Citation Nr: 21021227 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 18-18 907 DATE: April 12, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. FINDING OF FACT The most probative evidence of record weighs against a conclusion that bilateral hearing loss was incurred in service; sensorineural hearing loss was not demonstrated within one year of service. CONCLUSION OF LAW The criteria for entitlement to service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.385, 4.87 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from to January 1965 to December 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. The Veteran appeared before the undersigned Veterans Law Judge and provided sworn testimony at an October 2019 Board videoconference hearing. A copy of the transcript is associated with the claims file. The matter was remanded in January 2020 for further development to include the obtainment of treatment records and a VA medical examination to address service connection. The appeal is returned to the Board for further consideration. This case has been advanced on the docket pursuant to 38 U.S.C. § 7107(b) and 38 C.F.R. § 20.902(c). 1. Entitlement to service connection for bilateral hearing loss The Veteran contends that exposure to gunfire and explosion noise in basic training and flight line noise as an aircraft mechanic, without the benefit of hearing protection, is responsible for his hearing loss. See February 2020 VA Form 21-4138, Statement in Support of Claim and March 2021 VFW Appellate Brief. Duty to Notify and Assist VA must notify the claimant of any information, including any medical or lay evidence, not previously provided to VA, that is necessary to substantiate the claim. See 38 U.S.C. § 5103 (2012); 38 C.F.R. § 3.159 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). VA has satisfied its duties to inform the Veteran in this case. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 21.1032(a).   The duty to notify was satisfied by Rating Decision Narrative dated January 2017 and Notification Letter dated February 2017. See also March 2018 Statement of the Case, October 2020 Subsequent Development Letter, and November 2020 Supplemental Statement of the Case. VA’s duty to assist functions to aid a claimant in obtaining evidence necessary to substantiate a claim, but VA is not required to provide assistance to a claimant when there is no reasonable possibility that assistance would aid in substantiating the claim. See 38 U.S.C. § 5103A (2012). As for VA’s assistance to the Veteran, the entire record was available to the January 2017 and September 2020 examiners, hearing loss and tinnitus examinations were performed, and the testing was sufficient to adequately address all potential rating criteria. See 38 U.S.C. § 7104(d)(1); 38 C.F.R. §§ 3.385, 4.87. Any defects in the January 2017 VA examination were cured by the September 2020 examination. See January 2017 and September 2020 VA Hearing Loss and Tinnitus examination reports. The Board finds that VA has done everything reasonably possible under 38 C.F.R. § 21.1032(a) to assist the Veteran. The Veteran has not identified any available, outstanding records that are relevant to the claim decided herein, nor is there an indication that any outstanding evidence, relevant to the claim, needs to be obtained. See October 2020 Subsequent Development Letter. All pertinent due process requirements have been met. See 38 C.F.R. § 3.103 (2017). Further development and further assistance by VA are not warranted. The RO’s efforts have substantially complied with the instructions contained in the January 2020 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). An additional remand for further development of this claim would serve no useful purpose. Accordingly, the Board finds that no prejudice to the Veteran will result from the adjudication of his claim in this Board decision.   Service Connection In order to prove service connection, there must be competent and credible evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus or link between the current disability and the in-service disease or injury. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Lay evidence cannot be determined to be not credible merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). However, the lack of contemporaneous medical evidence can be considered and weighed against a Veteran’s lay statements. Id. Further, a negative inference may be drawn from the absence of complaints or treatment for an extended period. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff’d sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). The Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). Although the Veteran is competent to provide a diagnosis of an observable condition such as a headache, varicose veins, or tinnitus, the Veteran is not competent to provide evidence as to more complex medical questions, such as the etiology of diseases of the ear. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007).   