Citation Nr: 21021926 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-18 171 DATE: April 14, 2021 ORDER An initial rating in excess of 10 percent prior to July 6, 2015, for right knee instability is denied. From September 1, 2016 to June 13, 2018, a rating in excess of 30 percent for a right knee total replacement is denied. REMANDED An initial rating in excess of 10 percent prior to July 6, 2015 for patellofemoral syndrome of the right knee. A total disability rating based on individual unemployability (TDIU) prior to September 1, 2017.   FINDINGS OF FACT 1. Prior to July 6, 2015, the Veteran experienced slight right knee instability. 2. Prior to June 13, 2018, the Veteran’s right total knee replacement resulted in intermediate degrees of residual weakness, pain or limitation of motion, but not chronic residuals consisting of severe painful motion or weakness in the affected extremity. CONCLUSIONS OF LAW 1. Prior to July 6, 2015, the criteria for a rating in excess of 10 percent for instability of the right knee have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5257. 2. Prior to June 13, 2018, the criteria for an evaluation in excess of 30 percent for left total knee replacement have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, DC 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1979 to May 1982. The case is on appeal from an April 2015 rating decision. Most recently, the Board issued a decision in November 2019 that denied a rating in excess of 10 percent based on limitation of motion for the Veteran’s right knee condition; granted an initial 10 percent rating based on instability prior to July 6, 2015 for the Veteran’s right knee condition; denied a rating in excess of 30 percent prior to June 12, 2018 following the Veteran’s right knee total replacement; granted a 60 percent rating from June 13, 2018 for the Veteran’s right knee replacement; and granted a TDIU from September 1, 2017. The Veteran subsequently appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The parties to this appeal entered into an October 2020 Joint Motion for Partial Remand (Joint Motion), wherein they agreed not to disturb the Board’s grant of a 10 percent rating for instability of the right knee; a 60 percent rating for a right knee total replacement from June 13, 2018; and a TDIU from September 1, 2017. They also agreed to remand the issues of a rating in excess of 10 percent for right knee instability prior to July 6, 2015; an initial rating in excess of 10 percent prior to July 6, 2015 based on limitation of motion for the Veteran’s right knee condition; a rating in excess of excess of 30 percent prior to June 12, 2018 following the Veteran’s right knee total replacement; and entitlement to a TDIU prior to September 1, 2017. In an Order dated in November 2020, the Court granted the Joint Motion and remanded the noted claims back to the Board. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. 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. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage and the functional loss with respect to all of these elements. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is “factually ascertainable,” all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, “it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. The Court has held that VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, “pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system.” Rather, pain may result in functional loss, but only if it limits the ability “to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance.” Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or particular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. 38 C.F.R. § 4.59. In Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis context, the Board should address its applicability.   1. An initial rating in excess of 10 percent prior to July 6, 2015 for right knee instability. Specific Legal Criteria From December 22, 2014 (date of the effective date of the award of service connection), to July 6, 2015, the Veteran’s service-connected right knee disability is rated 10 percent disabling under DC 5257 for slight instability. Under DC 5257, a 10 percent rating is warranted for either slight recurrent subluxation or slight lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or moderate lateral instability; and a 30 percent rating is warranted for severe recurrent subluxation or severe lateral instability. 