Citation Nr: 21015560 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 20-11 613 DATE: March 17, 2021 ORDER An evaluation in excess of 30 percent for chronic sinusitis is denied. Effective date earlier than July 10, 2017 for the grant of service connection for left thigh impairment is denied. Effective date earlier than July 10, 2017 for the grant of service connection for right thigh impairment is denied. Effective date earlier than July 10, 2017 for the grant of service connection for left thigh limitation of extension is denied. Effective date earlier than July 10, 2017 for the grant of service connection for right thigh limitation of extension is denied. Special monthly compensation (SMC) based on based on the need for aid and attendance is granted. Total rating based on individual unemployability due to service-connected disability (TDIU) is granted. REMANDED Initial compensable evaluation for left thigh impairment is remanded. Initial compensable evaluation for right thigh impairment is remanded. Initial compensable evaluation for left thigh limitation of extension is remanded. Initial compensable evaluation for right thigh limitation of extension is remanded. Evaluation in excess of 10 percent for right hip strain is remanded. Evaluation in excess of 10 percent for left hip strain is remanded. FINDINGS OF FACT 1. The Veteran has not undergone surgery for chronic sinusitis. 2. VA received the Veteran’s intent to file a claim for compensation on July 10, 2017; on July 9, 2018, the Veteran submitted VA Form 21-526EZ, seeking service connection for left and right hip pain; the record does not show any claim pending prior to that date. 3. The Veteran’s service-connected disabilities render him in need of the regular aid and attendance of another person. 4. The Veteran meets the schedular criteria for TDIU and his service-connected disabilities prevent him from engaging in substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 30 percent for chronic sinusitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.97, Diagnostic Code 6513. 2. The criteria for an effective date earlier than July 10, 2017, for the grant of service connection for left thigh impairment have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 3. The criteria for an effective date earlier than July 10, 2017 for the grant of service connection for right thigh impairment have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 4. The criteria for an effective date earlier than July 10, 2017 for the grant of service connection for left thigh limitation of extension have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 5. The criteria for an effective date earlier than July 10, 2017 for the grant of service connection for right thigh limitation of extension have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 6. The criteria for SMC based on the need for aid and attendance are met. 38 U.S.C. §§ 1114 (l), (s), 5107; 38 C.F.R. §§ 3.350, 3.351, 3.352. 7. The criteria for TDIU are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 2013 to March 2014. The claim for a TDIU is part of the claims for increased ratings. Rice v. Shinseki, 22 Vet. App. 447 (2009). As a result, the TDIU claim is properly before the Board. The Board finds that it may proceed with adjudication even though some evidence was associated with the Veteran's eFolder after the Agency of Original Jurisdiction (AOJ) last adjudicated the issues on appeal (other than entitlement to TDIU) in the February 2020 statement of the case. The evidence was either submitted by the Veteran and 38 U.S.C. § 7105(e)(1) applies, or are VA CAPRI records received from VA which are not pertinent to the claims decided in this decision. 1. Evaluation in excess of 30 percent for chronic sinusitis. In general, ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In a claim for increase in a previously established rating, the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the evidence contains factual findings that demonstrate distinct time periods when the service connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, stage ratings are to be considered. Hart v. Mansfield, 21 Vet. App. 505 (2007). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. The Veteran generally contends that his sinusitis warrants a higher evaluation. The Veteran's sinusitis is evaluated under Diagnostic Code 6513 for sinusitis, chronic, maxillary, and the General Rating Formula for Sinusitis. A 50 percent evaluation is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. The Board finds that the preponderance of the evidence is against a rating in excess of 30 percent for chronic sinusitis. A September 2018 VA Sinusitis, Rhinitis and Other Conditions of the Nose, Throat, Larynx and Pharynx Disability Benefits Questionnaire (DBQ) provides that the Veteran had not had sinus surgery. VA treatment records do not show that the Veteran has undergone sinus surgery. The Board acknowledges that the Veteran believes that his sinusitis is more severe than the assigned 30 percent disability rating reflects. However, an increased evaluation for sinusitis requires in part that the Veteran have undergone surgery, which he has not. See the General Rating Formula for Sinusitis. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107. 2. Effective date earlier than July 10, 2017, for the grant of service connection for left thigh impairment. 3. Effective date earlier than July 10, 2017 for the grant of service connection for right thigh impairment. 4. Effective date earlier than July 10, 2017 for the grant of service connection for left thigh limitation of extension. 5. Effective date earlier than July 10, 2017 for the grant of service connection for right thigh limitation extension. The Veteran generally seeks earlier effective dates for the awards of service connection for left thigh impairment, right thigh impairment, left thigh limitation of extension and right thigh limitation of extension. If a claim for disability compensation is received within one year after separation from service, the effective date of entitlement is the day following separation or the date entitlement arose. 