Citation Nr: 21021881 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 13-10 740 DATE: April 14, 2021 ORDER Entitlement to a higher rating of 40 percent prior to November 18, 2019 (effective August 1, 2012) for anterior and posterior instability of the right shoulder, postoperative with degenerative arthritis is granted. Entitlement to a rating in excess of 40 percent from November 18, 2019 for anterior and posterior instability of the right shoulder, postoperative with degenerative arthritis is denied. Entitlement to an earlier effective date of August 1, 2012 for the award of a 40 percent rating for service-connected radiculopathy, right upper extremity (radial, median, ulnar, and musculocutaneous nerve) is granted. Entitlement to an increased evaluation in excess of 10 percent for surgical scars of the right shoulder is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran’s overall functional impairment due to pain and lack of endurance more likely approximated the impairment associated with a 40 percent disability for the entire appeal period. 2. The Veteran’s radiculopathy, right upper extremity (radial, median, ulnar, and musculocutaneous nerve) is mild to moderate for the entire appeal period. 3. The Veteran has one scar that is unstable or painful. 4. The evidence of record does not demonstrate the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for entitlement to a higher rating of 40 percent prior to November 18, 2019 (effective August 1, 2012) for anterior and posterior instability of the right shoulder, postoperative with degenerative arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 2. The criteria for entitlement to a rating in excess of 40 percent from November 18, 2019 for anterior and posterior instability of the right shoulder, postoperative with degenerative arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5201. 3. The criteria for entitlement to an earlier effective date of August 1, 2012 for radiculopathy, right upper extremity (radial, median, ulnar, and musculocutaneous nerve) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8513. 4. The criteria for entitlement to an increased evaluation in excess of 10 percent for surgical scars of the right shoulder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 5. The criteria for a total disability rating due to individual unemployability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2002 to August 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision. The Veteran was afforded a hearing before the undersigned Veterans Law Judge in October 2018. In March 2015 and March 2019, the Board remanded the issues for further development. That development was completed, and the case has since been returned to the Board for appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The Schedule is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When two evaluations are potentially applicable, VA will assign the higher evaluation when the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. VA will resolve reasonable doubt as to the degree of disability in favor of the Veteran. 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). As a result, a complete medical history of the Veteran is required for a ratings evaluation. This is in order to protect claimants against adverse decisions based on a single, incomplete, or inaccurate report, and to enable VA to make a more precise evaluation. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, VA has a duty to acknowledge and consider all regulations which are potentially applicable, and to explain the reasons and bases for its conclusions. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). Separate ratings may be assigned for separate periods of time based on the facts found, a practice known as “staged” ratings. Id. The Veteran’s rating has been staged on this basis. 1. Entitlement to a rating in excess of 20 percent prior to November 18, 2019 and 40 percent from November 18, 2019 for anterior and posterior instability of the right shoulder, postoperative with degenerative arthritis The Veteran contends that he is entitled to a higher rating because of severe pain and functional loss in his right shoulder. The Board remanded the Veteran’s claim in March 2015 to have the Veteran undergo an updated VA examination to include an examination that evaluated the Veteran’s neurological complaints. The Board remanded the claim again in March 2019 due to noncompliance with the prior remand directives. In a July 2020 rating decision, the RO increased the Veteran’s disability rating to 40 percent effective November 18, 2019 based on VA examination results. The RO also granted separate compensation for radiculopathy, right upper extremity (radial, median, ulnar, and musculocutaneous nerve) with an evaluation of 40 percent under Diagnostic Code 8513 effective November 18, 2019. The Veteran’s anterior and posterior instability of the right shoulder (right shoulder disability) is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5201, for limitation of motion of the arm. Under Diagnostic Code 5201, limitation of motion of the arm at shoulder level warrants a 20 percent rating for both the major and minor extremity. Limitation of motion of the arm midway between side and shoulder warrants a 20 percent rating for the minor extremity and a 30 percent rating for the major extremity. Limitation of motion of the arm to 25 degrees from side warrants a maximum 30 percent rating for the minor joint and a maximum 40 percent rating for the major joint. 