Citation Nr: 21023901 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 12-33 515A DATE: April 21, 2021 ORDER From February 11, 2010 to February 23, 2011, an increased initial disability rating of 20 percent (but not higher) for service-connected degenerative arthritis and intervertebral disc syndrome (IVDS) of the lumbar spine (back condition) is granted. From February 24, 2011 an increased disability rating of 40 percent (but not higher) for a service-connected back condition is granted. From February 11, 2010 to February 23, 2011, an increased initial disability rating of 20 percent (but not higher) for service-connected degenerative arthritis and IVDS of the cervical spine (neck condition) is granted. From February 24, 2011 an increased disability rating of 30 percent (but not higher) for a service-connected neck condition is granted. An earlier effective date of February 11, 2010 for the award of a total disability rating based upon individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. As to the period from February 11, 2010 to February 23, 2011, the Board will infer that the missing measurements from the February 2010 examination would have supported an initial 20 percent disability rating for the Veteran’s back condition. 2. As to the period from February 24, 2011 the Board will infer that the missing measurements from the February 2011 and June 2016 VA examinations would have supported a 40 percent disability rating for the Veteran’s back condition. 3. As to the period from February 11, 2010 to February 23, 2011, the Board will infer that the missing measurements from the February 2010 examination would have supported an initial 20 percent disability rating for the Veteran’s neck condition. 4. As to the period from February 24, 2011, the Board will infer that the missing measurements from the February 2011 and June 2016 VA examinations would have supported a 30 percent disability rating for the Veteran’s neck condition. 5. Based on a letter from the Social Security Administration and the Veteran’s own statements, the Board finds that the Veteran is entitled to a TDIU as of February 11, 2010. CONCLUSIONS OF LAW 1. From February 11, 2010 to February 23, 2011, the criteria have been met for an increased initial disability rating of 20 percent (but not higher) for a service-connected back condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, DC 5235-5243. 2. From February 24, 2011, the criteria have been met for a disability rating of 40 percent (but not higher) for a service-connected back condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, DC 5235-5243. 3. From February 11, 2010 to February 23, 2011, the criteria have been met for an increased initial disability rating of 20 percent (but not higher) for a service-connected neck condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, DC 5235-5243. 4. From February 24, 2011, the criteria have been met for a disability rating of 30 percent (but not higher) for a service-connected neck condition. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40-4.46, 4.71a, DC 5235-5243. 5. The criteria for an effective date prior of February 11, 2010, for the award of a TDIU rating have been met. 38 U.S.C. §§ 5110, 5107, 5109A, 7105 (2002, 2012); 38 C.F.R. §§ 3.105, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from May 2000 to February 2010. These matters are before the Board of Veteran’s Appeals (Board) on appeal from an August 2010 rating decision of a Department of Veteran Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board for additional development in December 2015, July 2017, and August 2020. Increased Rating Increased ratings for degenerative arthritis of the spine. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings.” Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). The Veteran’s service-connected back and neck conditions are currently rated under Diagnostic Code 5235-5243. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed. A 10 percent rating 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 abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. Id. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, for muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Id. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or, for favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Any associated objective neurologic abnormalities are to be evaluated separately, under an appropriate diagnostic code. Id. at Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. Id. at Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. Id. All measured ranges of motion are to be rounded to the nearest five degrees. Id. at Note (4). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Evaluations for IVDS are to be performed either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, Note 6. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent disability rating is assigned for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. Id. A 60 percent disability rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Id. 1. From February 11, 2010 to February 23, 2011, an increased initial disability rating of 20 percent (but not higher) for a service-connected back condition is granted. Factual Background In February 2010, the Veteran attended a private medical examination during which he reported stiffness, fatigue, decreased motion, paresthesia and numbness due to his back condition. The Veteran reported that he experienced moderate pain levels but no spasms. The Veteran also reported experiencing flare-ups of the back which causes functional impairment. X-ray reports of the back showed joint narrowing and very minimal change, minimal scoliosis with an angle of curvature of less than 10 degrees and spina bifida occula involving S1 with no acute abnormality. During range of motion (ROM) testing, the Veteran displayed forward flexion of 0-90 degrees with pain at 90 degrees and a combined ROM of 240. The examiner indicated that repetitive ROM was possible and there was no loss of additional ROM. Analysis The Board acknowledges that while the February 2010 examiner indicated that the Veteran’s flare-ups cause functional loss, they failed to describe the functional loss in terms of ROM. Additionally, the examiner did not provide specific values for passive ROM testing, weight-bearing or non-weight-bearing. See Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016); Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). Accordingly, the Board cannot assign this opinion significant probative value. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The Board elects to not remand this matter for a retrospective opinion because of the impracticality of obtaining such evidence as might be needed to retrospectively address the deficiencies of the February 2010 examination; remanding these issues can often lead to a cycle of non-compliant examination reports and subsequent remands that can delay the claim for years without an effective resolution. The Board will not place the burden on the Veteran for the fact that the examiner did not obtain all the necessary information at the time of the examination. Rather, the Board will infer that any missing information from the February 2010 examination would support the next highest rating (20 percent) for this portion of the period on appeal. However, the Board also finds that a still higher (40 percent) disability rating is not warranted. There is no probative evidence of record that the Veteran’s forward flexion was limited to 30 degrees or less or that there was favorable ankylosis of the entire thoracolumbar spine during this portion of the period on appeal. There is no evidence of record that the Veteran’s spine was anklylosed at any level, and as noted above, range of motion testing did not show limitation to forward flexion even approaching 30 degrees or less. There is also no evidence during this specific period on appeal that the Veteran was incapacitated due to his IVDS of the thoracolumbar spine. As such, a 40 percent rating is not warranted under DC 5243. Accordingly, from February 11, 2010 to February 23, 2011, an increased initial disability rating of 20 percent (but not higher) for a service-connected back condition is granted. 2. From February 24, 2011 an increased disability rating of 40 percent (but not higher) for a service-connected back condition is granted. Factual Background The Veteran provided a January 2011 statement during which he explained that he is incapable of doing most activities due to severe back pain. The Veteran reported that he was incapable of getting out of bed due to the tense and throbbing pain in his back and legs. At a February 2011 VA examination, the conducting physician indicated that the Veteran’s lower back has a constant level 5 pain which flares up to level 10 anywhere from every other week to 3 times a week. The Veteran explained that this pain is incapacitating and can last for up to a day. There was no ankylosis of the spine. During ROM testing, the Veteran displayed forward flexion of 0-50 degrees with pain at 50 degrees and a combined ROM of 130 degrees. The conducting physician explained that there is no loss of motion or increased pain with repetitive testing of the back. At a June 2016 VA examination, the conducting physician indicated that the Veteran had normal ROM of the back. The physician explained that there was no evidence of pain with weight bearing, that the Veteran was able to perform repetitive-use testing with at least three repetitions without additional ROM loss. The physician indicated that the Veteran was not being examined immediately after repetitive use over time and that the examination is neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The physician indicated that the Veteran does not report flare ups. At a February 2021 VA examination, the conducting physician explained that the Veteran has no ankylosis of the spine. The physician also indicated that the Veteran did not have any incapacitating episodes which resulted in bedrest over the prior 12 months. Analysis The Board acknowledges that while the February 2011 examiner indicated that the Veteran’s flare-ups caused incapacitating pain, they failed to describe any functional loss in terms of ROM. Additionally, the examiner did not provide specific values for passive ROM testing, weight-bearing or non-weight-bearing. See Correia supra; Sharp supra; DeLuca supra. Accordingly, the Board cannot assign this assessment significant probative value. See Reonal supra. Additionally, the June 2016 VA physician indicated that the Veteran does not report flare-ups of the back and that he has normal ROM of the back. This information is inconsistent with the Veteran’s January 2011 statement and the results of the February 2011 examination which indicate that the Veteran experiences flare-ups of the back and he does not have normal ROM of the back, which inconsistency tends to limit the probative value of the latter examination. See Reonal supra. For the same reasons explained in the previous section, the Board will not remand this matter for a retrospective opinion to address the deficiencies of the February 2011 and June 2016 VA examinations. Rather, the Board will infer that any missing information from the February 2011 and June 2016 VA examination reports would support the next highest rating (40 percent) for this portion of the period on appeal. However, the Board also finds that a still higher, 50 percent disability rating is not warranted. There is no probative evidence of record that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine during this portion of the period on appeal. Additionally, while the Veteran indicated that his IVDS of the thoracolumbar spine would cause him to be bedridden, there is no evidence that these incapacitating episodes had a total duration even approaching 6 weeks during the relevant 12-month period. As such, a 60 percent rating is not warranted under DC 5243. Accordingly, from February 24, 2011 an increased disability rating of 40 percent (but not higher) for a service-connected back condition is granted. 