Citation Nr: 21024874 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 19-14 975 DATE: April 26, 2021 ORDER The application to reopen the previously denied claim of service connection for right knee disability is granted. The application to reopen the previously denied claim of service connection for left knee disability is granted. Service connection for osteoarthritis of right knee is granted. Service connection for osteoarthritis of left knee is granted. Service connection for chronic kidney disease, to include as secondary to service-connected knee disabilities, is granted. Reduction of rating for post-traumatic stress disorder (PTSD) from 70 percent to 50 percent, effective December 1, 2018, was improper; restoration of the 70 percent rating, effective December 1, 2018, is granted. A disability rating greater than 70 percent for PTSD is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a September 2009 rating decision, the RO denied service connection for right and left knee disabilities based on findings of no evidence of treatment in active service and no evidence of a nexus to service. Evidence submitted since then relates to an unestablished fact necessary to substantiate the claim, and has not been previously considered. 2. Currently diagnosed osteoarthritis of the right knee is etiologically related to active duty service. 3. Currently diagnosed osteoarthritis of the left knee is etiologically related to active duty service. 4. Chronic kidney disease is at least as likely as not caused by chronic use of medication for treatment of service-connected knee disabilities. 5. In connection with a rating in effect for less than five years, the evidence does not show improvement in PTSD symptoms; actual, sustained improvement under the ordinary conditions of life was not demonstrated. 6. Throughout the rating period, the Veteran’s PTSD has been manifested by no worse than occupational and social impairment with deficiencies in most areas such as work, family relations, judgment, thinking, or mood due to suspiciousness, anxiety, depression, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, and difficulty in adapting to stressful circumstances; total occupational and social impairment has not been demonstrated. CONCLUSIONS OF LAW 1. The September 2009 rating decision regarding the claims for service connection for right knee disability and for left knee disability is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. Evidence submitted since September 2009 is new and material; and the claims for service connection for right knee disability and for left knee disability are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 3. The criteria for service connection of osteoarthritis of right knee are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection of osteoarthritis of left knee are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 5. The criteria for service connection of chronic kidney disease are met. 38 U.S.C. §§ 1110, 1112, 1113, 1131, 1137, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310. 6. Reduction was improper; the criteria for restoration of 70 percent rating for PTSD are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.105, 3.344, 4.1, 4.2, 4.10, 4.130, Diagnostic Code 9411. 7. The criteria for a disability rating greater than 70 percent for the Veteran’s PTSD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.130, Diagnostic Code 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1964 to September 1966, including service in the Republic of Vietnam, and his decorations include the Combat Medical Badge. He timely appealed these matters from July 2018 and September 2018 rating decisions. In February 2020, the Veteran, his daughter, and his friend testified during a video conference hearing before the undersigned. A transcript of the hearing is associated with the record. All available records identified by the Veteran as relating to each of his claims have been obtained, to the extent possible. The record does not otherwise indicate any existing pertinent evidence that has not been obtained. Regarding reopening of previously denied claims, the Veteran is not entitled to examination prior to submission of new and material evidence. As to the claim for restoration and increased rating, there is no evidence indicating a material change in severity of disability since last examination. Regarding service connection claims, examination reports and opinions are thorough and adequate for the Board to render the following decisions in the Veteran’s appeal. 38 U.S.C. § 5103A(a)(2). The issue of service connection for hypertension was denied by the RO in a February 2016 rating decision. A recent favorable finding, confirming the Veteran’s service in the Republic of Vietnam, had not been considered by the RO in February 2016. The Veteran is advised that if he wishes to file a claim for readjudication of service connection for hypertension, he do so using prescribed form either in person or online (https://www.ebenefits.va.gov/ebenefits/). Reopening Irrespective of the RO’s action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claims. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Jackson v. Principi, 265 F.3d 1366 (Fed Cir 2001) (“Thus, the statutes make clear that the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened …”). VA may reopen and review claims that have been previously denied if new and material evidence is submitted by or on behalf of the Veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). “New evidence” is existing evidence not previously submitted; “material evidence” is existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claims. The RO originally denied service connection for right knee disability and for left knee disability in September 2009 based on the absence of evidence showing in-service treatment for each knee condition and the absence of evidence linking current disability of each knee to active service. In June 2018, the Veteran submitted claims to reopen and provided details with regard to his use of a wheelchair due to current bilateral foot and knee conditions. In February 2020, he testified that he had airborne training in active service and did some parachute jumps, which contributed to his current knee problems; and he no longer could walk without a walker. Evidence already of record included a parachute badge. Given the Veteran’s testimony, reopening of each of the previously denied claims is appropriate. Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. In order to establish service connection on a direct basis, the record must contain competent evidence of: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability that are subject to lay observation. 38 U.S.C. § 1153(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Some chronic diseases, such as arthritis and nephritis and calculi of the kidney, may be presumed to have been incurred in service, if they become manifest to a degree of ten percent or more within the applicable presumptive period. 38 U.S.C. §§ 1101(3), 1112(a); 38 C.F.R. §§ 3.307(a), 3.309(a). For those listed chronic conditions, a showing of continuity of symptoms affords an alternative route to service connection. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F. 3d 1331 (Fed. Cir. 2013). The applicable presumptive period is one year from separation. Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. When service connection is established for a secondary condition, the secondary condition shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). In this case, the Veteran was presumed sound at service entry. Clinical evaluation of lower extremities at entry in October 1964 was normal, and no disability other than myopia was recorded. Nor is there medical evidence of any disability prior to active service. The Board is within its province to make a determination as to whether the evidence supports a finding of service incurrence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Right and Left Knee Disabilities Service treatment records show that the Veteran qualified for Airborne training in January 1965. At that time he reported a history of broken bones, and the examiner noted fracture of clavicle in 1961, which was well healed. There were no complaints, injury, or trauma noted to either knee in active service. Clinical evaluation of the lower extremities was normal at the time of the Veteran’s separation examination from active service in September 1966. The Veteran has since reported in the context of his claims that he experienced symptoms of knee pain both in service and after service. He is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362, 268 (2005). VA records, dated in May 2008, show complaints of bilateral knee pain for about five years. The Veteran took medication for pain approximately once a month. MRI scans taken in March 2015 revealed degenerative changes of right knee, as well as a complex tear of medial meniscus; and degenerative changes of left knee. There was limited motion of each knee due to pain in July 2015. In February 2016, the Veteran reported knee pain when using the walker and requested a motorized wheelchair. In correspondence submitted in December 2016, the Veteran reported being stationed with the 82nd Airborne at Fort Bragg, North Carolina, and completing 62 jumps. A January 2018 VA examination report reveals that the Veteran has poor balance due to his knees and is wheelchair bound. A VA (contract) examiner in April 2018 noted that the Veteran had severe problems with his knees, and that he now was in a wheelchair. The examiner noted that these problems started in 2004 and gradually worsened. The Veteran underwent a VA (contract) examination in March 2019. The examiner diagnosed osteoarthritis of each knee joint, and noted the date of diagnosis as 2006. The medical history revealed onset of severe pain and difficulty walking in 2006. The Veteran described functional loss as not being able to walk or stand for very long. Following examination, the March 2019 examiner noted the lack of complaints, diagnosis, or treatment of either knee in service; and opined that right and left knee disabilities were less likely than not incurred in or caused by active duty service. VA records show that the Veteran received steroid injections for bilateral knee pain in July 2019. In February 2020, the Veteran testified that he went through Airborne training and did some parachute jumps in active service, which contributed to his knee problems. He testified that his knees have hurt ever since service. Furthermore, his statements are consistent with the circumstances of his service as a medic in Airborne training, and the Board finds that there is credible evidence of in-service knee pain. Here, the Veteran presented a history of an in-service onset of symptoms. He has been consistent with the reported history. VA records reflect that the condition has persisted and progressed since service, and include current diagnoses of osteoarthritis of each knee. Such records are consistent with the Veteran’s reports of longstanding symptomatology. The Veteran’s testimony of bilateral knee pain during and since active service is credible and is afforded significant probative value. The Board notes that no examiner has considered the Veteran’s credible testimony of recurring symptoms of knee pain following discharge from service. Service connection for osteoarthritis of each knee is therefore warranted as supported by a preponderance of the evidence. Chronic Kidney Disease Service treatment records do not reflect any findings or complaints of chronic kidney disease or of kidney problems on active duty. The Veteran underwent no treatment for nephritis, for calculi of the kidney, or for any kidney disease in active service. Abnormal kidney function was first noted post-service in 2012. Symptoms of chronic kidney disease were reported by the Veteran at a primary care clinic visit in 2014, many years after his separation from service. Hence, direct service connection for chronic kidney disease is not warranted because there is no competent evidence linking his current disability to any disease or injury in active service. Here, the evidence does not show that chronic kidney disease had its onset in active service, or that a chronic disease (to include nephritis or calculi of the kidney) manifested within one year after the Veteran’s separation from active service. No significant medical history was noted post-service in July 2006. As such, he is not entitled to direct or presumptive service connection. A VA general medical examiner in August 2009 noted a past medical history of chronic kidney disease. Blood testing in October 2013 revealed that the Veteran’s kidneys were “revved up.” Chronic kidney disease, unspecified, was noted in October 2014. In November 2015, a VA nephrology consultation revealed that the etiology of the Veteran’s