Citation Nr: 21024695 Decision Date: 04/23/21 Archive Date: 04/23/21 DOCKET NO. 15-44 736 DATE: April 23, 2021 ORDER Entitlement to a rating of 20 percent, but no higher, for instability of the left knee, prior to May 29, 2014 is granted. Entitlement to an initial rating in excess of 20 percent for degenerative arthritis of the lumbar spine is denied. FINDINGS OF FACT 1. Giving full consideration to the Veteran's lay statements of instability, and the objective findings demonstrated, the Veteran's left knee instability was manifested by moderate recurrent subluxation or lateral instability during the period prior to May 29, 2014; it was not manifested by severe instability. 2. Throughout the appeal period, the Veteran's lumbar spine degenerative arthritis did not manifest as forward flexion of the thoracolumbar spine greater than 30 degrees even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, swelling, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups without ankylosis, intervertebral disc syndrome, or bowel or bladder impairment. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for a rating of 20 percent, but no higher, for left knee instability were met prior to May 29, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5257. 2. The criteria for an initial rating in excess of 20 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1—4.14, 4.40, 4.45, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1952 to February 1954. These matters come before the Board of Veterans' Appeals (hereinafter Board) on appeal from rating decisions in issued in March 2013 and May 2017. The Veteran perfected timely appeals to those rating decisions. In a February 2020 decision, the Board denied the claim for a rating in excess of 10 percent for residual instability of the left knee prior to May 29, 2014. The Veteran subsequently appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In a December 2020 Order, the Court granted a Partial Joint Motion for Remand (PJMR) which partially vacated and remanded the Board's decision, specifically, the denial of a rating in excess of 10 percent for residual instability of the left knee prior to May 29, 2014. The case was remanded the Board for readjudication and issuance of a new decision. In July 2020, the Board remanded the issue of increased rating for the lumbar spine to the agency of original jurisdiction (AOJ) for further evidentiary development. Specifically, the Board instructed that a new VA examination be conducted to determine the current nature and severity of the Veteran’s degenerative arthritis of the spine. Such an examination was conducted in December 2020. Following the requested development, a supplemental statement of the case (SSOC) was issued in January 2021. The Board therefore determines that there has been substantial compliance with its previous remand. A January 2021 rating decision granted the Veteran's claims for service connection for bilateral hearing loss, tinnitus, left lower extremity radiculopathy of the sciatic, femoral and ilio-inguinal nerves and right lower extremity radiculopathy of the sciatic, femoral and ilio-inguinal nerves. An initial rating was assigned for each disability. As this decision represents a full grant of the benefits sought with respect to this claims for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods based on the facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. For disabilities evaluated on the basis of limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The court has instructed that in applying these regulations VA should obtain examinations in which the examiner determined whether the disability was manifested by weakened movement, excess fatigability, incoordination, or pain. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board notes that effective February 7, 2021, the criteria for schedule of ratings for the musculoskeletal system was revised. See 86 Fed. Reg. 8142 (Feb. 4, 2021) (codified at 38 C.F.R. pt. 4). In the instant case, the claims file is absent any medical evidence submitted or associated with the claims file subsequent to the revised rating effective date of February 7, 2021. While the diagnostic criteria for knee instability under diagnostic code 5257 were revised, the instant case involves consideration of an instability rating for the appeal period prior to May 29, 2014 only. Therefore, the February 2021 musculoskeletal criteria do not apply to the Veteran’s claim on appeal; and the appropriate criteria is discussed below. The Board also notes that the February 7, 2021 musculoskeletal amendments presented no changes to the rating criteria for Diagnostic Code 5242. In other words, Diagnostic Code 5242 is the same both prior to and after February 7, 2021. Compare 38 C.F.R. § 4.71a (December 29, 2020) with 38 C.F.R. § 4.71a (February 7, 2021). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran’s service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating due to individual unemployability (TDIU) is part of a rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record. In this case, the Veteran’s reported that he had retired in the mid-1990s and that his past work experience included work in the sheet-metal business. The record does not reflect, and the Veteran does not allege, that he is unemployable due to instability of the left knee or degenerative arthritis of the spine. Therefore, the Board finds that a TDIU is not raised by the Veteran or reasonably raised by the record in connection with his increased rating claims decided herein and, consequently, no further consideration of such is necessary at this time. 1. Entitlement to a rating in excess of 10 percent for instability of the left knee for the appeal period prior to May 29, 2014 The Veteran is seeking entitlement to a rating in excess of 10 percent for instability of the right knee. The Veteran contends that he uses a cane, knee braces, and has to wear certain shoes to alleviate his right knee pain and to increase stability, The Veteran's left knee instability has been assigned a rating of 10 percent under Diagnostic Code 5257. Diagnostic Code 5257 provides for a 10 percent rating for slight recurrent subluxation or lateral instability. A 20 percent rating is warranted for moderate subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Pursuant to 38 C.F.R. §§ 4.40 and 4.45, pain is inapplicable to ratings under Diagnostic Code 5257 because it is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Words such as “severe,” “moderate,” and “mild” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. The Veteran’s claim for an increased rating for the left knee was received in January 2012. Submitted in support of the claim were private treatment reports from Dr. J.H., dated from January to March 2012, reflecting treatment for the knees. The records reflect that the Veteran began receiving Orthovisc injections into the left knee in March 2012. Also submitted was the report of an X-ray study of the knees, dated in January 2012, which revealed degenerative osteoarthritis in both knees with narrowing of the left lateral joint space compartment and patellofemoral compartment; no evidence of suprapatellar effusion was noted. The Veteran was afforded a VA examination in March 2012. At that time, the Veteran reported that his left knee was unstable and caused him pain. He indicated that he uses a cane for ambulation due to pain in his left knee. It was noted that the Veteran experienced interference with sitting, standing and weight bearing. Muscle strength testing was normal. Joint stability tests were normal. The examiner noted that the Veteran had frequent episodes of joint pain. The examiner also noted that the Veteran required constant use of a cane and occasional use of the brace. The Veteran reported pain with climbing and descending stairs and ladders, prolonged walking, kneeling, jumping, and squatting. Submitted in support of the claim was a statement from the Veteran’s spouse, dated in March 2012, indicating that the Veteran must wear a metal brace to help stabilize his left knee. She noted that the Veteran’s knee tended to “overtire” when he stands for a prolonged period of time or performs different types of activities. The Veteran’s wife also reported that he always has to be careful not to fall; in fact, she noted that there are many things that he is unable to do as a result of his left knee disorder. Additional private treatment reports were received showing that the Veteran was seen in April 2012 for evaluation of his left knee. At that time, the Veteran indicated that his knee had gotten worse. A December 2020 JMPR found that the Board erred by not providing an adequate statement of reasons or bases for the decision to deny a rating above 10 percent for instability of the left knee because it failed to properly consider the Veteran's statements which suggests that his knee instability is more than slight. Upon review of the record, the Board finds, with resolution of reasonable doubt in his favor, that a 20 percent rating under Diagnostic Code 5257 for moderate recurrent subluxation or lateral instability is warranted for the Veteran's left knee disability for the appeal period prior to May 29, 2014. During the course of this appeal, the Veteran has consistently complained of having to wear a brace and use a cane to maintain stability. In addition, during the March 2012 VA examination, the examiner noted that the Veteran required constant use of a cane and occasional use of the brace. The Veteran’s wife also stated that the Veteran had to wear a knee brace for years. The Board finds that by resolving all doubt in the Veteran's favor, he meets the criteria for a 20 percent rating pursuant to Diagnostic Code 5257, despite the minimal clinical confirmation of instability. The Board, however, does not find that a rating higher than 20 percent is warranted under Diagnostic Code 5257. Objective examination conducted in March 2012 found the joint stability tests to be normal and found that there was no evidence or history of recurrent patellar subluxation or dislocation. The Veteran has not alleged, and the record does not establish, recurrent subluxation. Therefore, a rating in excess of 20 percent for the appeal period prior to May 29, 2014 is not warranted. In reaching its conclusions, the Board acknowledges the Veteran's sincere belief that his left knee instability is more severe than as reflected by the currently assigned disability rating. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his reports regarding the severity of his left knee instability. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected left knee instability; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating for such disability is not warranted. Furthermore, the Veteran has not raised any other issues, nor has any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). Thus, the Board finds a rating of 20 percent, but no higher, is warranted for left knee instability for the appeal period prior to May 29, 2014. However, insofar as the Board has denied higher or separate ratings, the preponderance of the evidence is against such aspects of the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. 2. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine The Veteran essentially contends that his lumbar spine disability is more disabling than reflected by the rating currently assigned. The Veteran has been assigned a 20 percent rating for his degenerative arthritis of the lumbar spine under Diagnostic Code 5242. Diagnostic Code 5242 refers the rater to the General Rating Formula for Diseases and Injuries of the Spine, which provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a 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 rating requires evidence of forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 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. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. at Note (2). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire 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). Alternatively, the Veteran's lumbar spine degenerative arthritis may be evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes, which assigns a 10 percent rating with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating may be assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating may be assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1). The Veteran’s claim for service connection for a low back disorder was received in April 2017. In conjunction with his claim, the Veteran was afforded a VA examination in May 2017. At that time, the Veteran reported that his low back pain began about 11 to 12 years ago with no clear-cut precipitating event, and it has been gradually progressive over the last several years. It was noted that his back pain is highly related to activity and can be almost negligible if his behavior with respect to his back is perfect, or can be a major problem is he is performing significant amounts of activity that he should probably not be doing. To keep his back pain at an acceptable level where it does not significantly interfere with his quality of life, the veteran must significantly restrict his activities and hire assistance for any physically demanding activities. Forward flexion was to 65 degrees, extension was to 15 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 15 degrees, and lateral rotation was to 15 degrees, bilaterally. The May 2017 VA examiner stated that the decreased range of motion observed is probably not that abnormal for age, but it is still almost certainly on the basis of degenerative arthritis and results in functional impairment. The examiner further stated that the Veteran must compensate for his decreased lumbar range of motion by increased motion of his feet and other body parts, and it markedly interferes with his ability to perform activities such as getting up from the floor, where he generally must climb up a wall or piece of furniture. Pain was noted on examination and caused functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions; there was no additional loss of function after three repetitions. The examiner noted that many painful musculoskeletal conditions of the low back do not produce a decrease in range of motion. Muscle strength was normal. No atrophy was noted. No ankylosis was noted. The examiner indicated that the Veteran does not have IVDS of the lumbar spine. The examiner noted that there was objective evidence of pain when the back is used in non-weight bearing. The pertinent diagnosis was lumbosacral arthritis with moderately severe degenerative changes and mild scoliosis. The examiner indicated that the veteran is severely limited in any act to duty which involves bending, stooping, twisting, or lifting. If he is on his hands and knees, he generally must crawl up a piece of furniture or some other support to regain the standing position since his overall loss of spinal and lower extremity range of motion prevents him from placing his center of gravity within the base of support of his feet. The Veteran was afforded a recent VA examination in December 2020, at which time he reported that he experiences pain that causes him to fall. The Veteran indicated that he uses a cane to prevent falls; he uses Aleve daily twice a week, ice pack and hot packs two times a week. The Veteran indicated that hot showers and home massage also help. He denied any flareups. The Veteran reported functional impairment when he is mopping or sweeping; he is unable to bend without a cane. Range of motion revealed forward flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, and lateral rotation to 20 degrees, bilaterally. The Veteran is unable to pick up anything from the floor. The examiner indicated that pain was noted on examination and caused functional loss. There was evidence of pain with weight bearing. The examiner indicated that the Veteran had pain with light palpation of the thoracic, lumbar and coccyx spine; no edema or ecchymosis was noted. After repetitive use testing, forward flexion was to 70 degrees, extension to 10 degrees, lateral flexion was to 20 degrees, bilaterally, and lateral rotation was to 20 degrees, bilaterally. The Veteran denied any flareups. The Veteran did not have any guarding or muscle spasm of the thoracolumbar spine. There was no ankylosis of the spine. The examiner indicated that the Veteran did not have any other neurological abnormalities or findings related to the thoracolumbar spine disability. The