Citation Nr: 21016145 Decision Date: 03/19/21 Archive Date: 03/19/21 DOCKET NO. 13-34 545 DATE: March 19, 2021 ORDER Entitlement to an evaluation of 20 percent, but no higher, for a right knee disability from February 4, 2010 to May 11, 2017, based on limitation of extension, is granted. Entitlement to an evaluation in excess of 50 percent for a right knee disability based on limitation of extension since May 11, 2017 is denied. A separate 10 percent evaluation, but no higher, for instability of the right knee, for the period beginning on May 11, 2017, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to November 29, 2010 is remanded. FINDINGS OF FACT 1. From February 4, 2010 to May 11, 2017, the Veteran’s right knee had degenerative arthritis with objective pain and crepitus, and with limitation of motion of extension to 15 degrees. 2. Since May 11, 2017, the Veteran’s right knee had pain with loss of motion on extension to 45 degrees or more. 3. Beginning on May 11, 2017, the Veteran’s right knee was shown to have no more than mild instability, manifested by reports of increased giving way, but not objective evidence of ligamental instability. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 20 percent, but no higher, for painful limitation of motion of a right knee disability from February 4, 2010 to May 11, 2017 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5256 - 5263. 2. The criteria for an evaluation in excess of 50 percent for painful limitation of motion of a right knee disability since May 11, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.45, 4.59, 4.71a, Diagnostic Codes 5010, 5256 - 5263. 3. The criteria for a 10 percent evaluation, but no higher, for instability of the right knee for the period beginning May 11, 2017, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.45, 4.59, 4.71a, Diagnostic Code 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active service with the United States Army from November 1959 to February 1962. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a June 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2017, the Board remanded the claims for further development. After a Supplemental Statement of the Case (SSOC), the claims are back before the Board. As to the remand, the Veteran was afforded a new VA examination and the opportunity to submit information from his own medical providers. Therefore, the Board finds that the foregoing reflects substantial compliance with the September 2017 remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Thus, the Board will adjudicate the claim currently on appeal. Increased Rating Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes (DCs). 38 C.F.R. § 4.27. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several DCs, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); see also 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. In rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). VA’s determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). In assigning a higher disability rating, 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. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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. 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. The diagnostic codes relevant to rating knee disabilities are summarized below. Under DC 5260 (same before and after the February 7, 2021 regulatory change), a zero percent evaluation is warranted where flexion of the leg is limited to 60 degrees, a 10 percent evaluation is warranted where flexion is limited to 45 degrees, a 20 percent evaluation is warranted where flexion is limited to 30 degrees, a 30 percent evaluation is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260. Under DC 5261 (same before and after the February 7, 2021 regulatory change) a zero percent evaluation is warranted where extension of the leg is limited to five degrees, a 10 percent evaluation is warranted where extension is limited to 10 degrees, a 20 percent evaluation is warranted where extension is limited to 15 degrees, a 30 percent evaluation is warranted where extension is limited to 20 degrees, a 40 percent evaluation is warranted where extension is limited to 30 degrees, a 50 percent evaluation is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261. Under DC 5257 (prior to the regulatory change on February 7, 2021), a 10 percent rating is assigned when there is slight recurrent subluxation or lateral instability; a 20 percent rating is assigned when there is moderate recurrent subluxation, or lateral instability; and a 30 percent rating is assigned when there is severe recurrent subluxation, or lateral instability. Under DC 5257 (as of February 7, 2021, under the amended regulatory criteria) instability of the knee is broken into two categories, (1) recurrent subluxation or instability, and (2) patellar instability. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). For (1), recurrent subluxation or instability due to sprains or ligament tears causing persistent instability, a 10 percent rating is warranted when there is no prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted when there is a medical provider who prescribes either a brace or an assistive device for ambulation and there is persistent instability from ligament tears or sprains. A 30 percent rating is warranted when there is a prescription from a medical provider for both an assistive device and bracing for ambulation. Id. For (2), patellar instability is defined as a diagnosed condition involving the patellofemoral complex with recurrent instability. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). The patellofemoral complex for Code 5257 is defined as consisting of the quadriceps tendon, the patella, and the patellar tendon. A note clarifies that a surgical procedure that does not involve repair to at least one of the patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for this Code. Id. For patellar instability, a 10 percent rating is warranted when there is a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without a surgical repair) that does not require a prescription from a medical provider for a brace cane or walker. A 20 percent rating is warranted when there is 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 30 percent rating is warranted when there is 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 walker. Id. Under DC 5258 (same before and after the February 7, 2021 regulatory change), a 20 percent rating is warranted for dislocated semilunar cartilage with frequent episodes of “locking,” pain, and effusion into the knee joint. 38 C.F.R. § 4.71a, DC 5258. Under DC 5259 (same before and after the February 7, 2021 regulatory change), a 10 percent rating is warranted for symptomatic residuals of removal of semilunar cartilage. 38 C.F.R. § 4.71a, DC 5259. Normal range of motion in the knee is 140 degrees of flexion and zero degrees of extension. 38 C.F.R. § 4.71, Plate II. Multiple diagnostic codes are potentially applicable to evaluation of the knees. Simultaneous compensation under several Codes is permissible so long as differing symptomatology is being compensated by each Code. For example, limitations of flexion (Code 5260) and extension (Code 5261) may both be rated, but a rating for arthritis (Code 5003) cannot be combined with either, as it refers to general limitations of motion and would include both flexion and extension. Similarly, instability (Code 5257) and meniscal disabilities (Codes 5258 and 5259) can be rated with limits of motion, and with each other, so long as differing symptoms and manifestations are being compensated. VAOGCPREC 9-2004; VAOPGCPREC 23-97; VAOPGCPREC 9-98. All of these potentially applicable Codes have been considered. Entitlement to an evaluation of 20 percent for a right knee disability based on limitation of extension, from February 4, 2010 to May 11, 2017, is granted. In considering the evidence of records and the law and regulation as set forth above, the Board concludes that the Veteran was entitled to a rating of 20 percent of the right knee, but no higher, under DC 5261, from February 4, 2010 to May 11, 2017. In February 2010, the Veteran filed a claim for an increased evaluation of his service-connected right knee disability. He contended that he is entitled to an increased evaluation for his service-connected right knee disability as his knee condition had worsened over time. The Veteran’s right knee was first rated at 10 percent disabling pursuant to DC 5010 in February 1962. A few months after the Veteran filed a claim for an increased rating, in May 2010, the Veteran had a VA examination. He reported his right knee was progressively worsening. See VA Examination received May 2010. The Veteran had end stage degenerative joint disease of the tricompartmental area of the knee. He was unable to stand for more than a few minutes and he used assistive devices for walking, including a cane and low impact shoes. Id. On examination, the Veteran had antalgic gait with poor propulsion. The Veteran’s right knee had tenderness, pain, crepitation, and grinding. The Veteran had a meniscus abnormality, but no locking noted. However, he did not have instability reported in the right knee joint. The examiner reported that the Veteran’s right knee range of active motion was 5 degrees to 100 degrees. On repetitive motion, the Veteran’s right knee flexion was 5 degrees to 90 degrees. Id. The Veteran did not have effusion or dislocations of the right knee. The examiner did not include whether the Veteran had a further reduction in range of motion on flare-ups. Id. Then in October 2010, one of the Veteran’s private medical providers stated that he had mild right knee effusion with limited range of motion. See Medical Treatment Record-Non-Government Facility received November 2010. The Veteran had 15 degrees extension and 117 degrees flexion. Id. The Veteran had bony enlargement of the right knee join with a flexion contracture. He was unable to go up on an eight-inch step without assistance and he could not balance on one leg. His provider stated that he had post traumatic or post medial meniscotomy degenerative changes of the right knee. Id. When extension of the knee is limited to 15 degrees, as it was in October 2010, the right knee is more properly rated at 20 percent under limitation of extension, DC 5261. While the range of motion during the May 2010, VA examination did not show that the Veteran was as limited as private treatment in October 2010 found, there is no reason to find that this favorable evidence is not competent, and credible. Especially because the May 2010 examination did not consider the Veteran’s right knee range of motion during flare-ups and as the overall records supported that the Veteran’s ability to extend the knee was worsening. From February 4, 2010 to May 11, 2017, a rating of higher than 20 percent is not supported. In order to warrant a higher disability rating of 30 percent for limitation of extension there would need to be evidence of limitation of extension to 20 degrees. The Board reviewed the evidence extensively; however, the evidence does not show right knee extension limited to more than 15 degrees, or flexion limited to less than 60 degrees prior to May 11, 2017. As to the other Diagnostic Codes available and applicable to the knee, the evidence does not show ankylosis of the knee. The evidence of record has not shown recurrent subluxation or lateral instability of the knee throughout this portion of the appeal. The evidence does not show dislocated semilunar cartilage with frequent episodes of locking, pain and effusion. There is no evidence of tibia impairment, fibula impairment, genu recurvatum, or shin splints. In the present case, the Veteran’s pain has been considered in the application of the current 20 percent disability rating under Diagnostic Code 5261. As such, any assignment of a separate disability rating based purely on painful motion would result in “pyramiding.” Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In sum, the Veteran’s limitation of extension rises to the level of a 20 percent disability rating, but no higher, from February 4, 2010 to May 11, 2017. As the preponderance of the evidence weighs in favor of a 20 percent disability rating and weighs against an evaluation higher than a 20 percent disability rating, the rule regarding benefit of the doubt is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an evaluation in excess of 50 percent since May 11, 2017, is denied. In considering the evidence of records and the law and regulations as set forth above, the Board concludes that the Veteran is not entitled to a rating under Diagnostic Code 5261 in excess of 50 percent since May 11, 2017. In May 2017, the Veteran’s provider filled out a Knee and Lower Leg Conditions Disability Benefits Questionnaire (DBQ). See VA Examination received May 2017. The Veteran had constant pain of the right knee with increased giving way of the right knee. He was at a severe risk of falling and he was unable to stand for more than a minute or two. The Veteran was bound to a wheelchair and he had difficulty with transfers and travel. Id. The provider did not provide any range of motion for the knee, indicating “not able to perform.” In clarification, the provider explained that the Veteran had been placed in a nursing home due to a significant decline. The provider had treated the Veteran for some time, but the Veteran’s immobility had made it impossible for him to come in for an examination, when the doctor completed the form. See Medical Treatment Record-Non-Government Facility received May 2017. Then in November 2017, the Veteran’s provider at his nursing home completed a Knee and Lower Leg Conditions DBQ. See Disability Benefits Questionnaire (DBQ)-Veteran provided received November 2017. The provider stated that the Veteran had degenerative joint disease with contractures at the knees with persistent pain. The Veteran was non-ambulatory with mechanical lift transfer. Id. The Veteran always used a wheelchair. The provider stated that the Veteran required longterm, 24-hour care since 2015. Id. Then in November 2020, the Veteran was able to attend a VA examination in person. The examination considered the Veteran’s various diagnoses to the knees. He had a cartilage restoration surgery in 1960 to the right knee as well as arthritis. He had a contracture of the right knee since 2010, right knee tricompartmental degenerative joint disease, a right knee spur, and right knee chondrocalcinosis. See C&P Exam received November 2020. The Veteran reported that he had not walked for five years and that he was either in a wheelchair or in bed. He could not straighten his right knee and reported recurrent falls. The Veteran reported that he had flares when it was cold or when he had to take a step, every night. Id. In November 2020, the VA examiner reported that the Veteran had 80 degrees to 40 degrees extension with active motion of the right knee. See C&P Exam received November 2020. On repetitive use over time, the Veteran had 70 degrees to 40 degrees extension, and with flares, the Veteran’s right knee had 70 degrees to 45 degrees extension. Id. The Veteran’s right knee strength was a one out of five, which describes palpable or visible muscle contraction, but no joint movement. The Veteran was reported to have a right sided meniscal condition with frequent episodes of pain but no joint locking. The Veteran was not reported to have joint subluxation or instability, but he did require the use of a wheelchair. Id. Since May 11, 2017, a rating of higher than 50 percent is not supported. While the Veteran is clearly very limited, the Veteran is rated at the highest percentage available for knee extension since May 11, 2017. The Board also noted that in the November 2020 VA examination, the Veteran’s right knee was limited to 45 degrees of extension due to flare-ups, which is consistent with a rating of 50 percent. The Veteran has been rated at 50 percent for limited extension of the knee since May 11, 2017 based on the VA examination in November 2020 and considering the Veteran’s treatment providers DBQs from May 2017 and November 2017. Below the instability of the knee has been separately addressed for this period. As to the other Diagnostic Codes available and applicable to the knee, the evidence does not show ankylosis of the knee. The evidence does not show dislocated semilunar cartilage with frequent episodes of locking, pain and effusion. While the Veteran reported locking and pain in the joint on 2017 DBQ, these symptoms are accounted for by the 50 percent rating for limitation of extension of the knee. Moreover, clinical examination has not shown evidence of these symptoms. The additionally granted rating for instability of the knee discussed below also accounts for feelings of giving way of the knee or more generally, a feeling of instability of the knee with weight-bearing. Therefore, a separate rating under DC 5258 or 5259 is not appropriate, as these reported subjective symptoms are accounted for. There is no evidence of tibia impairment, fibula impairment, genu recurvatum or shin splints. In the present case, the Veteran’s pain has been considered in the application of the current 50 percent disability rating under DC 5261. As such, any assignment of a separate disability rating based purely on painful motion would result in “pyramiding.” Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In conclusion, looking at the record as a whole, the Veteran’s service-connected right knee disability was properly evaluated under DC 5261, at 50 percent since May 11, 2017. As a preponderance of the probative, credible evidence of record weighs against a finding of a rating in excess of 50 percent, at any time during the pendency of the appeal, for the Veteran’s right knee disability rated under DC 5261, the benefit of the doubt doctrine does not apply, and the appeal for a rating in excess of 50 percent must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. A separate 20 percent evaluation, but no higher, for instability of the right knee, for the period beginning on May 11, 2017, is granted. The Board finds that a separate rating of 10 percent, but no higher, for instability of the right knee is supported for the period beginning on May 11, 2017. In May 2017, the Veteran’s provider reported that the Veteran had constant pain of the right knee with increased giving way of the right knee. The treatment provider also noted knee instability. See VA Examination received May 2017. While, the Veteran reported increased knee giving away, the Veteran’s November 2020 VA examination noted that the Veteran had normal anterior instability testing, normal posterior instability testing, normal medial instability testing, and normal lateral instability testing. See C&P Exam received November 2020. The Board notes that medical evidence is not categorically more probative than lay evidence under Diagnostic Code 5257. See English v. Wilkie, 30 Vet. App. 347, 352-54 (2018). Thus, it is reasonable to grant the Veteran 10 percent for instability of the right knee, considering the overall severity of his symptoms. However, the Board finds that a higher rating is not called for because there is no objective evidence of more than mild recurrent subluxation or lateral instability during the period on appeal. Specifically, even when taking into consideration the May 2017 report, there is no actual indication of ligamental instability on clinical evaluation. While the Veteran required the use of a wheelchair, the Veteran was also limited by other conditions like severe peripheral vascular disease. See Disability Benefits Questionnaire received November 2017, Medical Treatment Record-Non-Government received November 2017. Thus, the use of assistive devices alone is not enough to support more than moderate knee instability where objective testing noted normal anterior instability testing, normal posterior instability testing, normal medial instability testing, and normal lateral instability testing. See C&P Exam received November 2020. Knee instability both before and after February 7, 2021 has been rated using the old DC 5257. The new criteria under DC 5257 for knee instability was considered from February 7, 2021. However, the old regulations are being applied because they are the most favorable to the Veteran. The new criteria under DC 5257 requires recurrent subluxation or instability due to sprains or ligament tears; or patellar instability, defined as a diagnosed condition involving the patellofemoral complex with recurrent instability. Since the new codes are more specific the Veteran qualifies for a higher rating under the old code. In conclusion, looking at the record as a whole, the Veteran’s service-connected right knee disability was properly evaluated under Diagnostic Code 5257, at 10 percent, since May 11, 2017, but no higher. REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to November 29, 2010 is remanded. Although further delay is regrettable, a remand is necessary for the following development. The Veteran was granted TDIU since November 29, 2010. The Veteran’s claim for an increased rating, which was also deemed to include a claim for TDIU was filed before his grant for TDIU, in February 2010. See VA 21-4138 received February 2010. The Veteran has requested the earliest effective date permitted under the law and regulations for TDIU. See Appellate Brief received February 2021. However, prior to November 29, 2010, the Veteran did not meet the basic eligibility for schedular TDIU under 38 C.F.R. § 4.16(a). When a Veteran does not meet the schedular provisions for TDIU, the extra-schedular provisions may be considered. The extra-schedular TDIU provisions make clear that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. However, the Board cannot make this determination on the first instance, and these claims must be remanded to the Regional Office (RO) for a referral. See 38 C.F.R. § 4.16(b), and see also Bowling v. Principi, 15 Vet. App. 1, 9-10 (2001) (holding that the Board could not award TDIU on an extra-schedular basis without first ensuring that the claim was referred to the appropriate first line authority for such consideration). Specifically, the extra-schedular TDIU provision requires that the RO submit all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the disabilities percentages for schedular TDIU to the VA’s Director of Compensation Service for extra-schedular consideration. See 38 C.F.R. § 4.16(b). The Veteran reported increased problems walking and maneuvering from the onset of his claims in February 2010. See VA 21-4138 received February 2010. The record also suggested that the Veteran was unemployed for some time. While some records suggested that the Veteran was unemployed due to liver disease, the records also suggested that the Veteran’s knee impairment was severe enough that it could have prevented him from working. See Correspondence received April 2010. Therefore, the Board is remanding the remaining matter on appeal for additional development, to include referral of the claim to VA’s Chief Benefits Director or the Director of VA’s Compensation Service for a determination as to the Veteran’s entitlement to an extra-schedular TDIU. The matters are REMANDED for the following action: 1. Refer the claim for extra-schedular TDIU to the Director of Compensation pursuant to 38 C.F.R. § 4.16(b). Please consider the Veteran’s service-connected right knee disability from February 4, 2010, to November 29, 2010. 2. If any benefit sought on appeal is not granted, the Veteran and his representative should be provided a Supplemental Statement of the Case (SSOC) and afforded the requisite opportunity to respond before the case is returned to the Board. R. Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Associate Counsel, C. Parnell 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.