chronic kidney disease is likely due to hypertension nephrosclerosis and chronic NSAIDs (non-steroidal anti-inflammatory drugs) use; this conclusion is repeated, both by history and new medical analysis, throughout VA treatment records. Moreover, the medical records indicate that the chronic use of NSAIDs was for treatment of bilateral knee pain. Treatment records regarding the Veteran’s knees repeatedly caution that the use of NSDAIDs was forbidden as it would worsen his kidney problems. Nevertheless, the Veteran indicated on several occasions past and continued use of the products. In February 2020, the Veteran testified that his doctor never told him what caused his chronic kidney disease. The Veteran’s daughter testified that the Veteran was on a very strict diet, more for kidney disease than for diabetes. The evidence of record shows that currently diagnosed kidney disease is due, at least in part, to the chronic use of NSAIDs to treat the now service-connected knee disabilities. Accordingly, service connection on a secondary basis is warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Rating PTSD Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings.” Hart v. Mansfield, 21 Vet. App. 505 (2007). When evaluating a mental disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the Veteran’s capacity for adjustment during periods of remission. The rating agency shall assign an evaluation based upon all the evidence of record that bears on occupational and social impairment, rather than solely upon the examiner’s assessment of the level of disability at a moment of examination. When evaluating the level of disability from a mental disorder, the rating agency will consider the extent of social impairment, but shall not assign an evaluation solely based on social impairment. 38 C.F.R. § 4.126. The General Rating Formula for Mental Disorders at 38 C.F.R. § 4.130 provides that occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships, is rated 70 percent disabling. Total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name, is rated 100 percent disabling. 38 C.F.R. § 4.130. The rating formula is not intended to constitute an exhaustive list, but rather is intended to provide examples of the type and degree of symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. Instead, VA must consider all symptoms of a Veteran’s condition that affect the level of occupational and social impairment, and assign an evaluation based on the overall disability picture presented. However, the symptoms do need to cause such impairment in most of the areas referenced at any given disability level. Vazquez-Claudio v. Shinseki, 713 F. 3d. 112 (Fed. Cir. 2013). Restoration The Veteran is challenging the reduction of disability rating for PTSD, from 70 percent disabling to 50 percent disabling. The reduction was carried out in a September 2018 rating decision, more than 60 days after an April 2018 rating action proposed such reduction, with notice to the Veteran. In this matter the evidence reflects that the procedure regarding reductions was properly followed, and the Veteran is not alleging otherwise. 38 C.F.R. § 3.105(e). Where a disability rating has been in effect less than five years, a rating reduction is warranted where reexamination of the disability discloses actual improvement of that disability. 38 C.F.R. § 3.344(c). The evidence must reflect an actual change in the Veteran’s condition and not merely a difference in the thoroughness of the examination or in the use of descriptive terms. 38 C.F.R. § 4.13. The evidence must show that the improvement in the disability actually reflects an improvement in the Veteran’s ability to function under the ordinary conditions of life and work. 38 C.F.R. §§ 4.2, 4.10. Furthermore, rating reduction cases must be based upon a review of the entire history of the Veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Brown v. Brown, 5 Vet. App. 413 (1993). The Veteran contends that his PTSD was getting worse, and not better; and that he lived with his daughter, who assisted him with activities of daily living. The Veteran’s daughter also testified that the Veteran just sat home and stared off into space; he did not want to be around people. He was “mad at the world” and blew up if you asked him a simple question; and he was up at night and did not sleep. Because this case involves the reduction of rating, the question is not whether the Veteran meets the criteria for a 70 percent rating for PTSD; but, rather, whether the reduction in his rating was proper. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). The focus is on evidence available at time reduction was effectuated, although post-reduction medical evidence may be considered in evaluating whether PTSD demonstrated actual improvement. Cf. Dofflemyer, 2 Vet. App. at 281-282 (1992). Historically, in a September 2009 rating decision, the RO granted service connection and assigned an initial 30 percent disability rating for PTSD, effective May 2009. The rating was based on evidence showing mild-to-moderate impairment of social and occupational functioning. In a December 2014 rating decision, the RO increased the rating for PTSD to 70 percent, effective November 2014. The rating was based on evidence showing occupational and social impairment with deficiencies in most areas, such as work and family relations and judgment and thinking and mood. PTSD symptoms at the time included disturbances of motivation and mood, and difficulties in establishing and maintaining effective work and social relationships were noted. VA records, dated in February 2015, show that the Veteran was taking medication daily for PTSD. He was sleeping a little better; his depression was stable. An April 2018 rating decision proposed to reduce the evaluation to 50 percent, primarily on the basis of an April 2018 VA (contract) examination that showed occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. PTSD symptoms at the time included disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The examiner also found insufficient information currently to warrant a psychotic diagnosis. Occupational impairment based on mental health issues was not evident. Socially, the Veteran remained somewhat isolated. He had one good friend with whom he socialized and regular interactions with his children and grandchildren. In May 2018, the Veteran’s daughter reported that she had to assist the Veteran with activities of daily living. She ensured