Citation Nr: 21023712 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 14-42 346 DATE: April 21, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU) prior to January 1, 2012 is dismissed as moot. Entitlement to a TDIU, to include as on an extraschedular basis, beginning January 1, 2012 is denied. FINDINGS OF FACT 1. Prior to January 1, 2012, the Veteran’s combined rating for compensation purposes is 100 percent. 2. Beginning January 1, 2012, the Veteran’s service connected disabilities do not render him unable to secure or follow a substantially gainful occupation and there were no exceptional factors from the Veteran’s service connected disabilities that precluded him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. Prior to January 1, 2012, the Veteran’s claim of entitlement to a TDIU is moot. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 4.16. 2. Beginning January 1, 2012, the criteria for a TDIU, to include as on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from November 1969 to November 1971, to include service in the Republic of Vietnam. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an October 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) Cleveland, Ohio. Jurisdiction of this appeal is currently with the RO in Roanoke, Virginia. This case was most recently before the Board in August 2020, at which time the appeal was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the Board instructed that the claim be referred to the Director of Compensation Service for consideration of a TDIU on an extraschedular as outlined under 38 C.F.R. § 4.16(a). Such a referral has been conducted and an advisory opinion was obtained in January 2021. The Board therefore finds that there has been substantial compliance with its previous remand. Stegall v. West, 11 Vet. App. 268 (1998). The case has now been returned to the Board for appellate action. Entitlement to a TDIU The Veteran seeks entitlement to a TDIU, to include as on an extraschedular basis. Specifically, the Veteran contends that he has urinary frequency resulting in using the restroom over a dozen times a day, that such restroom breaks also break his concentration on work causing difficulty following basic instructions and that such impairments result in his unemployability. See Statement, January 29, 2021. Additionally, the Veteran points to the VA examination reports indicating that his prostate cancer residuals result in unemployability. Id. The Veteran indicated that he had not been able to return to work since early 2011 due to his prostate cancer. See VA Form 21-4138 Statement in Support of Claim, February 3, 2012. Moreover, the Veteran’s representative contends that the evidence establishes the Veteran is unable to obtain or maintain substantial gainful employment, that there is no medical evidence to refute this, and that the only evidence in contrary is the Executive Director of Compensation service determination that the overall evidence fails to support a grant of a TDIU. See Appellate Brief, March 3, 2021. Furthermore, in an August 2020 statement, the Veteran appears to assert that the combination of his prostate cancer residuals and hepatitis C have rendered him unemployable. See generally Correspondence, August 11, 2020. Specifically, the Veteran appears to assert that his primary challenge to employability is his urinary frequency, but that his hepatitis C medication causes dizziness, and have taken a toll on his physical well-being; and that these are the reasons he has not worked in seven years. Id. Finally, the Veteran appears to assert that he experienced heart attacks, left arm numbness, and extreme chest pressure in combination of his urinary complications and embarrassment, that has manifested in his unemployability. See e.g. Correspondences, October 30, 2020, and November 13, 2020. 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). Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An assessment of TDIU entitlement based on the combined effects of all service-connected disabilities should address all such disabilities. Therefore, the cumulative effects (functional impairment) of all service-connected disabilities should be addressed in determining if the service-connected disabilities prevent substantially gainful employment. Floore, 26 Vet. App. 376; accord Geib v. Shinseki, 733 F.3d 1350, 1353-54 (Fed. Cir. 2013). In making such a determination, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record and every item does not have the same probative value. The Board must analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, account for the evidence that it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad, 1 Vet. App. at 169. The Veteran’s credibility affects the weight to be given to his or her testimony and lay statements, and it is the Board’s responsibility to determine the appropriate weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The claim for a TDIU, to include as on an extraschedular basis, stems from a December 2011 claim related to his prostate cancer and hepatitis C. See VA Form 21-526 Veterans Application for Compensation or Pension. Specifically, a June 2018 Board decision found the claim for entitlement to a TDIU had been raised by record in relation to his currently pending increased rating claims under Rice v. Shinseki, 22 Vet. App. 447 (2009), and the issue was added for appellate consideration. Throughout the period on appeal, the Veteran was service connected for residuals of prostate cancer rated as 100 percent disabling prior to January 1, 2012, 20 percent from January 1, 2012 to August 26, 2013, and 40 percent thereafter; hepatitis C rated as 10 percent from December 19, 2011; and erectile dysfunction associated with residuals of prostate cancer rated as noncompensable. His combined rating for compensation was 100 percent prior to January 1, 2012, 30 percent from January 1, 2012 to August 26, 2013, and 50 percent thereafter. Thus, beginning in January 1, 2012, he does not meet the schedular criteria and a TDIU on a schedular basis is not warranted. 