After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104 (a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). For the purpose of applying the laws administered by the VA, impaired hearing will be considered a disability when: (1) the auditory threshold for any of the frequencies of 500, 1000, 2000, 3000, and 4000 Hertz is 40 decibels or greater; or (2) the auditory thresholds for at least three of those frequencies are 26 decibels or greater; or (3) speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385 (2017). Prior to January 1967, all VA audiograms were conducted under an old standard. From January 1967 through December 1970, VA audiograms were conducted under either the old standard or the current standard. The Board considers these results under both standards. After December 1970, all VA audiograms were conducted under the current standard. Because the statute regulating VA hearing loss determinations is written under the current standard, the auditory threshold readings of examinations conducted under the old standard are adjusted to align with the current standard. When considering the auditory threshold levels under the old standard, the decibel reading is adjusted as follows: (Hz) 500 1000 2000 3000 4000 Threshold Increase 15 10 10 10 5 Hearing loss is a chronic disease that is found to occur in service if it manifested to a compensable degree in active service or, for hearing loss, within one year of separation. 38 C.F.R. §§ 3.307, 3.309. When a chronic disease is shown in service, “subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.” 38 C.F.R. § 3.303(b). Factual Background In January 1965, the Veteran was provided with a physical examination upon his entry into active duty service. His clinical evaluation was “Normal” for “Ears – General” and “Drums,” and his self-evaluation reflected “No…Ear, Nose or Throat Trouble.” See December 1965 Reports of Medical Examination and Medical History. At the time of his entry into active duty, the Veteran was administered an audiogram. The test results are as follows: (Hz) 250 500 1000 2000 3000 4000 6000 8000 Right X 0 0 0 X 15 X X Left X 0 0 0 X 15 X X In September 1966, the Veteran received a physical examination before separating from active duty service. His clinical evaluation was “Normal” for “Ears – general…Drums,” and his self-evaluation reflected “Yes…Ear, Nose or Throat Trouble,” described more fully as “sinusitis – seasonal.” See September 1966 Reports of Medical Examination and Medical History. At the time of his separation from active duty, the Veteran was given an audiogram. The results are as follows: (Hz) 250 500 1000 2000 3000 4000 6000 8000 Right 0 10 0 10 10 15 0 X Left X 10 0 5 10 15 0 X At the time of his separation from active duty and transition into reserve service, the Veteran indicated that his “Present Civilian Occupation” was “Construction worker.” Regarding his health for reserve service, the Veteran made the following affirmative statement certifying his physical condition: “To the best of my knowledge and belief [sic] I have no medical condition or physical defect that would prevent my performance of active military service.” See May 1967 Army Reserve Status and Address Verification, USA AC Form 171. The Veteran provided lay evidence of a time in-service when he experienced hearing-related symptoms: “I remember going to the hospital in basic (training) with 103-degree temp(erature) and ears ringing. Got out next day after drinking a quart of water every 2-3 hours.” See December 2019 Veteran Correspondence. Service treatment records for the Veteran document a February 1965 report of “URI (Upper Respiratory Tract Infection).” The Veteran had two temperature readings taken, 101.6 and 101.4. There is no documentation of a hospital admission or an overnight stay. See February 1965 Health Record – Chronological Record of Medical Care. The Veteran was provided with an in-person VA examination in January 2017. The examiner reviewed the claims file and considered the statements of the Veteran, including the fact that the Veteran had trouble hearing in crowded restaurants. Noise exposure in the military was reported by the Veteran as M-16 gunfire, grenade explosions, and “intermittent” exposure to aircraft engines as an aviation mechanic. The Veteran reported post-military noise exposure from riding motorcycles, playing guitar, and the use of power tools and lawn care equipment,   all without the benefit of hearing protection. Puretone threshold testing produced the following results: Right Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz Avg Hz (B – E)** 50 65 65 70 70 70 70 68 Left Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz Avg Hz (B – E)** 45 65 70 65 70 70 75 68 * The Puretone threshold at 500 Hz is not used in determining the evaluation but is used in determining whether or not a ratable hearing loss exists. ** The average of B, C, D, and E. Speech Discrimination Scores (Maryland CNC word list) were as follows: Right Ear 76 percent Left Ear 76 percent There were no frequencies that could not be tested, and the test results were valid for rating purposes. The average Puretone threshold for the right ear, columns B – E, was 68 decibels (dB). The average Puretone threshold for the left ear, columns B – E, was 68 dB. The Maryland CNC word list speech discrimination scores, appropriate for this Veteran, were 76 percent for each ear. Immittance (Tympanometry) results were not available due to the inability of the examiner to obtain or maintain a seal. See January 2017 VA Hearing Loss and Tinnitus examination report. The examiner diagnosed the Veteran with sensorineural hearing