Citation Nr: 21023525 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 12-13 222 DATE: April 20, 2021 ORDER An initial rating of 20 percent, but no greater, for thoracic kyphosis, residuals of compression fractures of T9, T10 and T11 (herein after “thoracic spine disability”), for the period on appeal prior to September 23, 2020. A rating in excess of 20 percent, for a thoracic spine disability is denied. A total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is denied. REFERRED The issues of service connection for degenerative disc disease of the lumbar spine, a respiratory condition, and fibromyalgia, were raised in a March 2021 representative’s brief, and are referred to the Agency of Original Jurisdiction (AOJ) for adjudication.   FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran’s thoracic spine disability has included kyphosis, an abnormal spinal contour. However, at no time over the entire period on appeal, has the Veteran ever been found to have ankylosis of the spine. Nor has the Veteran ever been found to have had any incapacitating episodes of intervertebral disc syndrome (IVDS) requiring prescribed bed rest. Additionally, the Veteran has never been found to have his thoracolumbar spine forward flexion range of motion functionally limited to 30 degrees or less. 2. For the period on appeal, the Veteran’s service-connected disabilities have not precluded him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent for a thoracic spine disability, for the period on appeal prior to September 23, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5010-5235. 2. The criteria for a rating in excess of 20 percent, for a thoracic spine disability, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, DC 5010-5235. 3. The criteria for a TDIU due to service-connected disabilities have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from October 1978 to May 2008. The matter is on appeal before the Board from May 2010 and September 2014 rating decisions. The Board previously remanded the issues for further development in November 2016, and April 2018. During the pendency of this claim, a December 2020 rating decision granted an increase for the Veteran’s thoracic spine disability from 10 percent to 20 percent, effective September 23, 2020. This decision represents a partial grant of the benefits sought on appeal, pertaining to this issue, as the Veteran was not awarded the maximum benefit provided by the rating schedule, and the Veteran was not granted the amount for the entire period on appeal. Thus, the issue remains before the Board. See AB v. Brown, 6 Vet. App. 35, 39 (1993). 1. Increased Rating Thoracic Spine Disability Procedurally, the Veteran was granted service connection for his thoracic spine disability in a May 2010 rating decision, with a 10 percent evaluation effective June 1, 2008, the day following his separation from active service. The Veteran filed a Notice of Disagreement (NOD) in October 2010, in which he disagreed with the initial 10 percent evaluation. He reported that he was in constant pain, that he could not walk or stand for more than five to 10 minutes, that his ability to sit was also limited, and that he had a curved spine. After the issuance of a Statement of the Case (SOC) in April 2012, the Veteran filed a Form 9 Appeal to the Board. He relayed that he suffers from chronic severe spinal pain, and that his spine continues to curve due to damage. A Supplemental Statement of the Case (SSOC) was issued in October 2014. In November 2016, the Board remanded the issue to provide the Veteran with a VA examination. Another SSOC was issued in December 2016. The Board again remanded the issue in April 2018, to provide the Veteran with another VA examination. As previously noted, in a December 2020 rating decision, the Veteran was granted a 20 percent evaluation for his thoracic spine disability, effective September 23, 2020, the date he underwent a VA examination that showed an increase was warranted. An SSOC was issued in January 2021. Development of the issue has been completed, and it has returned to the Board for further adjudication. A. Applicable Law The Veteran’s thoracic spine disability is rated under DC 5010-5235. Spine disabilities are rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least one week but less than two weeks during a 12-month period on appeal. A 20 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least two weeks but less than four weeks during a 12-month period on appeal. A 40 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least four weeks but less than six weeks during a 12-month period on appeal. A 60 percent rating is assigned when IVDS causes incapacitating episodes having a total duration of at least six weeks during a 12-month period on appeal. 38 C.F.R. § 4.71a, DC 5243. An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note 1. Over the entire period on appeal, the Veteran has been provided with five VA examinations pertaining to his thoracic spine disability. At no time during the entire period on appeal has the Veteran been found to have IVDS with incapacitating episodes or been prescribed bedrest to treat his thoracic spine disability. As such, the Veteran’s thoracic spine disability will be rated under the General Rating Formula for Diseases and Injuries of the Spine. Under the General Rating Formula for Diseases or Injuries of the Spine, a 10 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, DC 5010-5235. Normal ranges of motion of the thoracolumbar spine are flexion from 0 to 90 degrees, extension from 0 to 30 degrees, lateral flexion from 0 to 30 degrees, and lateral rotation from 0 to 30 degrees. 38 C.F.R. § 4.71, Plate V. (Effective February 7, 2021, the DCs pertaining to the lumbar spine were amended. The applicable rating criteria for the DCs regarding the spine did not materially change. See 85 Fed. Reg. 76453 (Nov. 30, 2020) (as corrected at 85 Fed. Reg. 85523 (Dec. 29, 2020), as corrected at 86 Fed. Reg. 8142 (Feb. 4, 2021)).) 