Citation Nr: 21021394 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 14-36 465 DATE: April 12, 2021 ORDER A rating in excess of 10 percent for chronic thoracolumbar strain and lumbar retrolisthesis prior to August 23, 2020, is denied. A rating in excess of 20 percent for chronic thoracolumbar strain and lumbar retrolisthesis since August 23, 2020, is denied. A compensable rating for right knee patellofemoral pain syndrome (PFS) is denied. A rating in excess of 10 percent for limitation of flexion of the right knee, since August 23, 2020, is denied. A compensable rating for left knee PFS, prior to August 23, 2020, is denied. A rating in excess of 10 percent for left knee PFS, since August 23, 2020, is denied. A rating in excess of 10 percent for limitation of flexion of the left knee, since August 23, 2020, is denied. FINDINGS OF FACT 1. The Veteran had active duty from December 2004 to April 2013; he has been 100 percent disabled since April 2019. 2. Prior to August 23, 2020, the back disability was manifested by, at worst, forward flexion to 65 degrees, extension to 20 degrees, and bilateral flexion and bilateral rotation to 30 degrees; paralumbar muscle spasm without abnormal gait or abnormal spinal contour. There was no IVDS or signs or symptoms of radiculopathy. 3. Since August 23, 2020, the back disability has been manifested by, at worst, forward flexion to 55 degrees, extension to 10 degrees, and bilateral flexion and rotation each to 15 degrees without muscle spasm or guarding. There was IVDS with radiculopathy but not requiring periods of physician-prescribed bedrest. 4. Prior to August 23, 2020, the right and left knee disabilities were manifested by normal range of motion without instability, subluxation, or loss of strength. 5. Since August 23, 2020, the right knee disability has been manifested by, at worst, range of motion from 0 degrees extension to 110 degrees flexion with flare-ups causing stiffness and pain with pressure and without instability, subluxation, or loss of strength. 6. Since August 23, 2020, the left knee disability has been manifested by, at worst, range of motion from 0 degrees extension to 100 degrees flexion with flare-ups causing stiffness and pain with pressure, lateral instability 1+, and meniscal tear in the left knee with frequent episodes of locking and joint pain, but not dislocated cartilage or effusion. CONCLUSIONS OF LAW 1. Prior to August 23, 2020, the criteria for a rating in excess of 10 percent for chronic thoracolumbar strain and lumbar retrolisthesis were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes (DC) 5237, 5243 (2020). 2. Since August 23, 2020, the criteria for a rating in excess of 20 percent for chronic thoracolumbar strain and lumbar retrolisthesis were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5237, 5243 (2020); 85 Fed. Reg. 230 (Nov. 30, 2020). 3. The criteria for a compensable initial rating for right knee PFS were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5257 (2020); 85 Fed. Reg. 230 (Nov. 30, 2020). 4. Since August 23, 2020, the criteria for a rating in excess of 10 percent for right knee limitation of flexion have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5260 (2020); 85 Fed. Reg. 230 (Nov. 30, 2020). 5. Prior to August 23, 2020, the criteria for a compensable initial rating for left knee PFS were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5257 (2020). 6. Since August 23, 2020, the criteria for a rating in excess of 10 percent for left knee PFS were not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DCs 5259-5257 (2020); 85 Fed. Reg. 230 (Nov. 30, 2020). 7. Since August 23, 2020, the criteria for a rating in excess of 10 percent for left knee limitation of flexion have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, DC 5260 (2020); 85 Fed. Reg. 230 (Nov. 30, 2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come to the Board on appeal of an October 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal was previously before the Board in April 2020, at which time the issues of entitlement to increased ratings for the Veteran’s back and bilateral knee disabilities were remanded for further development. It now returns to the Board for further appellate review. Next, the Board has considered whether consideration of entitlement to a total disability rating due to individual unemployability (TDIU) is warranted. However, while the record reflects that the Veteran was at times unemployed, neither he nor the medical evidence suggested that the lack of employment was due to service-connected disabilities. Accordingly, TDIU is not for consideration. Turning to the applicable laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. While this appeal was pending, the rating criteria for musculoskeletal disabilities was amended effective February 7, 2021. See 85 Fed. Reg. 230 (Nov. 30, 2020). If the amended criteria are more favorable, the implementation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of the change. If the pre-amended criteria are more favorable, VA can apply the pre-amended criteria 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 appeals under the pre-amended criteria prior to February 7, 2021, and both the pre-amended and amended criteria since February 7, 2021. The criteria that is more favorable will be applied. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Chronic Thoracolumbar Strain and Lumbar Retrolisthesis Lumbosacral spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine (Spine Formula). 38 C.F.R. § 4.71a, DCs 5237-5243. Intervertebral disc syndrome (IVDS) is rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The amended regulations clarify that DC 5243 is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign DC 5242 for all other disc diagnoses. No other changes were made to the rating criteria for the spine. The Veteran’s lumbar spine disability has been rated as 10 percent prior to August 23, 2020, and as 20 percent thereafter under DC 5237. The Board will consider all relevant diagnostic codes. A rating in excess of 10 percent will be warranted when the objective medical evidence shows the following: • forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees (20% under DC 5237); • combined range of motion of the thoracolumbar spine not greater than 120 degrees (20% under DC 5237); • muscle spasms or guarding that is severe enough to result in an abnormal gait or abnormal spinal contour, such as scoliosis, reversed lordosis, or abnormal kyphosis (20% under DC 5237); • incapacitating episodes of IVDS having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months (20% under DC 5243); or • in the absence of limitation of motion, degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups with occasional incapacitating exacerbations (20% under DC 5003). A rating in excess of 20 percent will be warranted when the objective medical evidence shows the following: • forward flexion of the thoracolumbar spine to 30 degrees or less (40% under DC 5237); • favorable ankylosis of the entire thoracolumbar spine (40% under DC 5237); or • incapacitating episodes of IVDS having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months (40% under DC 5243). Prior to August 23, 2020 Turning to the evidence, in a February 2013 VA examination, the examiner diagnosed chronic thoracolumbar strain with lumbar retrolisthesis, and 20 percent loss of height of the T11 vertebrae. Flare-ups were documented as causing difficulty with prolonged standing, walking, lifting, and carrying. Initial range of motion was forward flexion to 65 degrees, extension to 20 degrees, and bilateral flexion and bilateral rotation to 30 degrees. Pain was observed at 65 degrees flexion and 20 degrees extension. There was no additional loss of function with repetition. There was pain on movement with less movement than normal. The examiner noted paralumbar muscle spasm but indicated that the spasm did not result in abnormal gait or spinal contour. Straight leg raise was negative, and there were no signs of radiculopathy noted. The examiner found no IVDS. In a July 2015 VA examination, the same diagnoses were recorded. The Veteran reported that he had flare-ups that prevented him from doing things with his children and from getting some jobs. Range of motion was forward flexion to 90 degrees and extension, bilateral flexion, and bilateral rotation to 30 degrees or greater, and there was no loss of function with repetition. The clinical examination revealed no spasm or guarding. There were no signs or symptoms of radiculopathy, and the Veteran denied use of assistive devices. The examiner indicated that there was no IVDS. A review of treatment notes does not reflect symptoms more severe than noted at VA examination. Accordingly, the medical evidence does not support a rating in excess of 10 percent prior to August 23, 2020. The 10 percent rating assigned prior to August 23, 2020, contemplated forward flexion to no less than 65 degrees and combined range of motion to greater than 120 degrees without muscle spasm or guarding that resulted in abnormal gait or spinal contour. Under DC 5237, a higher rating requires range of motion to no greater than 60 degrees forward flexion or, for all movements combined, to no greater than 120 degrees, or muscle spasm or guarding resulting in abnormal gait or spinal contour. As such manifestations were not present during this period, a rating in excess of 10 percent is not supported by the evidence. A rating in excess of 10 percent is also warranted for periods of physician-prescribed bedrest associated with IVDS; however, IVDS was not present during this period of the appeal. Thus, a higher rating is not warranted for manifestations of IVDS. The Board has considered