38 C.F.R. § 3.400(b)(2). Otherwise, the effective date of an award based on an original claim or a claim reopened after final adjudication shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Effective March 24, 2015, the law no longer allows for informal claims, but the pertinent regulation allows a claimant to submit an intent to file a claim, and VA may recognize the receipt date of the intent to file a claim as the date of claim so long as VA receives the successfully completed claim form within a year. 38 C.F.R. § 3.155(b) (“Upon receipt of the intent to file a claim, VA will furnish the claimant with the appropriate application form prescribed by the Secretary. If VA receives a complete application form... [for the] benefit sought within 1 year of receipt of the intent VA will consider the complete claim filed as of the date the intent to file a claim was received.”). The Board finds that the preponderance of the evidence is effective dates earlier than July 10, 2017 for the grants of service connection. VA received the Veteran’s intent to file a claim for compensation on July 10, 2017. On July 9, 2018, the Veteran submitted VA Form 21-526EZ seeking service connection for left hip pain and right hip pain. The October 2018 rating decision on appeal that granted service connection for these disabilities assigned effective dates of July 10, 2017, the date of receipt of the Veteran’s intent to file a claim. There is no evidence of any pending claim for compensation for these disabilities prior to the intent to file received on July 10, 2017. The Veteran did submit an intent to file a claim for compensation in January 2016. However, he failed to submit a successfully completed claim form within one year. 38 C.F.R. § 3.155(b). The claims for earlier effective dates for the grant of service connection for left thigh impairment, right thigh impairment, left thigh limitation of extension and right thigh limitation of extension are denied. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claims. 38 U.S.C. § 5107. 6. SMC based on the need for aid and attendance. SMC at the aid and attendance rate is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes with visual acuity of 5/200 or less, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which, by reason of the particular disability, cannot be done without aid; inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. “Bedridden” will be a proper basis for the determination, and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions that the claimant is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the claimant is so helpless as to need regular aid and attendance, not that there be a constant need. 38 C.F.R. § 3.352(a). The Veteran is service-connected for migraines, thoracolumbar strain, chronic sinusitis, left hip strain, right hip strain, tinnitus, irritable bowel syndrome, hemorrhoids, left thigh limitation of extension, right thigh limitation of extension, left thigh impairment and right thigh impairment. The Veteran has not argued, and the evidence does not otherwise establish, that he is blind, suffered the loss of use of a hand or foot due to service-connected disability or is bedridden. His claim, therefore, turns on whether he requires aid and attendance due solely to his service-connected disabilities. The report of an April 8, 2020 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance relates that the Veteran did not need assistance in bathing and tending to other hygiene needs. The examiner noted that she could not advise or determine, or did not assess, the Veteran for several other areas. The report of an April 21, 2020 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance relates that the Veteran needed assistance in bathing and tending to other hygiene needs. His caregiver provided assistance with bathing, toileting and dressing. The Veteran required medication management. His caregiver managed medications, set up medi-sets and ordered refills/renewals. The Veteran had overall upper extremity weakness leading to inability of performing ADLs at full capacity with exertion. He had his caregiver on standby assistance and did utilize her for bowel assistance, i.e., suppositories. The Veteran’s irritable bowel syndrome led to some fecal leakage/incontinence and the caregiver assisted him with hygiene/cleaning with bowel movements and the administration of hemorrhoid medications. The caregiver provided standby assistance for ambulation due to the Veteran's unsteady gait. The Board recognizes that the foregoing VA examination reports are inconsistent. In this case, the Board finds that the April 21, 2020 VA examination report is entitled to more weight. It is based on a more thorough and extensive assessment of the Veteran and provides many details in support of its conclusions. In a May 2020 affidavit, the Veteran's girlfriend, C.C.V., stated that the Veteran needed regular aid and assistance with activities of daily living as a result of his service-connected disabilities. She currently assisted him with activities of daily living due to his service-connected disabilities. She had taken classes at the VA Medical Center and became a certified caregiver in 2016. Because she had to be at home in order to assist the Veteran, she was only able to work part-time from home. On a typical day, she woke up early to prepare the Veteran’s food and medications. She started all therapy recommended for the Veteran’s migraines and was in charge of administering his medications. She assisted the Veteran with daily hygiene on a regular basis. She always went with him to the bathroom when he showered. When he had especially bad days due to migraines and spasms, she had to help him shower and clean him after he used the restroom since he was unable to reach or bend. She also had to help him put on his clothes, shoes and socks during those bad days, which occurred 3 to 4 times a week. She also assisted him put on certain clothes, such as button-up shirts, which he was unable to put on by himself. She