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 “does not provide separate ratings for limitation of motion in the flexion and abduction planes, but rather is addressed generically to limitation of motion of the arm.” Yonek v. Shinseki, 722 F.3d 1355, 1358 (Fed. Cir. 2013). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The evidence of record shows that the Veteran is right-handed. See September 2012 VA examination. The Board acknowledges the Veteran’s lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. He experiences daily severe pain and is unable to hold his child, play sports, or lift weights. In July 2012 and September 2012 statements, the Veteran relates that he has severe chronic shoulder pain and severe loss of range, strength, and movement. He is unable to do basic things such as hold his son with his right arm, throw a football, or lift heavy objects. He takes pain medication daily. Private treatment records note the Veteran has tenderness on palpation at the anterior cuff insertion and the cercoid process. See September 2012 Private Treatment Records. Private treatment records from September 2012 to October 2014 show the Veteran’s shoulder motion was abnormal and pain was elicited on active and passive motion. See Private Treatment Records. At the October 2012 VA examination, the Veteran’s initial range of motion was to 90 degrees upon flexion with painful motion at 80 degrees, abduction to 90 degrees with painful motion at 80 degrees, external rotation was to 90 degrees with painful motion at 80 degrees, and internal rotation was to 90 degrees with painful motion at 60 degrees. The Veteran’s range of motion was to 90 degrees for flexion, abduction, external rotation, and internal rotation. The Veteran did not have ankylosis of the right shoulder. The Veteran relates that his shoulder has severe limited range of motion, lack of strength, lack of endurance, and causes constant pain. See November 2012 Statement in Support of Claim. He takes medication. Id. In January 2013, the Veteran’s flexion and abduction were to 90 degrees each. See January 2013 Private Treatment Records. There was markedly reduced internal and external rotation. Id. The Veteran was unable to get his hand behind his back and unable to get his hand behind his head. Id. The Veteran’s range of motion was markedly limited with flexion to 60 degrees and extension to 20 degrees. See September 2014 Private Treatment Records. There was markedly limited internal and external rotation. Id. Passive range of motion was painful. Id. The Veteran related he is able to raise his arm to shoulder level at best. See Transcript of October 2014 Board Hearing at 10. From February 2016 to September 2017, the Veteran experienced ongoing pain, abnormal shoulder motion, and pain throughout range of motion. See Private Treatment Records. The Veteran’s shoulder is sore and painful upon movement. See September 2018 Private Treatment Records. He has hypertrophy and tenderness on palpation. Id. The Veteran underwent a VA examination in November 2019 which included flexion and abduction reduced to 5 degrees after three repetitions and an estimated 5 degrees on flexion and abduction on repeated use over time. The neurological examination revealed mild to moderate neuropathy affecting several nerves. The Veteran is currently assigned the maximum rating for loss of range of motion. The Board finds that in light of the Veteran’s complaints and the November 2019 VA examiner’s opinion that repeated use over time reduces range of motion to 5 degrees, the Veteran’s overall functional impairment due to pain and lack of endurance more likely approximated the impairment associated with a 40 percent disability for the entire appeal period. Accordingly, the Veteran is entitled to a 40 percent rating, but no higher, effective August 1, 2012, the date of the Veteran’s claim. The VA examination findings do not show severe neurological impairment associated with the Veteran’s right shoulder. As the Veteran, however, has complained of neuropathy affecting his right shoulder for the entire appeal period, the Board also finds that the Veteran is entitled to a 40 percent rating, but no higher, effective August 1, 2012, the date of the Veteran’s claim. The Board has considered whether any other Diagnostic Codes related to disabilities of the shoulder would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. The Veteran does not have ankylosis of the shoulder, impairment of the humerus, or impairment of the clavicle or scapula. 2. Entitlement to an increased evaluation in excess of 10 percent for surgical scars of the right shoulder The Veteran contends that he is entitled to a higher rating due to painful scars that have progressively worsened. See December 2020 Appellate Brief. The Veteran’s surgical scars of the right shoulder (scars) are rated under Diagnostic Code 7804 for unstable or painful scar(s). The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. The Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran’s scar is not manifest by three or four scars that are unstable or painful. The October 2012 VA examiner noted the Veteran has three scars. There are two scars at the posterior right shoulder measuring one centimeter each. There is one scar at the anterior right shoulder measuring seven centimeters. The scar on the anterior right shoulder is painful and sensitive to touch. There were no unstable scars. The November 2019 VA examination reflects that one of the Veteran’s scars is painful and tender to palpation. No scars were unstable. The Veteran has 2.8 centimeters squared of scars without underlying tissue damage. No scars were due to burns. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s scars are not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. The Veteran has one scar that is painful. This disabling effect is considered under the current rating under Diagnostic code 7804. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and medical records do not show, that the Veteran’s scars are manifest by three or four scars that are unstable or painful. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 10 percent for surgical scars of the right shoulder. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) The Veteran contends that his service-connected disabilities render him unemployable and that he is therefore entitled to a TDIU. The Board notes that, generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. TDIU may be assigned where the schedular rating is less than total and it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If a sufficient rating is present, then it must be at least as likely as not that the Veteran is unable to secure or follow a substantially gainful occupation as a result of that disease. See 38 C.F.R. § 4.16 (a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The issue is not whether the Veteran can find employment generally, but whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose, 4 Vet. App. at 363. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). However, it must be considered whether to refer a TDIU claim to the Director of Compensation Service for extraschedular consideration when the Veteran’s service-connected disabilities do not meet the schedular percentage requirement. 38 C.F.R. § 4.16 (b). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) (“applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). The Veteran’s recurrent anterior and posterior instability, right shoulder is rated as 40 percent effective August 1, 2012 (as the result of this decision), radiculopathy of the right upper extremity is rated as 40 percent effective August 1, 2012 (as the result of this decision), right shoulder surgical scars are rated 10 percent effective August 1, 2012, tinnitus is rated as 10 percent effective October 2014, and right shoulder residual scar is rated as noncompensable from November 18, 2019. The combined disability rating is 70 percent from August 1, 2012. As such, the Veteran meets the minimum rating requirements of 38 C.F.R. § 4.16(a). In Ray v. Wilkie, the Court held that the phrase “unable to secure and follow a substantially gainful occupation” in section 4.16(b) has two components: one economic and one noneconomic. Id. at 73. The economic component “simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.” 31 Vet. App. 58, 72-73 (2019). As for the “noneconomic component,” the Court held that this refers to the individual claimant's “ability to secure or follow” an occupation earning more than marginal income. Id. (emphasis in original). In determining whether a Veteran can secure and follow a substantially gainful occupation, the Court stated that attention must be given to several relevant factors: (1) the Veteran's occupational history, education, skill, and training; (2) whether the Veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g. sedentary, light, medium, heavy, or very heavy) required by the occupation at issue; and (3) whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Court noted that these potentially relevant factors were not a “checklist that must be completely run through in every case,” and that any factor need only be discussed if the evidence raises it as an issue. Id. Regarding the physical limitations factor, the Court stated that relevant considerations include, but are not limited to, the Veteran's limitations with respect to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Id. Regarding the mental ability factor, the Court stated that relevant considerations include, but are not limited to, the Veteran's limitations with respect to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. In a September 2012 statement, the Veteran states he resigned from his position in the Sheriff’s Department due to his service-connected right shoulder. He could not work in direct contact with inmates and feared he would not be able to defend himself. He was placed on light duty and in work positions where inmates could not reach him. The Veteran stated he started college and attended full time. He worked for a bails bond company but left due to the low income. Pursuant to his VA Form 21-8940 Application for Increased Compensation Based on Unemployability, the Veteran claims that he became too disabled to work in 2009. The Veteran stated that he completed three years of college and is currently still enrolled. He relates that he last worked in 2009. He lists that he subsequently worked in bail bonds, working eight hours per week from 2009 to 2012. The Veteran’s previous employer, a Sheriff’s Department, completed a form that notes the Veteran worked for four years as a correctional officer from July 2006 to May 2010. The Veteran resigned his employment. The form lists that no concessions were made to the Veteran by reason of age or disability. The October 2012 VA examiner opined the