long-term tobacco use. Tobacco use is the leading cause for the development of COPD. She emphasized that there is no evidence that live adenovirus vaccination leads to COPD 36 years after it is administered. The VA examiner concluded that the Veteran’s lung disorder is less likely than not incurred in or caused by active service, including his in-service vaccinations. The evidence in this case shows that the Veteran has had COPD since 2004; however, the evidence does not show that the COPD is related in any way to his active duty service, to include claimed in-service asbestos exposure or secondary to vaccinations received during service. The Board reiterates that the service treatment records note episodic complaints of shortness of breath with other associated symptoms. Nonetheless, diagnostic studies performed during service did not reveal any cardiopulmonary or respiratory abnormalities. Indeed, a medical examination performed at the time of the Veteran’s separation also revealed no such abnormalities. Hence, the evidence does not support a finding that the Veteran’s COPD began during his active duty service. Similarly, the evidence does not show that the Veteran had asbestos exposure during service. Even if such exposure was shown in the record, the Board notes that repeated radiological studies of the chest and lungs revealed no evidence of asbestosis or other asbestos-related damage or illness. In relation to the Veteran’s assertion that there is an etiological relationship between his COPD and vaccinations received during service, the Board also sees no merit in those contentions. Although the service treatment records do show that the Veteran received various vaccinations during service, there is no evidence in the record that the Veteran’s COPD is related in any way to those in-service vaccinations. In that regard, the Board emphasizes again that there is no indication in the service treatment records that the Veteran had cardiopulmonary or respiratory problems during service that were attributable to his vaccinations. Moreover, there is no objective finding or opinion noted anywhere in the post-service treatment records and VA examinations that support such a theory. Indeed, the May 2020 VA opinion thoroughly explains that there is no evidence of a relationship between COPD and live type adenovirus vaccinations. The medical opinions of record attribute the Veteran’s COPD to his long-term tobacco use. With respect to the history of tobacco use, service connection may not be granted on the basis of tobacco use, even if such tobacco use began in service. See 38 U.S.C. § 1103. Although the Board is aware of the Veteran’s assertions of a relationship between his COPD and his active duty service, to include in-service asbestos exposure and his in-service vaccinations, the Board does not assign significant probative weight to those assertions. In addressing lay evidence and determining what, if any, probative value may be assigned to it, the Board must consider elements of both competency (“a legal concept determining whether testimony may be heard and considered”) and credibility (“a factual determination going to the probative value of the evidence to be made after the evidence has been admitted”). See Layno v. Brown, 6 Vet. App. 465, 469 (1994). As a general matter, a layperson is not capable of opining on matters requiring medical knowledge. See 38 C.F.R. § 3.159(a)(2). In certain circumstances, however, lay evidence may be sufficient to establish a medical diagnosis or nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). In that regard, lay evidence has been found to be competent with regard to a disease with “unique and readily identifiable features” that is “capable of lay observation.” See Barr v. Nicholson, 21 Vet. App. 303, 308 -09 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370, 374 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (flat feet). Here, the Veteran would be competent to provide probative statements as to the onset and duration of symptoms associated with COPD. In the absence of any medical training or experience, however, the Veteran is not competent to render an opinion as to the complex medical question of whether his COPD, which was first diagnosed 34 years after his separation from service, is attributable in any way to his active duty service, to include in-service vaccinations and asbestos exposure. The question of the existence of such a relationship is complicated not only by the time that passed between the Veteran’s separation from service and his initial diagnosis, but also by other factors including the Veteran’s smoking history. Accordingly, the question as to the cause of the Veteran’s COPD is a medical question best addressed by a medical professional. In the absence of any medical training or experience, the Veteran is not competent to render an opinion as to the complex question of the cause of his cerebrovascular accident. For this reason, the Board does not assign any probative weight to the Veteran’s assertions as to the cause of his COPD. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007). In contrast, the findings, conclusions, and rationale provided by the May 2020 VA examiner are consistent with the facts shown in the record. Moreover, the examiner’s rationale is based on a comprehensive understanding of the Veteran’s medical history, objective findings on examination, and the medical community’s knowledge concerning the causes of COPD. Overall, the preponderance of the evidence is against the Veteran’s claim for service connection for COPD. Accordingly, the claim must be denied. In reaching this determination, the Board again acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine, however, is inapplicable in this case because the preponderance of the evidence is against the Veteran’s claim. See Gilbert, 1 Vet. App. at 55; 38 U.S.C. § 5107(b). REASONS FOR REMAND 1. Entitlement to an evaluation greater than 10 percent for GERD is remanded. The Veteran underwent his most recent VA GERD examination in April 2017. In December 2020, the Board remanded the issue of entitlement to an increased evaluation for GERD to afford the Veteran a contemporaneous VA examination and to obtain an opinion regarding the severity of the Veteran’s GERD without consideration of the ameliorative effects of medication. On remand, the AOJ obtained an opinion based on a review of the available records rather than a contemporaneous VA examination. The Board finds that there has not been substantial compliance with the December 2020 remand because the Veteran was not afforded a VA examination. Therefore, a remand is required to afford the Veteran a contemporaneous VA examination and to obtain an adequate opinion. The matter is REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected GERD. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. Current Findings: Attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and functional impairments due to GERD alone without considering the ameliorative effects of his medications and discuss the effect of the Veteran’s disability on any occupational functioning and activities of daily living. If the examiner finds that it is not possible to address the severity and frequency of GERD symptoms without consideration of ameliorative effects of medication, 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). Retrospective Findings: Following a review of the record, the clinician should provide retrospective findings for the below identified past VA examinations without considering the ameliorative effects of his medications. In doing so, consider past and current medical history, clinical findings, treatment records and the Veteran’s lay reports. (a.) Provide an addendum retrospective opinion to supplement the October 2010 VA examination that indicates the GERD symptoms, severity, and duration at that time, without considering the ameliorative effects of his medications. (b.) Provide an addendum retrospective opinion to supplement the July 2014 VA examination that indicates the GERD symptoms, severity, and duration at that time, without considering the ameliorative effects of his medications. (c.) Provide an addendum retrospective opinion to supplement the January 2015 VA examination that indicates the GERD symptoms, severity, and duration at that time, without considering the ameliorative effects of his medications. If it is not possible to provide an opinion, retrospective or otherwise, without resort to 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). 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.R. Watkins, 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.