said that she did 95 percent of the chores and the Veteran’s pain increased if he tried to do any chores. She preferred not to leave him alone (when left alone in the past, he had forgotten to open the garage door before backing up, due to headache medication which made him disoriented and confused, and had left the stove on several times and almost burnt the house down). If she had to leave him alone, she made sure his sister or their neighbor came by to keep him company. She preferred not to leave the Veteran alone with their four-year old daughter because he could fall or suffer from an incapacitating episode at any time. In a May 2020 affidavit, the Veteran stated that because of his service-connected disabilities, he required regular aid and attendance with activities of daily living from C.C.V. When his migraines and spasms from irritable bowel syndrome and hemorrhoids were severe, she had to help him by putting on his socks, shoes and clothes. Approximately 3 times a week, she helped him in the shower because he was unable to move correctly or bend at all. Two to five times a week she helped him clean himself after using the restroom due to his severe spasms and inability to reach. He had handles on the shower and toilet but still fell due to balance problems from his hip and thigh disabilities. C.C.V. assisted him with his healthcare needs by doing all of his therapy and exercises recommended by his doctor and making sure he took his medication on time. A July 2020 private Employability Evaluation from a vocational consultant relates that she reviewed the Veteran’s entire claims file and spoke with the Veteran and C.C.V. The consultant set forth the Veteran’s current symptoms and identified his service-connected disabilities and their evaluations. She stated that in rendering her opinion, she did not consider any non-service-connected disabilities. She reviewed VA Compensation and Pension examination reports and the affidavits in detail. She stated that it was her professional opinion that the Veteran had at least as likely as not been in need of regular aid and attendance to perform his activities of daily living from at least July 2017 to the present. The April 21, 2020 VA examination report, July 2020 private Employability Evaluation and the affidavits show that the Veteran’s service-connected disabilities render him unable to dress or undress himself, keep himself ordinarily clean and presentable, or attend to the wants of nature. The Veteran's service-connected disabilities also result in physical and mental incapacity that require care or assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). As a result, the Veteran is entitled to SMC based on the need for the regular aid and attendance of another person. 7. TDIU. The Veteran contends that his service-connected disabilities render him unemployable and thus entitled to TDIU. On a July 2018 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran stated that he became too disabled to work in March 2014 and last worked fulltime in July 2018 working from home in insurance. He had completed 2 years of college and had Long Shore Certification Training for PORT authorities. On a May 2020 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran stated that he became too disabled to work in November 2014 and last worked fulltime in April 2018. From December 2017 to July 2018, he worked in customer service for an insurance company and lost 3-4 days a week due to illness. In 2016 and 2017, he worked as an Uber driver and lost time from work 4 times a week. He had completed high school and in 2014 took three general education classes at University of Phoenix. In a May 2020 affidavit, the Veteran stated that his service-connected disabilities affected his ability to work. He tried to go to college, but his disabilities prevented him from concentrating and his twice weekly medical appointments prevented him from continuing his education or working. He described in detail how his random migraines and irritable bowel syndrome spasms affected his ability to work as an Uber driver. His constant thigh and hip pain affected his ability to sit for long periods of time. He tried working in customer service from home for an insurance company, but medication for his migraines made him confused and his tinnitus prevented him from effectively communicating with his clients. Since he stopped working for the insurance company, his service-connected disabilities had gotten worse and he had been unable to return to work. He described problems caused by hip and thigh pain. He had to use the restroom three to four times a day, which took 30 minutes to an hour each time and resulted in pain, slowed his heartbeat and left him fatigued. His tinnitus continued to affect his ability to concentrate on tasks. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16 (a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident will be considered as one disability. Id. Veterans unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). 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 the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran is service-connected for migraines; thoracolumbar strain; chronic sinusitis, strain, left hip; strain, right hip; tinnitus; irritable bowel syndrome; hemorrhoids; left thigh, limitation of extension; right thigh, limitation of extension; left thigh, impairment; and right thigh, impairment. His combined evaluation has been 90 percent, with two disabilities rated at least 40 percent disabling, for the entire appeal period and thus he meets the schedular criteria for TDIU. 38 C.F.R. § 4.16(a). A September 2018 VA Hip and Thigh Conditions DBQ relates that the Veteran's bilateral hip disability would restrict him from working positions that require squatting, crawling, ladder climbing, stair climbing, prolonged walking, standing and running. The bilateral hip disabilities should not preclude sedentary type work as long as the Veteran was allowed to take breaks to get up and stretch as needed. A July 2020 private Employability Evaluation relates that the