3. From February 11, 2010 to February 23, 2011, an increased initial disability rating of 20 percent (but not higher) for a service-connected neck condition is granted. Factual Background In February 2010, the Veteran attended a private medical examination during which he reported stiffness, fatigue, decreased motion, paresthesia and numbness due to his neck condition. The Veteran reported that he experiences moderate pain levels but no spasms. The Veteran also reported experiencing flare-ups of the neck which impairs ROM. During ROM testing of the neck, the Veteran displayed forward flexion of 0-45 degrees and a combined ROM of 340, with no ROM lost on repeated bouts of testing. Analysis The Board acknowledges that the February 2010 the examiner did not provide specific values for ROM testing during flare-ups or passive ROM testing, weight-bearing or non-weight-bearing. See Correia supra; McDonald supra; Sharp supra; DeLuca supra, Reonal supra. For the same reasons explained in the previous section, the Board will not remand this matter for a retrospective opinion to address the deficiencies of the February 2010 examination. Rather, the Board will infer that any missing information from the February 2010 examination report would support the next highest rating (20 percent) for this portion of the period on appeal. However, the Board also finds that a still higher (30 percent) disability rating is not warranted. There is no probative evidence of record that the Veteran’s forward flexion of the neck was limited to a degree approaching 15 degrees or less under any circumstances, including flareups or repeated use of the joint over time, or that the cervical spine was ankylosed at any level. There is also no evidence during this specific period on appeal that the Veteran experienced incapacitating episodes of IVDS of the cervical spine. As such, a 40 percent rating is not warranted under DC 5243. Accordingly, from February 11, 2010 to February 23, 2011, an increased initial disability rating of 20 percent (but not higher) for service-connected neck condition is granted. 4. From February 24, 2011, an increased disability rating of 30 percent (but not higher) for a service-connected neck condition is granted. Factual Background The Veteran provided a January 2011 statement during which he explained that he had severe pain in his neck. The Veteran also explained that he had to keep his neck very still due to the pain because if he moved too quickly, he experienced a sharp, shooting pain through his shoulders, neck, chest and arms. At a February 2011 VA examination, the conducting physician indicated that the Veteran’s neck has a constant level 6 out of 10 pain with stiffness, weakness, decreased motion, and fatigue. The Veteran explained that his neck flares up to level 9 out of 10 around 2-3 times a week which can prevent him from getting out of bed and last all day. There was no evidence of ankylosis of the cervical spine. During ROM testing, the Veteran displayed forward flexion of 0-45 degrees with pain at 25 degrees and a combined ROM of 220 degrees. The conducting physician explained that there is no loss of motion or increased pain with repetitive testing of the neck. The conducting physician explained that there is no loss of motion or increased pain with repetitive testing of the neck. At a June 2016 VA examination, the conducting physician indicated that the Veteran had normal ROM of the neck; pain was noted on examination but did not result in functional loss. The physician explained that there was no evidence of pain with weight bearing, that the Veteran was able to perform repetitive-use testing with at least three repetitions without additional ROM loss. The physician indicated that the Veteran was not being examined immediately after repetitive use over time and that the examination is neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss with repetitive use over time. The physician indicated that the Veteran does not report flare ups of the neck. At a February 2021 VA examination, the conducting physician explained that the Veteran has no ankylosis of the cervical spine. The physician also indicated that the Veteran has not had any incapacitating episodes which required bedrest in the past 12 months due to his IVDS. Analysis The Board acknowledges that while the February 2011 examiner indicated that the Veteran’s flare-ups of the neck causes incapacitating pain, they failed to describe any functional loss in terms of ROM. Additionally, the examiner did not provide specific values for passive ROM testing, weight-bearing or non-weight-bearing. See Correia supra; Sharp supra; DeLuca supra. Accordingly, the Board cannot assign this opinion significant probative value. See Reonal supra. Additionally, the June 2016 VA physician indicated that the Veteran does not report flare-ups of the neck and that he has normal ROM of the neck. This information is inconsistent with the Veteran’s January 2011 statement and the results of the February 2011 examination which indicate that the Veteran did in fact experience flare-ups of the neck and did not have normal ROM of the neck. For the same reasons explained in the previous section, the Board will not remand this matter for a retrospective opinion to address the deficiencies of the February 2011 and June 2016 VA examinations. Rather, the Board will infer that any missing information from the February 2011 and June 2016 VA examination reports would support the next highest rating (30 percent) for this portion of the period on appeal. However, the Board also finds that a still higher, 40 percent disability rating is not warranted, as there remains no probative evidence of ankylosis at any level of the spine. Additionally, while the Veteran indicated that his IVDS of the cervical spine would cause him to be bedridden, there is no evidence that these incapacitating episodes had a total duration approaching 6 weeks during a relevant 12 month period, nor that such bedrest was prescribed or recommended by a medical provider. As such, a 60 percent rating is not warranted under DC 5243. Accordingly, from February 24, 2011, an increased disability rating of 30 percent (but not higher) for a service-connected neck condition is granted. 