38 C.F.R. § 4.16(a). Turning to the evidence, the Board notes that record reflects the Veteran complained of, and was treated for significant urinary frequency. See e.g. Private treatment records, June 30, 2011, and August 12, 2011; see also e.g. VA treatment record, September 12, 2014. At other times, the Veteran denied urinary frequency or dysfunction. See e.g., Private treatment records, November 16, 2011, and March 21, 2012; see also e.g., VA treatment record, November 14, 2014. Of record is a September 2010 letter from the Veteran to his former employer, J.H. the Regional Vice President at a national store. In that letter, the Veteran indicates he had recently resigned in June 2010 and wanted to share the reasons for his resignation with the Regional Vice President. Essentially, the September 2010 letter appears to indicate the Veteran was unsatisfied with the lack of available training, that a combination of departments resulted in exacerbating his nonservice-connected knee disorder, and indicated he was hopeful he would be able to work for a better suited store location in the future. At a September 2012 VA examination for his prostate cancer, the examiner noted that his prostate cancer would impact his ability to work due to the frequency and incontinence of urine. At a September 2012 VA examination for erectile dysfunction, the examiner noted that his erectile dysfunction did not impact his ability to work. At a September 2012 VA examination for hepatitis C, the examiner noted that his hepatitis C would impact his ability to work due to fatigue and not feeling well. October 2012 Vocational Rehabilitation and Education records indicate that the Veteran had frequent urination and the Veteran reported he would need to be located where his disability would not be a factor. The record reflects the Veteran began receiving Social Security Administration (SSA) disability payments beginning in February 2014. In his November 2014 substantive appeal (VA Form 9), the Veteran stated that he experienced urinary dysfunction, to include daytime voiding of intervals less than one hour, or awakening to void five or more times per night and had extreme urgency to urinate causing much distress and unrest. Because of his extreme urgency, the Veteran stated he continued to work with VA and Vocational Rehabilitation and Education services to assist him in finding suitable employment where he is situated near a bathroom. A June 2017 Vocational Rehabilitation and Education discontinuance summary closure statement indicates the Veteran’s post-military employment included marketing and merchandising industries and came to Vocational Rehabilitation and Education for assistance with job placement. The Veteran obtained a bachelor’s degree but was not able to obtain suitable employment. His original goal was to obtain and maintain employment in Business or Government Administration, or a closely related occupation in a career field consistent with his interest, skills, and abilities. Discontinuance was proposed because the Veteran relocated to another state and had not pursued continued Vocational Rehabilitation and Education benefits. In a March 2019 VA Form 21-4138 Statement in Support of Claim, the Veteran stated that his urinary frequency alone, regardless of the rating, was totally responsible for his inability to be gainfully employed. In this regard, he stated he had not worked since February 2014 and that his frequent urge to urinate had caused much distress and embarrassment. Additionally, he reported that his urinary frequency caused him to not be able to perform duties of jobs he once enjoyed. The Veteran further stated that the emotional and physical aspect of urinary frequency had created frustration, depression, and a lack of concentration; and that instead of maintaining concentration, his thoughts are on not having accidental urination and other related issues. He stated he would use the bathroom on average ten to twelve times a day, and other employees would notice and make negative comments. The Veteran also reported embarrassment related to urine smells, that he keeps a cup in his car and that on certain days he could not leave his apartment because he urinated every fifteen to twenty minutes. Additionally, the Veteran reported that his urination resulted in losing his concentration, that it had a significant impact on his physical and emotional well-being and that it negatively impacted his concentration and productivity. In support of his claim, the Veteran submitted a VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability in March 2019. He indicated that his prostate cancer, radiation treatments, and urinary frequency prevented him from securing or following