whether separate ratings are warranted for other manifestations of the disability. Since August 23, 2020, separate ratings were assigned for radiculopathy symptoms in each lower extremity as described in Note 1, to the General Rating Formula. Prior to that date, the evidence did not show radiculopathy. Accordingly, the assignment of separate ratings for radiculopathy prior to August 23, 2020, was not warranted. Since August 23, 2020 An August 2020 VA examiner noted that the Veteran underwent a microdiscectomy in January 2020 with improvement in symptoms for three months; however, daily pain had worsened since with pain down bilateral legs. The Veteran described flare-ups as sharp, shooting pain down his legs. He further indicated that he could no longer walk without pain or lift much. Forward flexion was to 55 degrees, extension to 10 degrees, and bilateral flexion and rotation each to 15 degrees. Pain was noted with non-movement but no pain with range of motion testing was described. No additional loss of function was found after repetition. The examiner indicated that pain and lack of endurance resulted in additional loss of function with repeated use over time and with flare-ups. The examiner defined loss of function with repeated use over time in terms of range of motion of forward flexion to 50 degrees, extension to 5 degrees, and bilateral flexion and rotation each to 10 degrees. With flare-ups, range of motion as described as forward flexion to 45 degrees, extension to 5 degrees, and bilateral flexion and rotation each to 5 degrees. There was no guarding or muscle spasm found. Muscle strength testing was 5/5, and reflexes were 1+, hypoactive. Sensation was reduced along both lower extremities from thigh to foot. The straight leg test was positive, and the examiner diagnosed bilateral radiculopathy with severe intermittent pain, paresthesias/dysesthesias, and numbness. The examiner diagnosed IVDS but indicated that there had been no episodes of physician-prescribed bedrest. The examiner described functional impact on the Veteran’s ability to work was inability to sit/stand/walk and push/pull/lift. In addition, the examiner indicated that the Veteran would need to change positions frequently. The examiner found no objective evidence of pain on non-weightbearing and reported that passive range of motion testing could not be performed or was not medically appropriate. Treatment notes for this period do not reflect symptoms or loss of function of the spine that is more severe than found at the August 2020 VA examination. A rating in excess of 20 percent under DC 5237 requires forward flexion to 30 degrees or ankylosis, neither of which was present. The evidence reflected that the Veteran now has a diagnosis of IVDS; however, as no periods of bedrest had been prescribed, a rating in excess of 20 percent is not warranted under DC 5243. The Board has considered whether separate ratings are warranted for other manifestations of the disability. Since August 23, 2020, separate ratings were assigned for radiculopathy symptoms in both the right and left lower extremities as indicated by Note 1, to the General Rating Formula. Prior to that date, the evidence did not establish the presence of radiculopathy. Accordingly, the assignment of separate ratings for radiculopathy prior to August 23, 2020 were not warranted. Right and Left Knee Disabilities Throughout the appeal period, the right knee PFS was rated at 0 percent under DC 5257. Effective August 23, 2020, a separate 10 percent rating was assigned for limitation of flexion, pursuant to DC 5260. Prior to August 23, 2020, the left knee PFS was rated at 0 percent under DC 5257, and as 10 percent disabling from that date forward under DC 5259-5257. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after a hyphen. In this case, the hyphenated diagnostic code reflects the rating of a meniscal condition under the criteria for instability and subluxation. As with the right knee, a separate 10 percent rating was assigned for limitation of flexion of the left knee since August 23, 2020. The Board will consider all potentially relevant diagnostic codes. In addition, the Board must contemplate whether separate ratings are warranted for distinct manifestations of the right or left knee disabilities, to the extent allowable by law. Words such as “slight,” “moderate,” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Under the pre-amended regulations, higher and/or separate ratings are applicable when a knee disability has manifestations as follows: • ankylosis of the knee with a favorable angle in full extension or in slight flexion between 0 and 10 degrees (30% under DC 5256); • recurrent subluxation or lateral instability that is slight (10% under DC 5257), moderate (20% under DC 5257), or severe (30% under DC 5257); • dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint (20% under