5. An earlier effective date of February 11, 2010 for the award of a TDIU is granted. Legal Criteria It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. In determining whether unemployability exists, consideration may be given to the veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16 (a). Pursuant to 38 C.F.R. § 4.16 (b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16 (a), such case shall be submitted for extraschedular consideration in accordance with 38 C.F.R. § 3.321. A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. See Hurd v. West, 13 Vet. App. 449 (2000). According to 38 C.F.R. § 3.400 (o)(2), the effective date of an increase in compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if the claim is received within one year from such date; otherwise, the date of receipt of the claim. See 38 C.F.R. § 3.400 (o)(2); see also Harper v. Brown, 10 Vet. App. 125, 126-27 (1997). Procedural History By way of background, on appeal is an August 2010 rating decision, which granted service connection for a back condition and assigned a 10 percent rating effective February 11, 2010. In September 2010, VA received a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, which contended that a TDIU was warranted based, at least in part, on the back condition. An October 2012 rating decision granted a TDIU effective May 25, 2010. Prior Board decisions did not adjudicate entitlement to a TDIU as of February 11, 2010, and prior to May 25, 2010. A request for a TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather, it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice, 22 Vet. App. at 453-54. Once the issue of entitlement to a TDIU is raised, it is “part of the claim for benefits for the underlying disability.” Id. Once entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the AOJ for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, when the AOJ fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved is still on appeal. The AOJ’s grant of a TDIU for only a portion of the period on appeal does not bifurcate the issue of entitlement to a TDIU from the underlying increased rating claim. As Payne made clear, the holding in Harper applies regardless of whether the partial grant of a TDIU occurs before or after the Board’s initial adjudication of the underlying increased rating claim. Here, while the appeal for the increased initial rating for the underlying disability was pending, the Veteran contended that a TDIU was warranted based on the back condition; therefore, the appeal period for the claim for a TDIU dates back to February 11, 2010, the effective date of the grant of service connection for the back condition. See Rice, 22 Vet. App. at 453-54; Harper, 30 Vet. App. at 362 (The notice of disagreement “placed the issue of the appropriate disability evaluation into appellate status and, therefore, because he was not awarded the highest rating possible, including TDIU, for the entire appeal period, the issue of entitlement to TDIU [prior to the effective date of the partial grant] remained on appeal.”); see also 38 C.F.R. § 3.400(b)(2). The October 2012 rating decision awarded a TDIU effective May 25, 2010; however, the period on appeal begins February 11, 2010. Therefore, the issue of entitlement to a TDIU remains on appeal as part and parcel of the appeal for an increased rating for the back because it was not granted in full. Accordingly, the Board has jurisdiction over the issue of entitlement to a TDIU as of February 11, 2010, and prior to May 25, 2010. Factual Background The Veteran submitted a June 2011 Social Security Administration (SSA) letter which indicated that he became too disabled to work on December 22, 2009. In the Veteran’s claim for a TDIU, he noted that he was employed at U-Haul working in dispatch and receiving from March 15, 2010 until May 15, 2010. The Veteran reported that he earned $800 on a monthly basis at this position. The Veteran indicated that he left this position due to the pain in his knees and back from the constant standing and running, the stress of dealing with customers and sounds that would trigger flashbacks. Prior to working for U-Haul, the Veteran indicated that he medically retired from the army due to his disabilities. Analysis The Board finds that as of February 11, 2010, the Veteran was rated at 70% disabling for his service-connected mood disorder and thus he meets the schedular criteria for a TDIU rating from the start of the appeal period. What remains for consideration is whether the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities prior to May 25, 2010. The Board assigns great probative weight to the SSA letter submitted by the Veteran which indicates that he became disabled as of December 22, 2009. Although the evidence indicates that the Veteran was employed at U-Haul from March 15, 2010 to May 15, 2010, the Veteran was only earning $800 monthly and was working only part-time. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. Ray v. Wilkie, No. 17-0781, March 14, 2019. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. Therefore, the Veteran’s employment at U-Haul can only be considered marginal employment. Accordingly, the Board finds that the Veteran is entitled to a TDIU award as of February 11, 2010, the date the Veteran was granted service-connection for his back condition. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alexander Bahus 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.