38 C.F.R. § 4.71a, DC 5257. Merriam-Webster dictionary defines “slight” as small of its kind or in amount; “moderate” as tending toward the mean or average amount or dimension; and “severe” is “of a great degree.” See https://www. merriam-webster.com/dictionary/slight; www.merriam-webster.com/dictionary/ moderate; www.merriam-webster.com/dictionary/severe. During the course of this appeal, the schedular rating for evaluating knee instability under DC 5257 was amended effective February 7, 2021. See 85 Fed. Reg. 76, 453 (Nov. 30, 2020). However, because the appellate period preceded the effective date for this rating schedule change, the amended DC is not applicable here, and the claim will be evaluated under the pre-amended version of DC 5257. Factual History The evidence of record includes a December 2014 VA orthopedic consultation note. At that time, the Veteran complained of chronic knee pain. The examining physician noted that a physical examination revealed no erythema, ecchymosis, or swelling. He also noted tenderness to palpitation over both the medical and lateral joint lines and that there was pain with patellar compression and movement, and the presence of crepitus. In addition, anterior and posterior drawer testing was negative, and the Veteran’s knee was stable with varus and valgus stress testing. A January 2015 private orthopedic clinic note states that the Veteran had full range of motion of the right knee and that the Veteran experienced global pain. The examining physician also noted that the Veteran’s ligaments were stable to varus/valgus stress. The Veteran underwent an April 2015 VA examination. Concerning joint stability testing, the examiner noted there was not a history of recurrent subluxation, history of lateral instability, or recurrent effusion. The examiner indicated there was no joint instability after performing joint stability testing. The examiner performed testing for anterior instability, posterior instability, medial instability, and lateral instability and the Veteran tested normal for all tests. Concerning assistive devices, the examiner noted that the Veteran regularly uses a knee brace. The evidence of record also includes a June 2015 private treatment record from the private orthopedic surgeon who performed the Veteran’s right knee replacement surgery in July 2015. The orthopedic surgeon stated in his notes that the Veteran had 3 to 4 mm of varus and valgus laxity, 2+ effusions, and moderate to severe patellofemoral crepitus was noted with range of motion. During the July 2016 Board hearing, the Veteran stated his right knee would give out with minor stress and continues to give out due to instability. Analysis The Board finds a higher rating for Veteran’s right knee instability is not warranted. The Veteran was awarded a 10 percent rating based on the presence of “slight” recurrent subluxation or lateral instability. In this regard, the Veteran’s lay statements that he experiences instability; his use of a knee brace, as noted at the time of the April 2015 VA examination; and a June 2015 private treatment record from the Veteran’s orthopedic surgeon noting three to four millimeters of varus and valgus laxity indicate that the Veteran experienced instability of the right knee. However, other evidence of record calls into question whether the Veteran experienced instability of the right knee. In particular, the evidence of record includes a December 2014 VA orthopedic consultation indicating anterior and posterior drawer testing was negative, and the Veteran’s knee was stable with varus and valgus stress testing. In addition, a January 2015 private orthopedic note states that the Veteran’s ligaments were stable to varus/valgus stress. Other evidence indicating the absence of instability includes the April 2015 VA examination report which states that there was no joint instability after performing joint stability testing. At that time, the examiner performed testing for anterior instability, posterior instability, medial instability, and lateral instability and the Veteran tested normal for all tests. Here, the Board finds that in consideration of the evidence described above, the Veteran’s right knee instability is slight, meaning small of its kind or in amount. In this regard, the presence of instability is absent from much of the evidence. However, the Veteran’s orthopedic surgeon noted in June 2015 only three to four millimeters of varus and valgus laxity. Therefore, the preponderance of the evidence is against a higher rating as moderate instability is not shown in light of its absence in much of the medical evidence of record and where it is noted, it is only noted as three to four millimeters of varus and valgus laxity. As the Board has defined the terms in question, the concerns of the October 2020 JMR have been addressed. As there is no reasonable doubt to be resolved, the benefit of the doubt rule is not applicable and higher rating for the Veteran’s right knee instability for this rating period is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding others claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). 