DC 5258); • flexion of the knee limited to 45 degrees (10% under DC 5260), 30 degrees (20% under DC 5260), or 15 degrees (30% under DC 5260); • extension of the knee limited to 10 degrees (10% under DC 5261), to 15 degrees (20% under DC 5261); (30% under DC 5261); extension of the knee limited to 30 degrees (40% under DC 5261); extension of the knee limited to 45 degrees (50% under DC 5261); • impairment of the tibia or fibula with a moderate knee disability (20% under DC 5262). Under the amended DC 5257, ratings are assigned for either recurrent subluxation or instability or patellar instability. For recurrent subluxation and instability, ratings are assigned as follows: • Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation (10%); • Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation (20%); • Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation (20%); • Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation (30%). For patellar instability, ratings are assigned as follows: • A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker (10%); • 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 (20%);A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker (30%). The Notes to the amended DC 5257 state: (1) For patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. (2) A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Under amended DC 5262, nonunion of the tibia and fibula, requiring a brace is rated at 40 percent. Malunion of the tibia and fibula is to be rated under DC 5256, 5257, 5260, or 5261, whichever results in the highest evaluation. In addition, rating criteria were added for medial tibial stress syndrome (MTSS), or shin splints, which provided: • Requiring treatment for no less than 12 consecutive months, and unresponsive to either shoe orthotics or other conservative treatment, one or both lower extremities (10%); • Requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, one lower extremity (20%); • Requiring treatment for no less than 12 consecutive months, and unresponsive to surgery and either shoe orthotics or other conservative treatment, both lower extremities (30%). Prior to August 23, 2020 Turning to the evidence, a February 2013 VA examiner diagnosed PFS of the right and left knees. Range of motion in each knee was from 0 degrees extension to flexion of 140 degrees or greater. There was no loss of function with repetition. Strength and stability testing were normal. The examiner found no subluxation on clinical examination and indicated that X-ray evidence also showed no signs of patellar subluxation. X-rays also revealed no degenerative or traumatic arthritis. There was no history of meniscal conditions or surgery, and the Veteran used no assistive devices. He reported that he had flare-ups that caused difficulty running. The examiner noted clinical effects of the disability of incoordination resulting in an inability to execute movements smoothly. A review of treatment notes does not reflect more severe manifestations in either knee that were more severe than found at the VA examination. Accordingly, a compensable rating was not warranted for either knee prior to August 23, 2020. In this regard, both knees exhibited normal range of motion without loss of strength, instability, or subluxation. In addition, X-rays did not establish arthritis in either knee, and the Veteran had no other meniscal conditions documented. While he reported some impairment running during flare-ups, and the examiner documented incoordination that inhibited smooth movement, such manifestations did not present as chronic impairment of function in either knee so as to warrant a compensable rating for either the right or left knee prior to August 23, 2020. Since August 23, 2020 An August 2020 VA examiner diagnosed PFS in both the right and left knees, as well as a meniscal tear with lateral instability on the left. The Veteran reported constant dull ache in the knees and grinding with cracking/stiffness and that he cannot stand for long as it feels like his knees are going to wear out. He described flare-ups causing severe stiffness and pain with pressure. Range of motion testing revealed 0 degrees extension to 120 degrees flexion on the right and 0 degrees extension to 110 degrees flexion on the left. The examiner noted an inability to squat. Repetitive testing did not result in any additional loss of function; the examiner indicated that pain with repeated use over time would result in range of motion from 0 to 115 degrees on the right and from 0 to 105 degrees on the left. The examiner found that pain with flare-ups would produce range of motion on the right from 0 to 110 degrees and on the left from 0 to 100 degrees. Regarding meniscal conditions, the examiner noted a meniscal tear in the left knee with frequent episodes of locking and joint pain and associated the meniscal tear with a