examiner reviewed the Veteran's entire claims file and spoke with the Veteran and C.C.V. She set forth the Veteran’s current symptoms, reviewed his educational background and identified his service-connected disabilities and their evaluations. She stated that in rendering her opinion, she did not consider any non-service-connected disabilities. She reviewed the Veteran's work history and his reports as to how his service-connected disabilities affected his job performance as an Uber driver and an insurance Customer Service Representative. She also analyzed these positions based on several vocational resources she described as standard. The examiner concluded that based on a review of the medical information, file documentation and interviews with the Veteran and C.C.V., his service-connected disabilities have at least as likely as not precluded him from substantially gainful employment in any capacity, including sedentary employment, from at least July 2017 to the present. It was more likely than not that the Veteran would be unable to perform any occupation that would require at least occasional sitting, standing and walking due to his service-connected disabilities. Further, his service-connected disabilities and their symptoms significantly impacted his ability to concentrate and focus on work tasks. The consultant explained in great detail and with specificity how numerous VA Compensation and Pension examination reports and affidavits from the Veteran and C.C.V. supported this conclusion. She also stated that her opinion was based on her education (Master’s Degree in Industrial and Organization Psychology) and experience as a vocational expert for over 20 years. The Board finds that the opinion in the Employability Evaluation is probative and supports the Veteran’s claim. It is based on a review of all relevant evidence and telephone interviews with the Veteran and C.C.V., and provides an explanation that contains clear and detailed conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Board also finds that the opinion in the Employability Evaluation outweighs the September 2018 VA opinion that the Veteran's bilateral hip disabilities should not preclude sedentary type work. The opinion in the Employability Evaluation provides a much more detailed, thorough and extensive assessment of the Veteran and the effects of all of his service-connected disabilities on his employability. The Board finds that the foregoing evidence supports the award of a TDIU. Considering the severity of the Veteran's service-connected disabilities and related functional impairment, his education and additional special training, job history and the Employability Evaluation, entitlement to TDIU is granted. REASONS FOR REMAND 1. Initial compensable evaluation for left thigh impairment is remanded. 2. Initial compensable evaluation for right thigh impairment is remanded. 3. Initial compensable evaluation for left thigh limitation of extension is remanded. 4. Initial compensable evaluation for right thigh limitation of extension is remanded. 5. Evaluation in excess of 10 percent for right hip strain is remanded. 6. Evaluation in excess of 10 percent for left hip strain is remanded. These issues are remanded to conduct an adequate VA examination. A September 2018 VA Hip and Thigh Conditions DBQ relates that the Veteran had “burning” hip pain bilaterally. The DBQ specifies that the Veteran reported functional loss or functional impairment (regardless of repetitive use) that the Veteran described as burning pain in his hips and inability to carry his daughter or go running. The DBQ provides range of motion findings for each hip that show bilateral limitation of motion, and observes that right hip and left hip pain were noted on examination and caused functional loss. However, the DBQ fails to identify the portions of the ranges of motion that were affected by pain, or the degrees of the noted limitations of motion that were due to pain. These absences prevent the Board from making a meaningfully informed determination as to the severity of the functional loss that indicated by the VA examiner's findings and comments. The Board finds that clearer and more adequate descriptions of the functional losses due to pain are necessary for proper appellate review. Moreover, the Board observes that the Court of Appeals for Veterans Claims has observed that for an examination to comply with 38 C.F.R. § 4.40, the examiner must express an opinion on whether pain could significantly limit functional ability, and the examiner's determination should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use. Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The September 2018 DBQ also relates that passive range of motion testing “Cannot be performed or is not medically appropriate.” However, the examiner did not explain why the testing could not be performed or was not medically appropriate. On remand, if it is determined that any testing cannot be performed or is not medically appropriate, the examiner must provide a full explanation. In light of the foregoing, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his left thigh impairment, right thigh impairment, left thigh limitation of extension, right thigh limitation of extension, left hip strain and right hip strain. Since these claims are being remanded, the eFolder should be updated to include all outstanding VA treatment records. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s eFolder copies of all outstanding VA treatment records. 2. Then, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the current severity of his service-connected left thigh impairment, right thigh impairment, left thigh limitation of extension, right thigh limitation of extension, left hip strain and right hip strain. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If it is determined that any testing cannot be performed or is not medically appropriate, the examiner must provide a full explanation. A complete rationale must be provided for any opinion expressed. M. Mills Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.