Veteran’s right shoulder impacts his ability to work. The examiner stated the Veteran is able to lift up to five pounds on an occasional basis. A November 2012 VA medical opinion states the Veteran would be employable in a sedentary position related to his service and non-service-connected disabilities. The examiner stated that the Veteran is on chronic narcotics and unable to perform the duties he did in the past. The Veteran relates that he resigned his positions as a corrections officer and bounty hunter because he was physically unable to do the jobs due to his shoulder injury. See March 2013 Correspondence. The November 2019 VA examiner noted the Veteran’s right shoulder impacts the Veteran’s ability to perform some occupational tasks. The Veteran cannot lift more than ten pounds. He is unable to work out and unable to do overhead work. His right shoulder disability affects his sleeping causing anxiety. The Veteran’s mind runs all the time due to the chronic pain. He needs many breaks at work. He is able to work six hours, three days per week. The examiner notes the Veteran is able to use his right arm very little. He often tucks his right hand into his belt since that support helps the pain a little. He cannot work above his waist with his right arm. He works part time only due to worsening pain and the related exhaustion. The Veteran’s resume shows that the Veteran attended school from 2010 through 2013, seeking a license in Alcohol and Drug Counseling. See March 2015 Disabled Veterans Application for Vocational Rehabilitation. He worked as a chemical health technician from January 2014 to April 2014 and was awarded “Tech of the Month” in February, March, and April for exceeding his duties above and beyond expectations. He then worked part-time as a chemical prevention professional from April 2014 to March 2015. A vocational counseling record notes the Veteran’s right shoulder requires the Veteran to have employment that will limit the use of the right arm, lifting, carrying, and prolonged writing and sitting. The Veteran’s service-connected tinnitus requires a quiet work environment. The Veteran’s scars do not cause any functional impairment. The Veteran relates that he is unable to obtain gainful employment because he cannot pass a physical. See Transcript of October 2018 Board hearing at 7. He has worked with teenagers and drug counseling treatment centers, but these jobs are not what he actually wants to do. Id. at 8. The Veteran’s medications prevent him from working due to drug testing requirements. Id. The Board finds that it is not factually ascertainable that the Veteran is unemployable due to his service-connected disabilities. The Board recognizes that the Veteran reported that he stopped working as a corrections officer and in law enforcement in 2009 due to his service-connected right shoulder disability. The record does not persuasively show that due to the Veteran’s service-connected disabilities he is incapable of performing work that includes light physical work or non-physical work. While the Veteran is no longer capable of performing work as a corrections officer and bounty hunter, he is capable of performing other types of employment. The Veteran was able to attend school full-time and obtain employment in drug counseling after leaving his law enforcement employment. VA examiners and the Veteran’s vocational counselor deemed the Veteran able to work in sedentary and light physical and non-physical work. While the Board does not doubt that the Veteran’s service-connected disabilities had a significant effect on his employability, the probative and persuasive evidence of record does not indicate that it is factually ascertainable the Veteran is unemployable due to his service-connected disabilities. As detailed in the prior section evaluating the Veteran’s disabilities, the Veteran retains the ability to lift five pounds or less, bend, sit, stand, and walk. The Veteran’s disabilities do not cause any visual limitations or mental defects. The Veteran has obtained three years of college education and obtained employment working as a chemical technician. He received awards for the high level of his work. To the extent the Veteran asserts that his disabilities rendered him unemployable, the Board finds that the objective medical evidence outweighs his subjective complaints, as the medical evidence was formed by trained health care providers objectively performing their professional duties following objective testing. The Board finds that those objective medical findings are more persuasive because of the training and experience of the medical professionals. Thus, the evidence of record does not persuasively support a finding that the Veteran’s service-connected disabilities prevented him from securing and following a substantially gainful occupation. Accordingly, the Board finds the preponderance of the evidence is against the Veteran’s claim that he is not capable of performing the physical and/or mental acts required by employment. As the preponderance of the evidence is against his claim, a TDIU is not warranted. While the Board has considered the applicability of the benefit of the doubt doctrine, it is not applicable because the preponderance of the evidence is against his claim. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TANYA SMITH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexia E. Palacios-Peters, Associate 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.