Veteran does not have IVDS of the lumbar spine. The examiner noted that passive range of motion was not performed as it is not feasible to do this in a safe and reasonable manner. The examiner stated that there was objective evidence of pain when the spine was in a non-weight bearing position. Opposing joint assessment was not applicable because the spine does not have an opposing joint. Based on the foregoing evidence, the Board finds that a rating higher than 20 percent for the lumbar spine degenerative arthritis is not warranted in this case. In this regard, the record fails to show that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, even in contemplation of functional loss due to symptoms such as pain, fatigue, weakness, lack of endurance, or incoordination, or as a result of repetitive motion and/or flare-ups. A May 2017 VA examination found forward flexion to be 65 degrees, at worst. A December 2020 VA examiner reported that the Veteran's flexion was limited to 70 degrees; after repetitive use testing, it was noted that forward flexion was to 70 degrees. The examiner noted that the Veteran did have pain on movement, less movement than normal, weakened movement and excess fatigability; and, following repetitive use testing, forward flexion was reported to be 60 degrees. Here, the VA treatment records and VA examinations do not reveal additional functional impairment, including additional limitation of motion, on account of pain, weakness, etc, that is not already contemplated by the assigned 20 percent rating. 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, supra. Thus, a higher rating is not warranted for the Veteran's lumbosacral strain even in consideration of painful motion and other factors such as weakness, fatigability, lack of endurance, and incoordination. Moreover, there was no ankylosis. Therefore, a rating in excess of 20 percent is not warranted. Furthermore, as the evidence fails to show that the Veteran has intervertebral disc syndrome with incapacitating episodes resulting in bed rest ordered by a physician at any point pertinent to the appeals period, a higher or separate rating is not warranted under the intervertebral disc syndrome Rating Formula. In addition to considering the orthopedic manifestations of a back disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. However, the Veteran has not alleged, and the evidence does not show, that he has bladder impairment or bowel impairment. Moreover, the Veteran is already in receipt of separate ratings for right and left lower extremity radiculopathy. Therefore, the Board finds that, at no time during the appeal period, has the Veteran's service-connected lumbar spine degenerative arthritis resulted in neurological impairment of the bowel or bladder warranting an additional separate rating. Finally, the Board has considered the effects of repeated use over time and flare-ups along with the adequacy of the VA examinations in light of the Court’s holdings in Correia and Sharp. See Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Pain was noted on examination in the May 2017 and December 2020 VA examination reports. The effect of pain on range of motion is described above. Regarding repeated use over time, the Board notes that the May 2017 and December 2020 VA examiners conducted repetitive-use testing and found that there was some further limitation of motion. Regarding flare-ups, the Board notes that the Veteran denied such flare-ups in the May 2017 and December 2020 VA examinations. The December 2020 VA examination reflected measurements for active and passive range of motion as well as range of motion testing in weight-bearing and nonweight-bearing. As the Veteran’s spine does not have an opposing joint, it is not possible to measure range of motion in the undamaged joint. Therefore, the examinations of records are adequate for rating purposes. In reaching its conclusions, the Board acknowledges the Veteran's sincere belief that his lumbar spine degenerative arthritis is more severe than as reflected by the currently assigned disability rating. The Board must consider the entire evidence of record when analyzing the criteria laid out in the rating schedule. While the Board recognizes that the Veteran is competent to provide evidence regarding his symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the rating criteria. See Woehlaert v. Nicholson, supra. Ultimately, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his reports regarding the severity of his lumbar strain degenerative arthritis. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected lumbar spine degenerative arthritis; however, the Board finds that his symptomatology has been stable throughout the period on appeal. Therefore, assigning a staged rating for such disability is not warranted. Furthermore, the Veteran has not raised any other issues, nor has any other issues been reasonably raised by the record, with regard to the increased rating claim adjudicated herein. See Doucette v. Shulkin, supra. In reaching the foregoing determinations, the Board has applied the benefit of the doubt doctrine and resolved all doubt in the Veteran's favor. However, insofar as the Board has denied higher or separate ratings, the preponderance of the evidence is against such aspects of the claim. Therefore, the benefit of the doubt doctrine is not applicable and the increased rating claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Suzie S. Gaston, 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.