loss (in the frequency range of 500 – 4000 Hz) and sensorineural hearing loss (in the frequency range of 6000 Hz or higher frequencies) under 38 C.F.R. § 3.385 but concluded that the Veteran’s bilateral hearing loss was not related to service. See January 2017 VA Hearing Loss and Tinnitus examination report. The January 2017 examiner acknowledged that the Veteran’s MOS as a single engine aircraft mechanic had a “high probability of hazardous noise exposure.” The examiner noted that service treatment records indicated hearing “within normal limits” from entry to separation, with only “normal measurement variability” demonstrated within the recorded data. Further, the examiner found no evidence of “acoustic trauma” in the Veteran’s service records. See January 2017 VA Hearing Loss and Tinnitus examination report. The January 2020 Board remand determined that the January 2017 VA medical examination was inadequate for failure to address the Veteran’s in-service MOS as an aircraft mechanic or statement regarding continuity of symptomatology. See January 2020 BVA Decision. At the January 2017 VA medical examination, the Veteran stated, “If we go to a restaurant to eat or to any place where there is a crowd, I can’t hear my kids when they are talking to me, and I can’t hear when the restaurant staff call the order numbers out to come get the food.” See January 2017 VA Hearing Loss and Tinnitus examination report. The Veteran provided an October 2018 Costco Hearing Aid Center report when he purchased hearing aids. See October 2018 Costco Hearing Aid Center report. VA medical center records do not contain treatment for ear-related diseases. See November 2020 Supplemental Statement of the Case. An October 2020 request to provide the “names and addresses of where you have received private medical care for your hearing loss” was made of the Veteran. See October 2020 Subsequent Development Letter. To date, no response has been received to this request. An additional VA medical examination was provided to the Veteran in September 2020. The claims file was reviewed, the Veteran was examined in-person, and his statements were considered by the examiner, including difficulty understanding in noise, increased volumes, and asking people to repeat. Noise exposure in the military was reported as weapons, grenades, airplanes, and helicopters. The Veteran reported no post-military noise exposure. Puretone threshold testing produced the following results: Right Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz Avg Hz (B – E)** 60 70 75 75 70 75 65 72.50 Left Ear A B C D E F G 500 Hz* 1000 Hz 2000 Hz 3000 Hz 4000 Hz 6000 Hz 8000 Hz Avg Hz (B – E)** 50 70 75 70 75 70 70 72.50 * The Puretone threshold at 500 Hz is not used in determining the evaluation but is used in determining whether or not a ratable hearing loss exists. ** The average of B, C, D, and E. Speech Discrimination Scores (Maryland CNC word list) were as follows: Right Ear 74 percent Left Ear 60 percent There were no frequencies that could not be tested, and the test results were valid for rating purposes. The average Puretone threshold for the right ear, columns B – E, was 72.50 dB. The average Puretone threshold for the left ear, columns B – E, was 72.50 dB. The Maryland CNC word list speech discrimination scores, appropriate for this Veteran, were 74 percent for the right ear and 60 percent for the left ear. Immittance (Tympanometry) results were “Normal” for acoustic immittance in each ear and “Abnormal” for ipsilateral and contralateral acoustic reflexes in each ear. See September 2020 VA Hearing Loss and Tinnitus examination report. The examiner diagnosed the Veteran with sensorineural hearing loss (in the frequency range of 500 – 4000 Hz) and sensorineural hearing loss (in the frequency range of 6000 Hz or higher frequencies) under 38 C.F.R. § 3.385 but concluded that the Veteran’s bilateral hearing loss was not related to service. See September 2020 VA Hearing Loss and Tinnitus examination report. In formulating her opinion, the September 2020 VA examiner reasoned: “(According to the) American College Occupational and Environmental Medicine, hearing loss due to noise exposure does not progress in excess of what would be expected from the addition of age-related threshold shifts once the exposure is discontinued. In other words, once an individual is removed from a hazardous noise environment, the threat is also removed, and he or she is no longer in danger of acquiring hearing loss from that noise source. No (audiogram) thresholds shifting was noted during service. Given the shape of the audiogram and the lack of threshold shifting during service, it is less likely as not that the hearing loss is related to military service. It is at least as likely as not that the hearing loss is related to presbycusis.” See September 2020 VA Hearing Loss and Tinnitus examination report. The September 2020 VA examiner completed an addendum to her September opinion in November 2020: “[T]he Veteran testified (at the Board hearing) that he lost hearing temporarily while in-service…While it is possible for temporary hearing loss to occur during service after noise exposure, no record of this is found…Hearing at entrance compared to hearing loss at exit did not show any significant threshold shifting. There is no other hearing testing in