any substantially gainful occupation. He indicated he had not worked in the last five years and that the most he ever earned in one year was $56,000.00 in 2000. The Veteran reported he worked as a buyer for a large company (acquisitions). At a May 2019 VA examination for prostate cancer, the examiner noted that the Veteran’s prostate cancer would impact his ability to work. In this regard, the examiner remarked that his prostate cancer residuals of urinary frequency or incontinence prevented him from any type of heavy physical labor and sedentary or light duties if he choose, as the Veteran’s productivity would be impacted due to time away from his work station as a result of his urinary frequency. Of record are May 2019 statements submitted by the Veteran. At those times, the Veteran stated he had not worked since January 2014 due to urinary frequency. He stated that he last worked in a history department, that he had to use the restroom from ten to twelve times a day and that the frequent urge to urinate caused him much distress and embarrassment. Additionally, he stated he made mental mistakes, that it was difficult to concentrate on his daily job duties and the thought of his attempt to not urinate in his trousers was the major reason for his lack of concentration and decline in productivity. The Veteran reported that his direct supervisor believed he could not understand basic commands, and that he required several reminders to complete tasks. The Veteran reiterated these sentiments in an October 2020 Correspondence. The Veteran’s prior employer at a history department, C.E. submitted a VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability in May 2019. At that time, C.E. indicated that the Veteran’s urinary frequency caused him great frustration, confusion, embarrassment, that had to use the bathroom a dozen times a day, and lacked focus and concentration. The other employees made comments and the Veteran had difficulty with basic instruction. C.E. noted that the Veteran’s lack of focus required him to give him instructions three to four times and he was constantly depressed and highly stressed. When he was able to focus, the Veteran was a superior employee, but those times were limited due to his concerns about urinating. C.E. indicated the Veteran worked 40 hours a week, eight hours a day, and was accommodated in his need to use the restroom as needed. He last worked in January 2014. A May 2019 VA treatment record indicates the Veteran presented with difficulty in social situations due to frequent voiding of less than one hour due to urinary frequency and was sometimes unable to reach the bathroom on time. His urinary incontinence could be associated with daytime urinary accidents on his clothing. At a May 2020 VA examination for the Veteran’s hepatitis, the examiner noted the Veteran’s hepatitis impacted his ability to work due to constant fatigue that made day to day activities difficult. In support of his claim, the Veteran submitted another VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability in September 2020. He indicated that his prostate cancer radiation, urinary frequency, and incontinence prevented him from securing or following any substantially gainful occupation. He indicated that he had not worked since February 2014, and he became too disabled to work in February 2014. He stated that his disability affected full-time employment beginning in April 2010. In August 2020, the Veteran’s claim was referred to the Director of Compensation Service for consideration of an extraschedular TDIU pursuant to 38 C.F.R. § 4.16(b) by the Board. In January 2021, the Director of Compensation Service issued an advisory opinion and denied the claim. This opinion noted that the Veteran last worked in January 2014, had a college degree and had various past work experience including working for a large company and as a clothing buyer for a department store. The advisory opinion noted that the Veteran reported that he was unable to work as a result of the residuals of prostate cancer with urinary incontinence. However, after a review of the evidence, the advisory opinion found that the records did not show an exceptional or unusual disability picture supporting an extraschedular evaluation for the residuals of prostate cancer and hepatitis. While the Veteran had limitations caused by his service-connected conditions during the period on appeal, the cumulative evidence did not support that any of his service-connected conditions, alone or in conjunction, would have precluded all forms of substantially gainful activity, including in a sedentary or semi-sedentary environment. Therefore, the advisory opinion conceded that his service-connected conditions did cause functional limitations, but determined that the preponderance of the evidence did not show that the Veteran was unable to obtain or maintain gainful employment due to her service-connected conditions. I. Analysis – Prior to January 1, 2012 As explained above, his combined rating prior to January 1, 2012 was 100 percent. The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Generally, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or a combination of disabilities pursuant to the rating schedule, there is no need, and no authority to otherwise rate that Veteran totally disabled on any other basis. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, a grant of 100 percent rating does not always render the issue of TDIU moot. Specifically, special monthly compensation (SMC) may be warranted if the Veteran has a 100 percent rating for a single disability and VA finds that TDIU is warranted based solely on the disability other than the disability that is rated on 100 percent. See Bradley v. Peake, 22 Vet. App. 280 (2008). However, per the evidence discussed below, there is no allegation that other combined disabilities render the Veteran unemployable prior to January 1, 2012. Specifically, the Veteran himself asserts that he is unemployable as a result of the combination of his service-connected disabilities as well as his nonservice-connected disabilities. Therefore, the issue of entitlement to TDIU prior to January 1, 2012 is moot as the Veteran has been in receipt of a schedular rating of 100 percent for prostate cancer residuals during the entire course of the appeal. I. Analysis – Beginning January 1, 2012 Accordingly, after a review of the medical and lay evidence presented in the light of the Veteran’s education, training, and work history, the Board finds that the overall evidence failed to support the contention that any of the service connected disabilities or a combination of the effects of those disabilities supported an exceptional situation that prevented the Veteran from obtaining and maintaining employment beginning in January 1, 2012. In this regard, the Veteran himself has asserted that he was unable to work as a result of the combination nonservice connected and service connected disabilities that include his prostate cancer residuals, hepatitis C, knee disorder, and a heart or chest condition. The May 2019 VA examination report indicates that the Veteran had significant difficulties as a result of his urinary frequency and incontinence due to his prostate cancer. The Board notes that the May 2019 VA examiner opined the Veteran was precluded from employment as a result of these symptoms. Specifically, the May 2019 VA examiner noted that the Veteran’s prostate cancer residuals of urinary frequency or incontinence prevented him from any type of heavy physical labor and sedentary or light duties, as the Veteran’s productivity would be impacted due to time away from his work station as a result of his urinary frequency. However, the Board notes that the record reflects the Veteran has consistently reported that he is unemployable as a result of the combination of his nonservice connected and service connected disabilities. Additionally, as noted in the advisory opinion from the Director of Compensation service, the Veteran’s service connected disabilities were appropriately evaluated during all periods; and none of the available evidence showed hospitalizations, surgeries, or emergency room visits due to his prostate cancer residuals or hepatitis C. Therefore, the opinion found that there was no unusual or exceptional disability pattern that had been demonstrated that would render application of the regular rating criteria as impractical and therefore, the evidence did not support the contention that the Veteran’s service connected disabilities prevented all types of gainful activity. As such, the Board finds that the evidence indicates that the Veteran has difficulty as a result of his urinary frequency, urgency, and incontinence. The Board notes that the Veteran reported he had difficulty with having to rush to the bathroom, and broken concentration and focus on work related tasks. However, there is no indication that such limitations would impact his ability to perform all gainful activity. Additionally, the Veteran was not service connected for any disorders of the heart or knee at any time. As the Veteran himself asserted, he was shown to have employment handicap due to both nonservice connected and service connected disabilities. Significantly, the Veteran reported that he was in a local band in a December 2012 Vocational Rehabilitation and Education narrative report. The Veteran indicated that he performed music with a blues band from 2010 to 2012, that he had performed on multiple records and identified himself as a professional musician in an undated resume submitted with to Vocational Rehabilitation and Education. In addition, the Veteran consistently reported that he was in a band in the clinical records to include reporting that he played the saxophone, flute and keyboard in a June 2020 VA treatment note. He also reported that he played in the band three to four times per week in an October 2019 VA treatment note. The Veteran has not explained how he is able to perform with a band multiple times per week despite his functional impairments but is also unable to obtain and maintain gainful employment as a result of the same functional impairments. The Board notes the arguments of the Veteran and his representative that entitlement to an extraschedular TDIU is warranted because the Veteran’s prostate cancer residuals of urinary frequency and/or incontinence rendered him essentially unable to work from January 2014. However, as discussed above, the Veteran himself has indicated he had difficulty working due to both nonservice connected and service-connected disabilities. Moreover, as previously discussed, none of the available evidence showed hospitalizations, surgeries, or emergency room visits due to his prostate cancer residuals or hepatitis C. This argument is therefore