change in gait due to the PFS. Dislocated cartilage was not found. Lateral instability at 1+ was found on the left. Anterior, posterior, and medially instability testing was normal bilaterally, and lateral instability was normal on the right. No surgical history was documented, and the Veteran did not use any assistive devices. A review of treatment notes does not reveal symptoms or manifestations of either the right or left knee disabilities more severe than those shown at VA examination. Accordingly, the evidence for the period since August 23, 2020 does not support ratings in excess of those already assigned. To reiterate, for this period, each knee has been rated at 10 percent for limitation of flexion, and the left knee has also been assigned a 10 percent rating for a meniscal condition. The 10 percent rating under DC 5260 contemplates painful movement that resulted in less than full flexion of the knee. For the left knee, the 10 percent under DCs 5259-5257 was assigned for the meniscal tear associated with the PFS. A rating in excess of 10 percent for limitation of flexion requires flexion to no more than 30 degrees, which is not present bilaterally. In addition, extension was normal and there was no ankylosis to higher or separate ratings for such manifestations in either knee. The evidence also does not reflect impairment of the tibia and fibula to support higher or separate ratings under DC 5262. Regarding the rating for PFS, the right knee reflected normal ligaments without instability or subluxation. There were no meniscal conditions, effusion, or locking on the right. Therefore, a compensable rating for the right knee PFS under either the previous or amended rating criteria is not supported by the evidence. For the left knee PFS, the manifestations included lateral instability 1+ with meniscal tear with frequent episodes of locking and joint pain. There was no effusion. The Veteran did not use assistive devices. Since August 23, 2020, the left knee PFS is rated under DC 5259-5257 for a meniscal disability rated under the criteria for DC 5257. A 10 percent rating is the maximum rating available under DC 5259. Pursuant to DC 5257 prior to the February 2021, a rating in excess of 10 percent for instability is not warranted for the period since August 23, 2020. The 10 percent rating for slight instability contemplates the 1+ lateral instability found at VA examination. As there was no anterior, posterior, or medial instability, and instability findings range from normal to 3+, assigning a severity of slight to 1+ lateral instability is appropriate. A rating in excess of 10 percent requires moderate instability. Therefore, a rating in excess of 10 percent for left knee PFS is not warranted since August 23, 2020 under pre-revision DC 5257. Considering the revisions effective February 19, 2021, a rating in excess of 10 percent requires sprain, incomplete ligament tear, a repaired complete ligament tear, or sprain ligament tear causing persistent instability and requiring use of a prescribed assistive device or an unrepaired or failed repair of complete ligament tear causing persistent instability and requiring at least patelloan assistive device or bracing. In this case, no current ligament tear was found, no repair of a ligament tear had been performed, and the Veteran did not use a brace or assistive device. Therefore, a rating in excess of 10 percent for recurrent subluxation or instability is not supported by the evidence under the February 2019 revisions. In addition, the Veteran’s symptoms and diagnoses did not include the patellofemoral complex. Hence, a higher rating for patellar instability is not warranted. Finally, DC 5259 applies to symptomatic removal of semilunar cartilage, and as discussed, the Veteran has not had surgery on either knee. In contrast, DC 5258 applies to dislocated semilunar cartilage and contemplates frequent episodes of pain, locking, and effusion into the joint. In this case, the Veteran has a meniscal tear with frequent episodes of pain and locking. The August 2020 VA examiner specifically did not note the presence of dislocated cartilage, and there was no effusion into the joint. For these reasons, the Board agrees that rating the left knee PFS with meniscal tear and lateral instability is more appropriately rated under DCs 5259-5257 than under DC 5258. Accordingly, a rating in excess of 10 percent under DC 5258 is also denied. The Board has considered the Veteran’s assertions that his back and knee disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. Moreover, the Veteran’s subjective complaints of symptoms with flare-ups have been considered in the ratings assigned. Therefore, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals for higher ratings are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. M. Schaefer, 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.