medical records within 1 year of separation to show any degree of hearing loss due to military noise…Typical noise induced hearing loss shows a notched hearing loss, worse in the high frequencies and showing some recovery in thresholds around 6-8 kHz. This is not the case with this claimant.” See November 2020 VA Hearing Loss and Tinnitus VA examination report addendum. Analysis Contemporaneous medical evidence has greater probative value than the Veteran’s reports of history. See Curry v. Brown, 7 Vet. App. 59 (1994). The contemporaneous medical evidence of record demonstrates: 1) no evidence of loss of hearing in February 1965; 2) no hearing loss in the September 1966 separation examination; 3) No complaints of hearing loss by the Veteran in September 1966; and 4) No complaints of hearing loss by the Veteran in May 1967. Further, the Veteran not only denied hearing loss in his separation self-evaluation, he declared himself to be physically fit, without “medical condition or physical defect,” after he separated from active duty service and before he completed reserve service. See Veteran Service Treatment Records and May 1967 Army Reserve Status and Address Verification, USA AC Form 171. As noted above, hearing loss is a chronic disease, and when a chronic disease is shown in service, “subsequent manifestations of the same chronic disease at any later date, however remote, are service connected.” 38 C.F.R. § 3.303(b) (2017). While the Veteran reported “ears were ringing in basic training (See February 2017 VA Form 21-0958, Notice of Disagreement),” there is no documentation of hearing loss, either in February 1965 sick call treatment, for the remainder of service, or within the applicable presumptive period after service. See Veteran Service Treatment Records. Continuity of symptomatology is required under 38 C.F.R. § 3.303(b), “where the condition noted during service (or in the presumptive period) is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned.” Symptoms of hearing loss were first documented by the Veteran in his claim for service connection in October 2016, nearly 50 years after service. See October 2016 VA Form 21-526EZ, Application for Disability Compensation. Statements by the Veteran: 1) “I can’t hear my kids when they are talking to me, and I can’t hear when the restaurant staff call the order numbers out to come get the food (See January 2017 VA Hearing Loss and Tinnitus examination report;” 2) “My wife complained of this…probably got worse with age but cannot deny loss in military (See VA Form 21-0958, Notice of Disagreement);” and 3) “I always thought I had selective hearing (See December 2019 Veteran Correspondence)” are not a sufficient “showing of continuity after discharge” required to support the claim. See 38 C.F.R. § 3.303(b). In addition, the Board recognizes the distinction between “hazardous noise exposure,” associated with certain military occupations, including aviation-related fields, and actual impaired hearing for VA disability purposes. While the Veteran is conceded to have a “high probability” of exposure to hazardous noise as a former single engine aircraft mechanic, without the benefit of presumptive service connection, he still has the burden of establishing a nexus between his current diagnosis of hearing loss and his military service. See 38 C.F.R. § 3.303(a). Assuming arguendo that the Board interpreted the Veteran’s statement, “Always thought I had selective hearing (See December 2019 Veteran Correspondence)” to indicate that his hearing loss has continued since service, an actual diagnosis of sensorineural hearing loss requires objective, medical testing to determine whether it is severe enough to be considered a disability for VA compensation purposes. See Jandreau v. Nicholson, 492 F.3d 1372, 1376, 1377 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The first documented audiogram to diagnose hearing loss in the Veteran came at his January 2017 VA medical examination. See January 2017 VA Hearing Loss and Tinnitus examination report. Moreover, almost 50 years passed between the Veteran’s December 1966 active duty service and his October 2016 complaint of hearing loss. The Board notes that construction-related occupational specialties in the Army are assigned a “highly probable” hazardous noise exposure rating. See VA Fast Letter 10-35, Modifying the Development Process in Claims for Hearing Loss and / or Tinnitus. By analogy, civilian employment by the Veteran as a “Construction worker” would likely include similar “hazardous noise exposure.” See May 1967 Army Reserve Status and Address Verification, USA AC Form 171. In addition, the Veteran reported the use of motorcycles, guitars, power tools, and lawn equipment, with the admitted lack of use of hearing protection. See January 2017 VA Hearing Loss and Tinnitus examination report. Notwithstanding the fact that the January 1965 audiometry examination did not record the Puretone threshold for 3000 Hz or that VA examinations discussed herein used the terms “normal, within normal limits,” and “no significant shift” to describe Puretone threshold results as they relate to hearing loss for VA disability purposes, the Board finds that the examinations nevertheless are adequate for VA rating purposes. The rationale for the medical opinions is based on the Veteran’s prior