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). B. Discussion A review of the Veteran’s record reflects findings of kyphosis over the entire period on appeal. Out of the five VA examinations the Veteran has undergone over the entirety of the period on appeal, only the September 2020 VA examination found the Veteran to have guarding severe enough to result in an abnormal gait or abnormal spinal contour. The examiner described the Veteran as having a slow antalgic unsteady gait due to his thoracic kyphosis, residuals of compression fractures of T9, T10, and T11, guarding of the thoracic spine. While the same conclusion was not reached in the other four VA examinations, in each of those four VA examinations imaging findings showed kyphosis. Additionally, the Veteran’s STRs note kyphotic deformity on imaging prior to the Veteran’s separation from active service. As such, a rating of 20 percent, but no greater, is warranted for the period on appeal prior to September 23, 2020. A rating in excess of 20 percent is not warranted at any time over the entirety of the period on appeal. A review of the record over the entire period on appeal reflects that the Veteran has never been found to have favorable or unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine. Neither has his forward flexion of the thoracolumbar spine ever been limited to 30 degrees or less. The Veteran underwent VA examinations pertaining to his thoracic spine disability in March 2012, November 2016, October 2018, August 2019, and September 2020. The five examinations show that ankylosis of the lumbar spine was absent. Forward flexion of the Veteran’s thoracolumbar spine was not shown to be limited to 30 degrees or less during any of the examinations. The Veteran’s range of motion for forward flexion was limited at its most to 90 degrees during the March 2012 examination, 90 degrees during the November 2016 examination, 90 degrees during the October 2018 examination, 90 degrees during the August 2019 examination, and 40 degrees during the September 2020 examination. These findings take into account pain on motion, repetitive use, repeated use over time, and flare-ups. Thus, at its worst, the Veteran’s forward flexion was limited to 40 degrees. The VA examiner in the September 2020 VA examination, found that the Veteran’s forward flexion would be limited to 40 degrees with both repeated use over time and flare-ups due to factors such as pain, fatigue, weakness, and lack of endurance. In listing these degrees of limitation motion, the Board has cited the greatest degree of limitation motion given, such as during flare-ups or with repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017); Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Even when doing so, his limitation of motion did not more nearly approximate the next-higher disability level. The Veteran’s VA and private treatment records provide findings that are materially the same as those in the VA examinations. Thus, a rating in excess of 20 percent for the Veteran’s thoracic spine condition for the entirety of the period on appeal is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain, weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and § 4.45 for the Veteran’s right knee disability. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). It is the Veteran’s painful motion with functional loss, in addition to the kyphosis, which provides the Veteran with a 20 percent rating for his thoracic spine disability. Even when limitations from pain, lack of endurance, and repetitive motion, are factored in, the Veteran’s motion was estimated to be limited at most to 40 degrees for forward flexion. As such, it has not been shown that functional limitations limited the Veteran’s range of motion to an extent as to warrant a rating in excess of 20 percent at any time over the entirety of the period on appeal. There has also been a question as to the presence of radiculopathy. The Board’s last remand observed that a March 2012 VA examination diagnosed radiculopathy of the left lower extremity, whereas the November 2016 VA examiner opined that the Veteran did not have radiculopathy. The Board directed an examination to provide an opinion reconciling the inconsistent opinions of record. Upon remand, a VA examiner in October 2018 found that there was no evidence of lumbar or thoracic radiculopathy. The examiner explained that radicular pain is not pathognomonic of radiculopathy and hence opined that the March 2012 diagnosis was in error. The Board further observes that two subsequent VA examinations, in August 2019 and September 2020, respectively, were negative for radiculopathy. Hence, overall, this evidence indicates that, even if radiculopathy were present at the March 2012 VA examination, it was no more than slight, and has been absent otherwise. Hence, a separate rating radiculopathy, which requires at least a mild disability, is not warranted. 38 C.F.R. § 4.124a, DC 8520. Otherwise, the evidence confirms the absence of any other neurologic abnormality associated with the spine. The Veteran’s representative argued in a March 2021 brief that the Veteran should be service-connected for degenerative disc disease (DDD) of the lumbar spine, as well as a respiratory condition and fibromyalgia associated with the service-connected lumbar spine disability. The Board has referred those matters to the AOJ for further action. Morgan v. Wilkie, 31 Vet. App. 162, 164 (2019). Those issues have never been adjudicated by the AOJ. The Board finds that the Veteran would be prejudiced should the Board take them up in the first instance and thereby deprive the Veteran of his right to one-review on appeal. 38 U.S.C. § 7104(a); Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003). He is encouraged to follow-up with the AOJ if it remains his intent to seek service connection for those conditions. Accordingly, an initial rating of 20 percent, but no greater, for the Veteran’s thoracic spine disability for the period on appeal prior to September 23, 2020, is granted. However, a rating in excess of 20 percent, for the Veteran’s thoracic spine disability, over the entirety of the period on appeal, is denied. 