that his clothes were clean. The Veteran had a bad memory and became very sad; he just stayed in his room. The reduction to 50 percent was implemented, effective December 1, 2018, in a September 2018 rating decision. The RO specifically found that a 70 percent evaluation no longer was warranted. Here, regardless of whether criteria for a 70 percent evaluation are met, the objective evidence of record fails to demonstrate a material improvement in the Veteran’s disability. Specifically, following the December 2014 examination, another VA (contract) examiner in December 2015 also found occupational and social impairment with deficiencies in most areas. PTSD symptoms at the time included difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. While occupational and social impairment subsequently was described as mild or transient and the Veteran took medications for PTSD, his PTSD symptoms in April 2018 included disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. Thus, each examiner since December 2014 has noted similar PTSD symptoms. One examiner also noted that, over the last three years, the Veteran became sad when he sat and thought for two hours before distracting himself, and that this occurred twice weekly. No separate evaluation for the amount of sadness was warranted. In essence, the April 2018 VA (contract) examination report did not reveal evidence of material improvement from prior two examination reports in December 2014 and December 2015. Since December 2014, PTSD symptoms have included difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. Actual improvement was not demonstrated. Moreover, the Veteran’s daughter and friend have indicated there has been no actual improvement on a daily basis. In summary, the Board finds that the reduction from 70 percent to 50 percent for PTSD was improper and not based on actual improvement in the condition under the ordinary conditions of everyday life. Accordingly, a 70 percent rating is restored, effective December 1, 2018. Increased Evaluation The Veteran argues not only for restoration, but also for a rating in excess of 70 percent is service-connected PTSD. A June 2015 VA examiner described the Veteran’s occupational and social impairment as with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and/or mood. Current symptoms included anxiety, suspiciousness, impaired abstract thinking, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. The Veteran’s mood was dysphoric, and his affect was constricted. Thought processes were logical and coherent and concrete. There was mild evidence of psychomotor agitation. There was no suicidal ideation, no homicidal ideation, and no psychotic symptoms. Other symptoms included alcohol abuse. Considerable impairment was noted. In January 2018, an examiner noted that PTSD did impact the Veteran’s memory and his desire to engage with others and activities. As noted above, an April 2018 VA (contract) examiner described the Veteran’s occupational and social impairment as due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. Current symptoms included suspiciousness, mild memory loss such as forgetting names or directions or recent events, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. The Veteran remained emotionally controlled throughout the evaluation. He presented a generally bright affect. The Veteran denied current problems with anxiety and depression. Occupational impairment based on mental health issues was not evident. Socially, the Veteran was somewhat isolated. He denied a history of substance abuse, including alcohol. VA records, dated in September 2018, show that the Veteran’s mood was “up and down,” and that he was “less anxious” because of approval for a motorized wheelchair. His affect was appropriate and with good range. There was no suicidal ideation, no homicidal ideation, and no psychotic symptoms. In June 2019, the Veteran’s behavior, mood, and affect were appropriate; he was well groomed. In February 2020, the Veteran’s daughter testified that the Veteran had lost enthusiasm for doing anything; stressful things made him shut down. While impairment is demonstrated, total occupational and social impairment due to PTSD is not shown or approximated. There is no compelling indication of symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. While the Veteran’s depression had worsened and he just sat at times and stared for hours, none of the Veteran’s actions suggest such severity of PTSD symptoms. Although he blew up at simple questions, no violence was reported. His memory loss was described as mild. While the actual level of functioning due to PTSD symptoms had been severe at times, total impairment was not demonstrated. No increased rating is warranted. In short, the Board finds that the overall severity, frequency, and duration of the Veteran’s symptoms are not on par with the level of severity contemplated by the total rating criteria at any time. The preponderance of the evidence is against the claim; there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. REASONS FOR REMAND TDIU As the Board has granted service connection for osteoarthritis of right and left knees, as well as chronic kidney disease, all of which have yet to be rated, the TDIU issue is inextricably intertwined and must be deferred on remand for re-adjudication. Further, the Veteran may be entitled to special monthly compensation as provided in § 1114(s), if he is found to be unemployable due solely to one of his service-connected disabilities and there is additional service-connected disability or disabilities that are independently ratable at 60 percent, which are separate and distinct from the 100 percent service-connected disability and involve different anatomical segments or bodily systems. See Bradley v. Peake, 22 Vet. App. 280 (2008). The matter is REMANDED for the following action: 1. Implement the grants of service connection for osteoarthritis of the right and left knees, and chronic kidney disease, to include assignment of initial evaluations. 2. After completion of the above, readjudicate the issue of entitlement to TDIU, to include consideration of whether unemployability, if found, could be attributed to a single service-connected disability. If the benefit sought remains denied, furnish a supplemental statement of the case and then return the appeal to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary C. Suffoletta 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.