medical history, including prior VA examinations, Stefl v. Nicholson, 21 Vet. App. 120 (2007), “describes the disability…in sufficient detail so that the Board’s evaluation of the claimed disability will be a fully informed one,” Ardison v. Brown, 6 Vet. App. 405 (1994), and “sufficiently inform(ed) the Board of a medical expert’s judgment on a medical question and the essential rationale for that opinion,” Monzingo v. Shinseki, 26 Vet. App. 97 (2012). Most importantly, the opinions did not rely exclusively on the fact that the Veteran’s hearing was within normal limits at his separation from service. See Hensley v. Brown, 5 Vet. App. 155 (1993). Any failure to record Puretone threshold at the 3000 Hz frequency during the January 1965 audiometry examination is harmless error and not prejudicial to the Veteran. Conclusion In summary, a review of the Veteran’s service treatment records do not contain any complaints, treatment, or diagnosis of hearing loss or trauma, and the Veteran’s clinical and self-evaluations at separation do not reflect any findings or complaints for hearing conditions. The absence of in-service evidence of hearing loss is not fatal to a claim for service connection. See Ledford v. Derwinski, 3 Vet. App. 87 (1992). However, the Veteran’s VA medical center records do not show any treatment for a hearing condition. Aside from an October 2018 Costco hearing aid examination, no evidence of private treatment was either identified or provided by the Veteran. The Veteran first reported hearing loss in October 2016, and the first medical documentation of hearing loss is January 2017. The greater weight of the evidence is against a finding of element three for service connection, a nexus between his current diagnosis and an in-service event or injury. The Veteran alleges injury to his hearing while in-service, and testified that he believed he has had long term hearing loss since service, based in part on the complaints of his spouse about his hearing over the years. The Board notes that the Veteran is competent to report the onset and continuity of hearing loss symptoms. However, the question of whether the Veteran’s hearing loss is related to his active service falls outside the realm of common knowledge of a lay person. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Opining on the etiology of hearing loss requires the expertise of a medical professional, particularly when there has been a significant passage of time without any documentation of symptomatology. While the Veteran can report symptoms that he experiences, he does not have the necessary training to offer medical opinions. There is no evidence in the record of a hearing condition or of hearing trauma, which was adequately addressed in the VA examinations. The January 2017 and September 2020 VA opinions are the most probative evidence of record on the question of diagnosis and nexus to service. The opinions were based on an extensive review of all of the evidence, including statements from the Veteran, the January 1965 and September 1966 audiometric tests, the Veteran’s treatment records, the Veteran’s in-service MOS, and his civilian activities, were supported by a detailed rationale, provided data to support any conclusions, and provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The January 2017 and September 2020 VA examiner opinions are consistent with one another and the evidence of record, including the Veteran’s lay statement that his hearing “got worse with age.” Factors for assessing the probative value of a medical opinion are the examiner’s access to the claims file and the thoroughness and detail of the opinion. See Hernandez-Toyens v. West, 11 Vet. App. 379, 382 (1998); see also Prejean v. West, 13 Vet. App. 444, 448-9 (2000). The guiding factors in evaluating the probative value of a medical opinion are whether the opinion was based on sufficient facts or data, whether the opinion was the product of reliable principles and methods, and whether the medical professional applied the principles and methods reliably to the facts of the case. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). These standards are met in the VA examinations. The VA examiner opinions provide compelling evidence against the Veteran’s claim for service connection. The Veteran contends that his claimed disability exists and is related to his active service. This opinion is of no probative value, because he lacks the medical expertise needed to diagnose a hearing condition or to attribute it to active military service. There is no competent, credible evidence to refute the VA examiner opinions. The weight of the probative evidence of record is against a finding that the Veteran’s hearing condition is causally or etiologically related to any disease, injury, or incident, in service. Consequently, service connection is not warranted. Finally, a clear preponderance of the evidence of record indicates the Veteran does not meet the criteria under 38 C.F.R. § 4.87, Diagnostic Code 6100, for entitlement to service connection for a hearing condition. Therefore, his claim must be denied. In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. The rule does not apply when the Board finds that a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2018); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.