Citation Nr: 21026367 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 17-46 269 DATE: April 30, 2021 ORDER The previously denied claim for service connection for sleep apnea is reopened The previously denied claim for service connection for a neck disability is reopened. Service connection for a neck condition, to include degenerative arthritis, is granted. Entitlement to a rating in excess of 70 percent for post-traumatic stress disorder (PTSD) is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDINGS OF FACT 1. A September 2014 rating decision denied service connection for sleep apnea on the grounds that a current diagnosis was disputed, and there was no nexus to service shown. 2. Evidence received since September 2014 is not cumulative or redundant of the evidence previously of record and relates to the unestablished fact of a current disability, necessary to substantiate the claim of service connection for sleep apnea. This raises a reasonable possibility of substantiating the claim. 3. The September 2014 rating decision denied service connection for a neck condition on the grounds that there was no nexus to service. 4. Evidence received since September 2014 is not cumulative or redundant of the evidence previously of record and relates to the unestablished fact of a current disability, necessary to substantiate the claim of service connection for a neck condition. This raises a reasonable possibility of substantiating the claim. 5. The Veteran’s neck disability, diagnosed as degenerative arthritis, is etiologically related to his active duty military service. 6. The Veteran’s PTSD has not manifested by total occupational and social impairment. CONCLUSIONS OF LAW 1. The September 2014 rating decision that denied service connection for sleep apnea and a neck condition is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for sleep apnea. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103 3. New and material evidence has been received to reopen a claim of entitlement to service connection for a neck disability. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 4. The criteria for entitlement to service connection for a neck disability, diagnosed as degenerative arthritis, have been met. 38 U.S.C. §§1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.309. 5. The criteria for an evaluation in excess of 70 percent for PTSD have not been 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 was a member of the Air National Guard; he served on active duty from December 2010 to September 2011 and August 2013 to April 2014. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a January 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran provided testimony at a hearing before the undersigned Veteran’s Law Judge in January 2021; a transcript of the hearing has been associated with the claims file. At the hearing, the Veteran appeared without counsel. The Veteran had appointed the Oklahoma Department of Veterans Affairs as his representative. However, since the time of that appointment, the Veteran had moved to New Mexico and was no longer represented by the Oklahoma Department of Veterans Affairs. The Veteran informed the undersigned that he wished to proceed without representation. Additionally, the Veteran reported he was employed full time in the oil industry, and while he had switched jobs several times, he had held his current position for more than two years and was “in a really good place right now.” A claim for a finding of total disability based on individual unemployability (TDIU) is therefore not inferred as part of the current claim for increase. Rice v. Shinseki, 22 Vet. App. 447 (2009). New and Material Evidence Irrespective of the RO’s action, the Board must decide whether the Veteran has submitted new and material evidence to reopen the claim. Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996). Rating actions from which an appeal is not timely perfected become final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). Furthermore, consideration is not limited to whether the newly submitted evidence relates specifically to the reason the claim was last denied, but instead should include whether the evidence could reasonably substantiate the claim were the claim to be reopened, either by triggering the Secretary’s duty to assist or through consideration of an alternative theory of entitlement. Id. at 118. In a September 2014 rating decision, the RO denied the Veteran’s claims of service connection for sleep apnea and a neck condition. The Veteran did not initiate an appeal from this decision; therefore, the September 2014 rating decision is a final decision. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Sleep apnea The September 2014 rating decision denied the Veteran's claim of service connection for sleep apnea on two seemingly contradictory grounds. First, the RO noted that the Veteran's medical records from the Muskogee VA Medical Center showed a diagnosis of sleep apnea, but indicated the Veteran's sleep apnea was due to his weight. The rating decision then states that service connection for sleep apnea had been denied because the medical evidence of record failed to show that the Veteran's sleep apnea had been clinically diagnosed. The Codesheet indicated the lack of diagnosis was the basis for denial. The Veteran was diagnosed with sleep apnea after a September 2016 sleep study, satisfying the requirement of a clinical diagnosis of sleep apnea. This evidence was not part of the claims file in September 2014 and is material to the necessary and unestablished fact of a clinical diagnosis of a current disability. This previously unconsidered evidence raises the reasonable possibility of substantiating the claim, triggering the duty to assist, as well as the consideration of an alternate theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 118-22 (2010). New and material