2. A rating in excess of 30 percent from September 1, 2016 to June 13, 2018 for a right knee total replacement. Specific Legal Criteria The Veteran’s right total knee replacement is evaluated under 38 C.F.R. § 4.71a, DC 5055. Under DC 5055, a 100 percent evaluation is assigned for prosthetic replacement of the knee joint for one year following implantation of prosthesis. The minimum rating for this disability is 30 percent based on intermediate degrees of residual weakness, pain or limitation of motion, rated by analogy to DCs 5256, 5261, or 5262. Outside periods of temporary total ratings, the maximum rating under DC 5055 is 60 percent based on chronic residuals consisting of severe painful motion or weakness in the extremity. During the course of this appeal, the schedular rating for evaluating knee replacements under DC 5055 was amended effective February 7, 2021. See 85 Fed. Reg. 76, 453 (November 30, 2020). However, because the appellate period preceded the effective date for this rating schedule change, the amended DC is not applicable here, and the claim will be evaluated under the pre-amended version of DC 5055. Factual History The evidence of record includes a private treatment note dated in March 2016, approximately seven months after the Veteran’s right knee total replacement from the Veteran’s primary care provider. She stated that at that time, the Veteran’s right knee had excellent range of motion with both active and passive testing. She also noted that the Veteran experienced mild discomfort with maneuvers, but that the Veteran’s gait was normal and that his observed standing and sitting appeared to be normal. In June 2016, the Veteran began receiving treatment for bilateral knee and hip pain at a pain clinic. The treating physician noted that the Veteran described general knee pain, and characterized the knee pain as constant, deep, aching and throbbing. He noted further that knee pain was aggravated by flexing, extending, climbing, walking, and applying pressure. In July 2016, the Veteran underwent a total arthoplasty of the left knee. A July 2016 treatment note from the private pain clinic indicates that the Veteran was receiving opioids for his bilateral hip and knee pain. The Veteran reported a pain score of 8/10 and that the current regimen was adequate. The note also indicates that the Veteran underwent a total knee replacement of his left knee earlier that month. An August 2016 note from the private pain clinic indicates that the Veteran continued treatment with opioids for bilateral hip and knee pain. With regard to pain scores, the Veteran reported a current pain level of 7.5/10, and average of 7.5/10, a minimum pain level of 6.5/10 with medication and a maximum pain level of 9/10 with medication. The Veteran also reported that the current medication regimen was adequate. The note also indicated that the Veteran was compliant with the terms of his medication contract. A September 2016 treatment note from the private pain clinic indicates that the Veteran reported a current pain level, average pain level, minimum pain level, and maximum pain level of 7/10. He also reported that the current regimen was ineffective. The note stated that recent intervention included adding Oxycodone and Fentanyl, but the Veteran denied any improvement in pain. A September 2016 private treatment record reflects that the Veteran was seen by his primary care provider. At that time, he complained of insomnia due to pain. The Veteran stated that he believes he has nerve damage due to his total arthoplasty of the left knee. At that time, chronic pain of left knee was noted, but right knee pain was not reported by the Veteran. An October 2016 note from the private pain clinic states that that Veteran continued treatment with opioids for bilateral hip and knee pain. With regard to pain scores, the Veteran reported a current pain level, average pain level, minimum pain level, and maximum pain level of 7/10. The Veteran reported that the current medication regimen was not strong enough. The note also indicates that Fentanyl was added to his regimen and that because he lost a prescription for Oxycontin, he had not taken any for the previous two weeks. A November 2016 note from the private pain clinic reflects ongoing treatment for bilateral hip and knee pain. With regard to pain scores, the Veteran reported a current pain level, average pain level, minimum pain level, and maximum pain level of 7/10. The Veteran reported that the current regimen was ineffective but that he is receiving about 20 percent pain relief. The note also indicates that the Veteran’s most recent drug test was negative for prescribed opioids. The note also states that the pain clinic physician spoke to the orthopedic surgeon who performed the Veteran’s total knee replacement of the left knee, who stated that the Veteran would not be having another surgery, and as such, it was time to titrate down on medication or go through a program for medication management and dependence. December 2016 VA treatment records reflect that the Veteran contacted VA requesting referral to another pain clinic as his current pain clinic will no longer treat him. A VA nurse subsequently contacted the pain clinic and was informed that the Veteran was noncompliant with his treatment and the clinic would no longer be issuing regular prescriptions for him. The VA nurse was also informed that the Veteran that the pain clinic would continue to treat him, but he would need to contact the clinic to schedule an appointment. An October 2017 treatment note from the Veteran’s