Citation Nr: 21021482 Decision Date: 04/13/21 Archive Date: 04/13/21 DOCKET NO. 16-15 244 DATE: April 13, 2021 ORDER New and material evidence sufficient to reopen a claim for entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), has been received, and to that extent only, the claim is granted. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDINGS OF FACT 1. Rating decisions in April 2002, February 2007, November 2009, and June 2013 denied a claim for service connection for a PTSD disability. The Veteran was notified of his rights but did not appeal or submit new and material evidence during the applicable one-year appellate period after each denial. 2. For the claimed PTSD disability, evidence received since June 2013 is not cumulative or redundant of the evidence previously of record, and raises a reasonable possibility of substantiating the Veteran’s claim of service connection for a PTSD disability. CONCLUSIONS OF LAW 1. The June 2013 rating decision is final. 38 U.S.C. §§ 7104, 7105 (2012); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). 2. New and material evidence sufficient to reopen the claim of service connection for a PTSD disability has been received since June 2013, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1982 to May 1992, with subsequent service in the Air National Guard until October 1996. This matter comes before the Board of Veterans’ Appeals (Board) from a December 2014 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in February 2021; a transcript of that hearing is associated with the claims file. The Veteran originally claimed entitlement to service connection for PTSD. However, VA treatment notes indicate previous diagnoses of major depressive disorder, adjustment disorder, bipolar disorder, and mood disorder not otherwise specified (NOS), among others. The Veteran, as a layperson, is not competent to distinguish between competing psychiatric diagnoses, and so a claim of service connection for one is considered a claim for all, and the claim is recharacterized as such. Clemons v. Shinseki, 23 Vet. App. 1 (2009). In any case involving a finally denied claim, the Board must address whether new and material evidence has been received to reopen before addressing the merits of the claim, regardless of whether or not the agency of original jurisdiction (AOJ) has already addressed the question. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001); Wakeford v. Brown, 8 Vet. App. 237, 239–40 (1995). Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2020). With respect to claims to reopen, VA is further required to provide notice of the definition of new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). However, VA is no longer required to provide notice of the element or elements that were found insufficient or the information and evidence necessary to substantiate the insufficient element or elements. See 38 U.S.C. § 5103(a)(1); VAOPGCPREC 6-2014 (Nov. 21, 2014); see also Akers v. Shinseki, 673 F.3d 1352, 1358 (Fed. Cir. 2012). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct. 3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Petition to Reopen In April 2002, February 2007, November 2009, and June 2013, VA denied the original claim of entitlement for service connection for PTSD. The claims were originally denied because the evidence did not show sufficient information to verify or corroborate the claimed stressors necessary for a PTSD diagnosis. The RO reviewed the Veteran’s available service treatment records (STRs), VA treatment records, and his statements regarding the disability. The Veteran did not file a notice of disagreement (NOD) or submit new and material evidence within the one-year appeal period following those decisions. He also did not assert there was clear and unmistakable error in the rating decision. Therefore, the decision became final. 38 U.S.C. § 7105(c) (2007); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (2012). The Veteran sought to reopen the claim in June 2014. The RO reviewed the Veteran’s available service treatment records (STRs), VA treatment records, and his statements regarding his PTSD and other acquired psychiatric disabilities. The RO denied the claim in December 2014, and the Veteran was notified on December 20, 2014. The Veteran filed a notice of disagreement (NOD) in February 2015. VA issued a statement of the case (SOC) in February 2016. The Veteran perfected an appeal to the Board in April 2016 and the appeal was certified before the Board also in April 2016. The Board is required to address new and material claims in the first instance. The Board has the jurisdiction to address a new and material issue and to reach the underlying de novo claims. If the Board determines that new and material evidence has not been received, the adjudication of the particular claim ends, and further analysis is neither required nor permitted. Any decision that the AOJ may have made with regard to a new and material claim is irrelevant. Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). Thus, the Board will adjudicate this new and material issue in the first instance. New evidence is defined as existing evidence not previously submitted to VA since the last final denial, and material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2020). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. Additionally, the United States Court of Appeals for the Federal Circuit has noted that new evidence could be sufficient to reopen a claim if it could contribute to a more complete picture of the circumstances surrounding the origin of a claimant’s injury or disability, even where it would not be enough to convince the Board to grant a claim. Hodge v. West, 155 F.3d 1356, 1363 (Fed. Cir. 1998). Only evidence presented since the last, final denial on any basis (either upon the merits of the case, or upon a previous adjudication that no new and material evidence has been presented) will be evaluated in the context of the entire record. Evans v. Brown, 9 Vet. App. 273, 284 (1996). The Board considers the last, final denial to be the June 2013 rating decision. For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). However, VA is not bound to consider credible the patently incredible. Duran v. Brown, 7 Vet. App. 216 (1994). Claim Reopened The evidence of record in June 2013 consisted of service records, including personnel and medical records, and VA treatment records. The evidence of record at that time did establish diagnoses at different times of various acquired psychiatric disorders, to include psychosis, mood disorder not otherwise specified (NOS), depressive disorder, bipolar disorder, and multiple personality disorders, but it did not establish a nexus back to service for any of them. PTSD was also cited as a diagnosis in treatment records, but it has not been diagnosed by VA pursuant to VA regulations as of this writing. See 38 C.F.R. §§ 3.304(f), 4.125(a); see also Cohen v. Brown, 10 Vet. App. 128 (1997). Since the June 2013 rating decision, the Veteran’s file has additional VA medical records that have been attached to the claims file. Also, the Veteran provided testimonial evidence during his February 2021 hearing with the undersigned Veterans Law Judge. These VA medical records show continuing treatment for the Veteran’s PTSD and acquired psychiatric disorders through to the present. This new evidence is not cumulative or redundant of the evidence previously of record. The Board is reminded in this regard that the threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” Shade. And further, that consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied. This newly received evidence basically provides a more complete picture as to the nature of the Veteran’s PTSD and other possible acquired psychiatric disorders in question, and under the low threshold standard could reasonably trigger the Secretary’s duty to assist. Id. at 118. Therefore, assuming its credibility for the purpose of the threshold question of whether the claim can be reopened, the newly received evidence raises a reasonable possibility of substantiating the Veteran’s claim of service connection for PTSD and/or another acquired psychiatric disorder. As new and material evidence has been received, reopening of the previously denied claims of entitlement to service connection for PTSD is warranted. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2020). To that extent only, the claim to reopen for service connection for PTSD is granted. REASONS FOR REMAND The Veteran is seeking service connection for an acquired psychiatric disorder, originally claimed as PTSD. As noted above, due to other psychiatric diagnoses of psychosis, mood disorder NOS, depressive disorder, bipolar disorder, anxiety disorder, and multiple personality disorders, the claim has been expanded to include any acquired psychiatric disorder. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a mental health disability claim includes any mental disability that may reasonably be encompassed by the claimant’s description of the claim, reported symptoms, and the other information of record). Entitlement to service connection for an acquired psychiatric disorder, to include PTSD, is remanded. The Veteran claims entitlement to an acquired psychiatric disorder, to include PTSD. The Veteran has been denied five times for this claim but has never received a VA compensation and pension examination for his claim, despite multiple diagnoses of various acquired psychiatric disorders, including psychosis, depressive disorder, mood disorder, bipolar disorder, anxiety, PTSD, and the possibility of pre-existing mental disorders and personality disorders. While congenital or developmental defects are not diseases or injuries within the meaning of the applicable legislation and are generally not subject to service connection, service connection is possible if there is evidence of additional disability due to aggravation during service of the congenital defect by superimposed disease or injury. 38 C.F.R. §§ 3.303(c), 4.9; see Winn v. Brown, 8 Vet. App. 510, 516 (1996); VAOPGCPREC 82-90; Monroe v. Brown, 4 Vet. App. 513, 514-15 (1993); Carpenter v. Brown, 8 Vet. App. 240, 245 (1995); VAOPGCPREC 67-90; VAOPGCPREC 11-99. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish entitlement to service-connected compensation benefits, a Veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called “nexus” requirement.” Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be granted for a psychosis, when it is manifested to a compensable degree within one year of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. A personality disorder is not a disability for which service connection may be granted; rather, it is considered a constitutional or developmental abnormality. See 38 C.F.R. §§ 3.303(c); 4.127. However, evidence of additional disability resulting from a mental disorder that is superimposed upon a congenital or developmental defect such as a personality disorder during service may be service-connected. Id. A veteran will be considered to have been in sound condition when examined, accepted and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable (obvious or manifest) evidence demonstrates that an injury or disease existed prior thereto. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). However, the Court has held that the presumption of soundness does not apply to congenital defects because such defects are not considered diseases or injuries within the meaning of 38 U.S.C. §§ 1110 and 1111. See Quirin v. Shinseki, 22 Vet. App. 390, 396-97 (2009); see also Terry v. Principi, 340 F.3d 1378, 1385-86 (Fed. Cir. 2003); Winn v. Brown, 8 Vet. App. 510, 516 (1996). When no preexisting condition is noted upon entry into service, the burden falls on the government to rebut the presumption of soundness by clear and unmistakable evidence that the disability was both preexisting and not aggravated by service. Wagner v. Principi, 370 F.3d 1089 (Fed. Cir. 2004). The government may show a lack of aggravation by establishing that there was no increase in disability during service or that any increase was due to the natural progress of the preexisting condition. Id. at 1096. A claimant is not required to show that the disease or injury increased in severity during service before VA meets both of these burdens. See VAOPGCPREC 3-2003. A lack of aggravation during service can be shown by establishing by clear and unmistakable evidence either that there was no increase in disability, or that any increase in disability was due to the natural progression of the preexisting condition. 38 U.S.C. § 1153; 38 C.F.R. § 3.306; Wagner, 370 F.3d at 1096; Horn v. Shinseki, 25 Vet. App. 231, 235 (2012). The Veteran “need not produce any evidence of aggravation in order to prevail”; instead, the burden is on the VA to identify affirmative evidence demonstrating that there was no aggravation. Horn, 25 Vet. App. at 235. The burden is not met by finding that the record contains insufficient evidence of aggravation. Id. The Board also notes that the evidence suggests that the Veteran had a personality disorder that existed prior to entry. However, congenital or developmental defects such as personality disorders are not diseases or injuries within the meaning of applicable legislation, and therefore service connection for them is generally precluded by regulation. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. This is because defects are defined as “structural or inherent abnormalities or conditions which are more or less stationary in nature.” VAOPGCPREC 82-90 (July 18, 1990). In fact, congenital or developmental defects, such as personality disorder and mental deficiency automatically rebut the presumption of soundness and are, therefore, considered to have pre-existed service. 38 C.F.R. §§ 3.303(c), 4.9; see also Quirin v. Shinseki, 22 Vet. App. 390, 397 (2009). However, additional disability resulting from a mental disorder superimposed upon, and aggravating, a personality disorder may be service-connected. 38 C.F.R. § 4.127. According to 38 C.F.R. § 3.384, utilizing DSM-5 nomenclature, a “psychosis” includes the following specific disorders: brief psychotic disorder, delusional disorder, psychotic disorder due to another medical condition, other specified schizophrenia spectrum and other psychotic disorder, schizoaffective disorder, schizophrenia, schizophreniform disorder, shared psychotic disorder, and substance-induced psychotic disorder. Psychosis NOS (not otherwise specified) has been diagnosed in the Veteran, and is a chronic disease listed under 38 C.F.R. § 3.309(a); therefore, the presumptive service connection provisions based on “chronic” in-service symptoms and “continuous” post-service symptoms under 38 C.F.R. § 3.303(b) apply. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Proof of a current disability is a threshold to establishing service-connection for an acquired psychiatric disorder, to include PTSD. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be a present as a current disability, there must be evidence of the condition at some time during the appeals period. Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Service connection for PTSD specifically requires medical evidence establishing a diagnosis of the disability in accordance with the DSM-5, credible supporting evidence that the claimed in-service stressor actually occurred, and a link, established by medical evidence, between the current symptomatology and the claimed in-service stressor. See 38 C.F.R. §§ 3.304(f), 4.125(a). See also Cohen v. Brown, 10 Vet. App. 128 (1997). The Board notes that VA, effective March 19, 2015, amended the portion of the Rating Schedule dealing with mental disorders so as to replace outdated references to the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV), with references to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). VA directed that the changes be applied only to applications for benefits received by VA or pending before the agency of original jurisdiction (AOJ) on or after August 4, 2014, but not to claims certified to, or pending before, the Board, the Court of Appeals for Veterans Claims (CAVC), or the United States Court of Appeals for the Federal Circuit. As the Veteran’s original PTSD claim was made prior to August 4, 2014, the diagnosis of PTSD pursuant to DSM-IV is applicable to this appeal. See 38 C.F.R. § 4.125(a). The Board notes the Veteran’s service from 1982 to 1992, and his personnel and medical records reflect alcohol dependence and also diagnoses of a personality disorder. Personality disorders are not considered diseases or injuries for which service connection is available. 38 C.F.R. §§ 3.303(c), 4.9, 4.127. Personality disorders are defined by the relevant edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM). The 5th edition (DSM-5) applies to all applications for benefits received by VA or pending before an agency of original jurisdiction on or after August 4, 2014. The Veteran has never received a VA compensation and pension examination for his claimed PTSD. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran’s claim for benefits, there are four factors for consideration. These four factors are: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran’s service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The threshold for determining a possibility of a nexus to service is a low one. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Board also notes that while there is a June 2013 memorandum from the Joint Services Records Research Center (JSRRC), stating an inability to corroborate the claimed stressors of the Veteran’s PTSD claim, that the memo did not address any of the multiple stressors noted by the Veteran, to include his service in the Philippines at Clark Air Base after basic training from 1983 to 1985, his service next in Torrejon, Spain; then in California, followed by England, and the various stressors noted by the Veteran during those assignments. The Board notes as well that the Veteran served in Operations Desert Shield and Desert Storm from August 1990 to February 1991 pursuant to his official records, but nowhere in the record is any mention of that service, or any possible effect on the Veteran’s mental health in that combat environment. The Veteran also has a complex history of substance abuse intertwined with the treatment of his medical and psychiatric disorders. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that compensation cannot be awarded pursuant to 38 U.S.C. §§ 1110, 1131 and 38 C.F.R. § 105(a) either for a primary substance abuse disability incurred during service or for any secondary disability that resulted from primary substance abuse during service. Allen v. Principi, 237 F.3d 1368, 1376 (Fed. Cir. 2001). However, service connection may be granted for an alcohol or drug abuse disability acquired secondary to, or as a symptom of, a service-connected disability. The Federal Circuit further stated that such compensation may be awarded only “where there is clear medical evidence establishing that alcohol or drug abuse is caused by a veteran’s primary service-connected disability, and where the alcohol or drug abuse disability is not due to willful wrongdoing.” Id. at 1381. Direct service connection may be granted only when a disability was incurred or aggravated in line of duty, and not the result of the Veteran’s own willful misconduct or, for claims filed after October 31, 1990, the result of his abuse of alcohol or drugs. 38 U.S.C. § 105; 38 C.F.R. § 3.301(a). Willful misconduct is defined as an act involving conscious wrongdoing or known prohibited action. It involves deliberate or intentional wrongdoing with knowledge or wanton and reckless disregard of its probable consequences, to include the abuse of alcohol or drugs. 38 C.F.R. § 3.301(a). For the purposes of this paragraph, alcohol abuse means the use of alcoholic beverages over time, or such excessive use at any one time, sufficient to cause disability to or death of the user; drug abuse means the use of illegal drugs (including prescription drugs that are illegally or illicitly obtained), the intentional use of prescription or non-prescription drugs for a purpose other than the medically intended use, or the use of substances other than alcohol to enjoy their intoxicating effects. 38 C.F.R. § 3.301(d). See also 38 U.S.C. § 105; 38 C.F.R. § 3.1(m). The matter is REMANDED for the following action: 1. Make appropriate efforts to obtain and associate with the claims file any updated private or VA medical records identified and authorized for release by the Veteran. 2. After the record search is complete, and any new records are added to the claims file, obtain a VA examination and opinion from an appropriate and qualified VA psychologist or psychiatrist to address the nature and etiology of the Veteran’s acquired psychiatric disorders, to include PTSD and psychosis. The claims file must be made available to and reviewed by the examiner. A note that it was reviewed should be included in the report. Based on the review of the Veteran’s entire record, the examiner should provide an opinion as to the following: a) Does the evidence of record clearly and unmistakably, i.e., it is undebatable, show that the Veteran has a mental disorder that preexisted service? b) If so, is it at least as likely as not (50 percent or greater probability) that the preexisting mental disorder underwent any worsening (i.e., increase in severity) during service? c) If so, is there clear and unmistakable evidence that such worsening of the preexisting mental disorder during service was due to the natural progress of the disorder? d) If there is a preexisting disorder that is considered a congenital defect, e.g., a personality disorder, is there evidence of additional disability due to aggravation during service of the congenital defect by any superimposed disease or injury? e) If there is not clear and unmistakable evidence that the mental disorder preexisted service, then the Veteran must be considered sound at entry to service. Based on that premise, then is it at least as likely as not (probability of 50 percent or greater) that the Veteran’s claimed acquired psychiatric disorder(s) had their onset in service or are otherwise related any to any in-service disease, event, or injury? In forming the opinion regarding service connection, the examiner is requested to distinguish between alcohol and substance abuse that is due to the Veteran’s own willful misconduct from that which is or may be due to the Veteran’s diagnosed psychiatric disorder(s). A detailed rationale supporting the examiner’s opinion should be provided. In forming the opinion, the examiner must consider all lay statements of record. If the examiner feels that the requested opinions cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required or the examiner does not have the needed knowledge or training). Jones v Shinseki, 23 Vet. App. 382 (2010). The examiner is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Thereafter, readjudicate the issues on appeal. If the determination remains unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case which addresses all evidence associated with the claims file since the last statement of the case. The Veteran and his representative should be afforded the applicable time period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans’ Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Setter, 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.