without merit. The Board also acknowledges the Veteran’s numerous and varying statements regarding his unemployability. In this regard, the Veteran has provided many contradicting accounts of his physical disabilities, and even the dates of his unemployment. Specifically, the Veteran first asserted that his prostate cancer residuals, to include urinary frequency and urgency resulted in embarrassment, difficulty with focus and concentration, and a negative impact on his overall productivity, resulted in being unable to work. However, the Veteran himself asserted in a September 2010 letter to his former employer at the national department store that he resigned from his job mostly due to a lack of training and support at work, and as well as exacerbation of his nonservice connected knee. Then, the Veteran indicated that his hepatis C also impacted his ability to work due to the physical impact and the medications he took to treat his hepatitis. Finally, the Veteran also seemed to assert that he experienced heart attacks, left arm numbness, and extreme chest pressure, in combination with his prostate cancer residuals that rendered him unemployable. Similarly, the Veteran’s accounts of his last date of employability have been inconsistent. Generally, the Veteran asserts he has not been able to work in either January 2014 or February 2014. However, the Veteran has also indicated that he was unable to work beginning in 2011. See VA Form 21-4138 Statement in Support of Claim, February 3, 2012. Then, the Veteran indicated he could not work beginning sometime in 2013. See Correspondence, August 11, 2020 (indicating the Veteran had not worked in seven years). The Board accepts that the Veteran is competent to report his physical symptoms, to include urinary frequency and/or incontinence. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994). However, to the extent that he suggests that the combination of only his service connected disabilities render him unable to obtain or maintain substantially gainful employment, the Board finds that he is not credible. The medical evidence indicates the Veteran has, on occasion, denied having any urinary frequency, urgency, or incontinence; and the Veteran has asserted conflicting accounts of the reasons for his unemployability as well as the onset of such. Essentially, the Veteran’s own statements are incongruous with his service-connected disabilities rendering him unable to obtain and maintain substantially gainful employment. Consequently, the Board finds that the Veteran’s statements have diminished probative value. The Board also acknowledges the Veteran’s representative argument that the evidence establishes the Veteran is unable to obtain or maintain substantial gainful employment, that there is no medical evidence to refute this, and that the only evidence in contrary is the Executive Director of Compensation service determination that the overall evidence fails to support a grant of a TDIU. See Appellate Brief, March 3, 2021. The question of employability is a legal one, not a medical one. However, as discussed above, there is no indication from the record that the Veteran was precluded from employment solely as a result of his service connected disabilities. In fact, as noted above, the evidence of record to include the Veteran’s own statements indicates that the Veteran was unable to work as a result of both nonservice connected disabilities and his service connected disabilities. While the fact that nonservice connected disabilities also impacted the Veteran’s ability to work does not preclude a finding that the Veteran would have also been unable to work solely as the result of a service connected disability, that is not the case for this Veteran. It cannot be determined with any certainty that the Veteran would not have been able to successfully continue working if he was only impaired by his service connected disabilities. Instead, the evidence consistently shows the Veteran was unable to obtain and maintain gainful employment due to his prostate cancer residuals, hepatitis C, heart disorder, and knee disorder. This argument is therefore without merit. Ultimately, the question is whether the Veteran is capable of performing the physical and mental acts required by employment. Here, the evidence is not sufficient to show that the Veteran could not have performed the physical and mental acts required by employment any time during the period on appeal. The Board has considered the combined effects of the service connected disabilities. The evidence related to his prostate cancer residuals and hepatitis C shows an impact on employability in that the Veteran reported frequent bathroom breaks and fatigue. However, the most probative evidence shows the Veteran’s unemployability resulted from a combination of his prostate cancer and hepatitis as well as nonservice connected knee and heart disorders. Moreover, the Veteran himself reported that he was a professional musician and that he performed with a local band multiple times per week. Consequently, the preponderance of the evidence is against a finding of unemployability and the claim for a TDIU on an extraschedular basis must be denied. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) for the appeal period is not warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mariah N. Sim, 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.