private primary care provider states that the Veteran complained of left leg pain. He did not complain of right knee pain at that time. The Veteran underwent a VA examination in February 2018. At that time, the examiner reported diagnoses including bilateral total knee arthroplasties. The examiner noted that the Veteran was a poor historian regarding his knee condition due to treatment with narcotics. The Veteran stated that he takes Oxycodone three times a day to manage his left and right knee and back pain. The Veteran reported experiencing flare-ups if he lies down on his knee the wrong way or walks any distance. In terms of functional loss, the Veteran reports that he is unable to climb stairs or carry any weight. Range of motion testing revealed flexion to 110 degrees and extension to zero degrees and that there was pain exhibited on both flexion and extension. The examiner also determined that there was evidence of pain on weight bearing. The Veteran was able to perform repetitive use testing with no additional loss of function or range of motion after three repetitions. The examiner noted that the examination was not conducted during a flare-up, but that pain could limit functional ability during a flare-up. The Veteran reported that during flare-ups the loss of range of motion depended on how strenuously the joint was used. The examiner did not determine the severity level of the residuals of the right knee replacement. He noted that there was no evidence of pain on non-weight-bearing. The examiner stated that the Veteran’s right knee condition had worsened. A March 2018 private primary care provider note states that the Veteran was being seen for pain management for chronic back pain. He did not complain of knee pain at that time. A May 2018 treatment record from the Veteran’s private primary care provider states that the Veteran complained of pain in his left knee. He did not complain about pain in his right knee and stated that he had not taken any Oxycodone for the pain for several months. The evidence of record also includes a treatment notes from the private pain clinic from June 2018 through February 2019 when the Veteran returned for treatment. During this time period, the Veteran reported knee pain that averaged at 7/10. He stated that the pain radiated up to the hips and down the to his feet. The Veteran characterized the pain as burning, numbness, spasming, sharp, and throbbing and that the pain is aggravated by climbing stairs, driving, lifting objects, and walking. On physical examination, it was noted that the Veteran had allodynia and hyperalgesia of his lower extremities and that Veteran’s gait and posture were noted as normal. The Veteran was prescribed Oxycodone. Analysis Upon review of the evidence, the Board finds that a rating in excess of 30 percent from September 1, 2015 to June 13, 2018 is not warranted. In this regard, the private treatment note dated March 2016, only seven months post total knee replacement of the right knee states the Veteran’s right knee had excellent range of motion with both active and passive testing. She also noted that the Veteran experienced mild discomfort with maneuvers, but that the Veteran’s gait was normal and that his observed standing and sitting appeared to be normal. The Board notes that although the Veteran was rated at 100 percent at this time, this is some indication that the Veteran experienced improvement in right knee symptomatology as a result of his total knee arthoplasty. In addition, the September 2016 private treatment record reflects that the Veteran complained of only left knee pain and did not mention right knee pain to his primary care provider. The February 2018 VA examination indicates that the Veteran experienced some pain. However, the evidence does not show the presence of additional loss of motion on 3 repetitions of testing, crepitus, loss of strength, ankylosis, instability, or subluxation. In addition, the Veteran’s right knee range of motion from zero to 110 degrees would not warrant a rating in excess of 30 percent under DC 5260 or DC 5261. 38 C.F.R. § 4.71a, DCs 5260 5261. Moreover, similar to the September 2016 primary care note, primary care notes from March 2018 and May 2018 show that the Veteran did not complain of any symptomology related to his right knee although he reported experiencing pain in his low back and his left leg. The Board finds that had the Veteran been experiencing symptoms that could have been characterized as severe painful motion or weakness as required by the 60 percent disability rating under DC 5055, it is likely that he would have reported those symptoms during at the time of those visits with his primary care provider as he reported other similar symptomology. The Board acknowledges that the Veteran underwent treatment at a pain clinic from June 2016 to November 2016 for bilateral knee pain and bilateral hip pain. However, the Board notes that these records do not distinguish between the severity of pain the Veteran experienced between his right and left knee. In consideration