2. TDIU In the Veteran’s May 2012 Form 9 Appeal to the Board, in relation to his thoracic spine disability, the Veteran reported that his spine had disabled him from working. He relayed that he had not been able to work since his separation from service. Entitlement to a TDIU was raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As the increased rating appeal for the spine arose from a June 2008 claim, the same appeal period applies to the TDIU claim. The Veteran submitted a formal Application for Increased Compensation Based on Unemployability in August 2020, in which he asserted that his thoracic spine disability prevents him from securing or following any substantially gainful occupation. He reported that he had last worked full time on June 1, 2008, and that he had also become too disabled to work as of June 1, 2008. The Veteran had not tried to obtain any employment since he became too disabled to work. The only occupation noted on the application was the Veteran’s active military service. The Veteran also relayed that he had completed college and obtained a bachelor’s degree in education and a master’s degree in education counseling. A. Applicable Law Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • 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. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and • Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). B. Discussion For the entirety of the period on appeal, the Veteran is service-connected for sleep apnea with a 50 percent evaluation, thoracic spine disability with a 20 percent evaluation, right knee chondromalacia patella with a 10 percent evaluation, and tinnitus with a 10 percent evaluation. The Veteran is also service-connected with noncompensable evaluations for osteoporosis, residuals of a right elbow fracture, left knee chondromalacia patella, right ear hearing loss, coronary artery disease, and actinic keratosis of the face with scarring secondary to treatment. The combined evaluation of the Veteran’s service-connected disabilities over the entire period on appeal is 70 percent. The Veteran’s combined disability rating meets the criteria for award of a schedular TDIU because there are two or more disabilities, with at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. The Board notes that prior to this decision, the Veteran’s thoracic spine disability was rated at 10 percent prior to September 23, 2020, and at 20 percent thereafter. Thus, the Veteran previously had a combined evaluation of 60 percent for the period on appeal prior to September 23, 2020, and a combined evaluation of 70 percent for the period on appeal thereafter. Thus, when the Board remanded the issue in April 2018, the issue of a TDIU was referred to the Director of Compensation Service for extra-schedular consideration. It is important to observe here that in remanding the case for referral, the Board declined to take any position as to whether any of the criteria for an extra-schedular TDIU was warranted. That is, the Board did not find that the evidence suggested that the Veteran’s thoracic spine disability, or any other service-connected disabilities, prevented him from obtaining or maintaining substantially gainful employment. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). The Board’s remand found that referral was needed as a threshold issue. The Board did not include any certitude or equivocality as to whether an extraschedular TDIU was warranted. Smiddy v. Wilkie, 32 Vet. App. 350, 359 (2020). Hence, the referral itself is not binding. Likewise, the Director of Compensation Service’s opinion is not binding. See, e.g., Kuppamala v. McDonald, 27 Vet. App. 447, 458 (2015), appeal dismissed (June 6, 2016). The Director of Compensation Service found that a TDIU was not warranted. In the Directors Advisory Opinion rendered in January 2021, it was noted that entitlement to a TDIU can only be granted when a Veteran’s inability to maintain gainful employment is due solely to his service-connected disabilities. A Veteran’s level of education was discussed as a factor in determining whether someone may be precluded from sedentary employment due to not being qualified. The Veteran was noted to have a master’s degree, thus showing an aptitude to be able to learn new skills. Reasonable accommodations required by law for those who cannot sit, stand, etc. for long periods of time was also discussed. As such, after consideration of all relevant evidence, to include the Veteran’s education, training, and work history, the Director of Compensation concluded that the Veteran’s service-connected disabilities, or a combination of the effects of those disabilities, did not support an exceptional situation that prevented gainful employment. As explained herein above, the VA examinations show that the Veteran’s service-connected lumbar spine disability impacts his ability to perform the types of activities required of a substantially gainful occupation. This included inability to stand for long periods of time five to 10 minutes without pain, walking, running, for job duties; with potential work-related limitations including repetitive lifting, very heavy lifting, prolonged standing more than one hour without sitting, walking extremely long distances, jarring activity, and bending forward to lift items off the ground. The most recent VA examination in September 2020 found an impact on work-related functioning to involve difficulty with prolonged sitting or standing, difficulty with any bending or twisting, difficulty going up stairs, difficulty walking long distances, avoiding lifting over 10 pounds, and having dyspnea with light-moderate activity. In addition, there was found difficulty with prolonged sitting, and a need to change positions as needed. A Residual Functional Capacity Assessment from November 2012 in the Veteran’s SSA records provides that the Veteran is able to occasionally (occasionally is cumulatively 1/3 or less of an eight-hour day) lift and/or carry (including pulling upward) 20 pounds. He can frequently (frequently is cumulatively more than 1/3 up to 2/3 of an eight-hour day) lift and/or carry (including upward pulling) 10 pounds. He can stand and/or walk (with normal breaks) for a total of about six hours in an eight-hour workday. He can sit (with normal breaks) for a total of about six hours in an eight-hour workday. He can push and/or pull (including operation of hand and/or foot controls) an unlimited amount, other than shown, for lift and/or carry. Under postural limitations the Veteran was noted to be able to climb ramps/stairs frequently, climb ladders/ropes/scaffolds occasionally, balance frequently, stoop (bending at the waist) frequently, kneel frequently, crouch frequently, and crawl frequently. In the disability assessment, it was noted that the Veteran demonstrated the maximum sustained work capability for light. The Veteran’s SSA records also contain a Function Report filled out by the Veteran, in which he reported that due to his conditions, he was no longer able to run, stand for longer than five minutes, or lift objects over 10 pounds. He also noted that due to pain, he wakes up during his sleep about every two to three hours. He reported that his conditions did not create any problems with his abilities to perform personal care, such as feeding himself, dressing, bathing, etc. He reported that he contributes with house and yard work, by doing light cleaning, laundry, and ironing. He noted that he can do light housework, and limited yardwork, however, standing for long periods or pushing a lawn mower greatly increases his back pain. The Veteran also reported that his conditions affect lifting, such that he cannot lift over 10 pounds; squatting, noted as difficult; standing, such that he cannot stand for over five minutes without pain; walking, such that he cannot walk for over five to ten minutes, and he has a cane; sitting, his back hurts when sitting upright; and stair climbing, noted as difficult. The evidence also indicates, however, that the Veteran retained significant physical functionality. At the August 2019 VA examination, the Veteran reported attending yoga classes three times weekly and lifting “light” weights once weekly. Also, for example, in May 2019, at a Rheumatology Bone Health Clinic consultation, it was noted that the Veteran goes to the gym about four days per week and does lifting and aerobic exercises. He reported that he does not run as it is limited by his back pain, but he does walk two miles every other day. Over the period on appeal, the Veteran has not undergone any VA examinations pertaining to any of his other service-connected disabilities. The other medical records also do not reflect on the impact of those disabilities on his ability to work a substantially gainful occupation. However, he claimed a TDIU solely on the basis of his lumbar spine disabilities. Hence, remand for a VA examination as to those disabilities is not needed. It is important to note that the Veteran was awarded disability by the Social Security Administration (SSA) as of June 2, 2008 due to disorders of his back and fibromyalgia. This confirms that he is indeed unemployable due to his multiple medical disabilities. However, the SSA award was based on the rules and regulations applicable to that agency, which do not apply to VA and are different from the laws and regulations concerning TDIU. To this end, the SSA award was based on fibromyalgia, which is not a service-connected disability. A review of the Veteran’s record pertaining to education and work history, as noted above, reflects that the Veteran has a bachelor’s degree in education and a master’s degree in education counseling. The Veteran’s work history is his active service. His positions included Unit Commander, Executive Assistant to the Commander, Commander, and Inspector General. Taking all of the above into account, the evidence of record is insufficient to show that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Board acknowledges that the Veteran’s thoracic spine disability would create some restrictions in the type of work he would be capable of performing, such as with work that would require prolonged sitting, standing, or heavy lifting. However, it would not preclude him from obtaining non-manual labor positions. The type of work the Veteran would be capable of doing would require some accommodations, such as the ability to move about and switch positions, however, with the Veteran’s work history in service and his level of education, the type of work he would be capable of doing would easily allow for these accommodations. Just taking into account the Veteran’s education with a bachelor’s degree in education and a master’s degree in education counseling, the Veteran would have transferrable skills adaptable to a sedentary-type position, even if it were not one in the same field as his past relevant work. The question is whether he would be capable of any substantially gainful occupation. (In using the term “sedentary,” the Board intends the term to have the common meaning of a non-physical job, primarily involving sitting and usually performed in an indoor, office-type environment. See Withers v. Wilkie, 30 Vet. App. 139, 147-48 (2018).) The Board notes that the Veteran’s representative in the March 2021 Appellate Brief, argues that there are other conditions of the Veteran’s that should be taken into account and service-connected, such as fibromyalgia and COPD. However, the Veteran is not currently service-connected for these disabilities, and these issues are not currently before the Board. As such, when determining whether a TDIU is warranted, these disabilities are not a part of the determination. Accordingly, the claim for a TDIU due to the Veteran’s service-connected disabilities is denied. Corey Bosely Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lutgens-Staley, 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.