of the fact that the Veteran underwent a total knee replacement of his left knee during this time period, the Board acknowledges that the Veteran’s left knee disability was likely severe during this time. However, as the pain clinic records do not distinguish between the severity of pain the Veteran experienced with regard to the left knee and the right knee, the Board finds the September 2016 private treatment record from the Veteran’s private primary care provider reflecting that complained of only left knee pain and failed to report any right knee pain at that time, more probative as to the severity of the Veteran’s right knee disability during that time period. As noted above, the Board finds that had the Veteran been experiencing symptoms that could have been characterized as severe painful motion or weakness as required by the 60 percent disability rating under DC 5055, it is likely that he would have reported those symptoms during at the time of that visit with his primary care provider as he reported left knee symptomatology. The Board has considered whether it may be appropriate to rate the Veteran’s right knee disability under other DCs. However, the provisions of 38 C.F.R. § 4.14 prohibit the evaluation of the same disability under various diagnoses and provide that the evaluation of the same manifestations under different diagnoses is to be avoided. Separate evaluations are, however, available when none of the manifestations of the disabilities at issue overlap. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As DC 5055 contemplates all residuals up to the 30 percent level of impairment, only DCs 5256, 5261, or 5262 are potentially applicable for a separate rating. However, as the evidence does not show ankylosis, extension to 30 degrees or worse, even with painful motion and other factors, or nonunion of the tibia and fibula, a separate rating is not warranted. As the Board has considered the evidence prior to the effective date of the 60 percent rating, the concerns of the October 2020 JMR have been addressed. In sum, the preponderance of the evidence is against the claim; the benefit of the doubt doctrine is not applicable; and a rating higher than 30 percent for total right knee replacement residuals prior to June 13, 2018 is therefore not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding others claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. An initial rating in excess of 10 percent prior to July 6, 2015 for patellofemoral syndrome of the right knee. The October 2020 Joint Motion found that the Board erred in relying on an inadequate April 2015 VA examination. The Joint Motion states that the examiner who provided the April 2015 examination stated that the Veteran experienced right knee pain that caused functional loss. However, the examiner did not make any findings as to where pain began, or any additional limitation of motion that may be due to pain, which rendered the VA examination inadequate. In addition, the Board notes that the April 2015 VA examination does not include findings pursuant to Correia v. McDonald, 28 Vet. App. 158 (2016) (instructing that VA orthopedic examinations should include tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing (if applicable) and, if possible, with the range of the opposite undamaged joint). Therefore, this claim is remanded to obtain an opinion in regard to retrospective findings based on the historic range of motion testing noted in order to determine the proper ratings for the Veteran’s right knee condition prior to July 6, 2015. 2. A TDIU prior to September 1, 2017. The Board is remanding the issue of a rating in excess of 10 percent prior to July 6, 2015 for right knee patellofemoral syndrome. As such could significantly impact a decision on the issue of a TDIU, the issues are inextricably intertwined. Thus, a remand of the a TDIU prior to September 1, 2017 is also warranted. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate VA examiner to assess the severity of the Veteran's service-connected right knee condition prior to July 6, 2015. The record, including a complete copy of this remand, should be made available for review in connection with the examination. Following a review of the record, the examiner should provide retrospective findings in regard to pain on range of motion testing and an estimation of functional loss, per Correia. Specifically, the examiner should estimate the amount in degrees of range of motion lost due to pain in both weight-bearing and nonweight-bearing positions, and on both active and passive motion experienced by the Veteran at the time of VA examination conducted in April 2015. If the examiner cannot provide some or all such retrospective opinions, the examiner must make clear that he or she has considered all relevant, procurable data, but that any member of the medical community at large could not provide such an opinion without resorting to speculation. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Gray, 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.