evidence has been received and the claim for service connection; consequently, the claim is reopened. Neck disability The September 2014 rating decision denied the Veteran's claim of service connection for a neck disability on the grounds that the Veteran's neck condition was not related to military service. The Veteran testified at the January 2021 hearing that he had continued to experience neck pain radiating to both shoulders since his active duty in 2011, describing an incident in which he was thrown against the roof of the military vehicle in which he was patrolling. This evidence, which was not part of the record in September 2014, relates to the unestablished fact of a nexus between the Veteran's neck condition and his military service. This previously unconsidered evidence raises the reasonable possibility of substantiating the claim, triggering the duty to assist, as well as the consideration of an alternate theory of entitlement. Shade v. Shinseki, 24 Vet. App. 110, 118-22 (2010). New and material evidence has been received and the claim for service connection; consequently, the claim is reopened. 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. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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). 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. §§ 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). 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). Some chronic diseases 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). Degenerative arthritis is a “chronic disease” that is among the listed conditions. When assessing the probative value of a medical opinion, the thoroughness and detail of the opinion must be considered. The opinion is considered probative if it is definitive and supported by detailed rationale. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). In adjudicating a claim, the competence and credibility of the Veteran must be considered. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Competent lay evidence is any evidence not requiring that the person giving the evidence have specialized education, training, or experience. 38 C.F.R. § 3.159(a)(2). At the February 2017 VA examination, the Veteran was diagnosed with degenerative arthritis of the cervical spine and left-sided stenosis at C3-4. This satisfies the requirement of a current disability. The Veteran contends that his neck pain began after an incident during active duty where he was riding in a vehicle on patrol that hit a large hole left from an IED blast, and has continued ever since. The Veteran was thrown into the ceiling of the vehicle, compressing his head, neck and back. He testified at the January 2021 hearing that his neck pain, with radiation to both shoulders has continued ever since that time. Military personnel records show that the Veteran was a security force specialist, and has been granted service connection for degenerative arthritis in his lower back based on the same incident. Service treatment records show that the Veteran did sustain an axial load injury, consistent with the compression injury he describes, during his 2011 deployment. He sought treatment for neck pain in January and February 2014, but had previously been treated for back and shoulder pain. After discharge from service, the Veteran continued to complain of neck pain. In July 2014, the Veteran's doctor characterized the Veteran's neck pain as chronic during a visit where the Veteran sought additional treatment for neck and back pain. The Veteran's primary care provider referred him to the pain clinic to manage his pain. The Veteran again sought treatment for neck pain throughout early 2016. An April 2016 MRI revealed an osteophyte complex with moderate left neural foraminal narrowing at C3-4, and a physical examination in May 2016 showed decreased range of motion in the Veteran's neck. More recently, the Veteran has sought chiropractic care for his neck disability. The Veteran is competent to describe the nature, onset, and course of his neck pain. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Veteran sought treatment for neck pain in service, and testified that he has continued to experience this same pain since then. Treatment records corroborate this, showing that shortly after service, in July 2014, the Veteran's primary care provider characterized his neck pain as chronic. The Veteran testified that he was advised by VA doctors that they could not treat both his neck and back with interventional pain treatment (such as epidural injections), and he would have to choose which condition to treat. The Veteran testified that he chose to treat his lower back. As a result, there are not as many treatment records concerning his neck as there are for his back. The Board finds the Veteran's statements describing his neck symptoms are competent and credible. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) and Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). Based on the service treatment records, the post-service medical records and the Veteran's competent and credible statements concerning the onset, duration and character of his neck pain, the Board finds that service connection is warranted. Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran’s PTSD is rated under the general rating formula for mental disorders under 38 C.F.R. § 4.130. A 30 percent rating is assigned for occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily with routine behavior, self-care and normal conversation) due to symptoms such as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impartment and mild memory loss (such as forgetting names, directions or recent events). A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted where there is 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); inability to establish and maintain effective relationships. A 100 percent rating is warranted when there is 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 and place; memory loss for names of close relatives, own occupation or name. The U.S. Court of Appeals for the Federal Circuit has noted the “symptom-driven nature” of the General Rating Formula and that “a Veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that “symptomatology should be the fact-finder’s primary focus when deciding entitlement to a given disability rating.” Id. at 117. The psychiatric symptoms listed in the above rating criteria are not exclusive but are examples of typical symptoms for the listed percentage ratings. Mauerhan v. Principi, 16 Vet. App. 436 (2002). However, if the evidence shows that a veteran has symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. The Veteran contends that his PTSD causes hallucinations, inappropriate behavior, and disorientation. At the January 2021 hearing, the Veteran testified that he has hallucinations and flashbacks to combat – on one occasion, he actually put his truck into reverse to try and escape what he thought were troops coming down the hill on the lease road. He has nightmares where he sees his son’s face on the bodies of deceased children that he saw during deployment. At times, when he looks at his young son, he sees the faces of the dead children. The Veteran described causing scenes in restaurants by “freaking out” and screaming and yelling when someone drops a plate. Although he can remember the names of his family members, he is generally bad with names. For example, he cannot remember the name of a fellow servicemember who was injured on deployment, although he can remember his face and where he is from. He explained that due to his PTSD symptoms, he has been unable to maintain basic hygiene, especially dental hygiene, and now needs thousands of dollars of dental work. He has changed jobs five or six times because he blows up on someone and then quits or resigns. The Veteran testified that he attempted suicide a few years previously, and was admitted to Ward 7 in Albuquerque. The Veteran continues to have suicidal thoughts and plans despite an increase in medication. The Veteran testified that he continues to work full time as a field site manager, and is “holding steady” in his current job for two and a half years. He explained that to move up in the oil and gas industry, you have to move around to “promote up.” The Veteran described being in a “really good place right now” with a good working knowledge of what he is doing, an understanding boss and coworkers who are also veterans. At the May 2016 VA examination, the Veteran and his father reported that the Veteran was self-isolated and irritable around his family and displayed suspiciousness, hypervigilance, problems with concentration and sleep disturbance. The Veteran reported frequent suicidal ideation without plans or intent. The examiner noted that the Veteran's active symptoms including a depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting his ability to function independently, appropriately and effectively, neglect of personal appearance or hygiene, chronic sleep impairment, difficulty in establishing and maintaining effective relationships and intermittent inability to perform activities of daily living. He did not indicate active symptoms such as disorientation to time or place, memory loss (either mild or severe), gross impairment in thought or communication, persistent delusions or hallucinations or grossly inappropriate behavior. A mental status examination showed a depressed mood with a flat and constricted affect, slow speech, mild impairment of short-term memory, concentration, insight, and judgment as well as suicidal ideation. However, the Veteran denied audiovisual hallucinations. The examiner characterized the Veteran's psychiatric symptoms as causing occupational and social impairment with deficiencies in most areas, such as work, school, family relations, thinking and mood. However, he concluded that the Veteran was capable of managing his own financial affairs. Treatment records generally showed that the Veteran was appropriately groomed and cooperative, with normal psychomotor activity, an appropriate, if restricted, affect, grossly intact memory, coherent and logical thought processed, and without signs or symptoms of acute distress. Clinicians regularly described the Veteran's memory as grossly intact and observed that the Veteran was not responding to internal stimuli. The Veteran routinely denied audiovisual hallucinations. The Veteran consistently reported maintaining full time employment. In the first half of 2017, the Veteran described improvements in his anger management, reporting in July 2017 that he had a good conversation with his boss and characterizing blowups with his wife as rare. That same month, the Veteran also received a raise at work. However, after July 2017, the Veteran began missing mental health treatment appointments, and in October 2017 was admitted for inpatient psychiatric treatment after he sought emergency treatment for thoughts of suicide with a plan to shoot himself. In the emergency department, the Veteran was well-groomed and neatly dressed, with good eye contact and normal psychomotor activity but an anxious, depressed mood and congruent unstable affect. He reported auditory and visual hallucinations, but did not appear to be responding to internal stimuli. He was alert and oriented to time, person, place, and situation, was able to spell the word world backwards. The Veteran was admitted to inpatient treatment for three days. During his hospitalization, the Veteran described having discontinued his medications approximately three months prior, which led to worsening psychiatric symptoms and marital strain, leading to a marital separation approximately two weeks prior to his admission. The Veteran reported hearing voices encouraging him to commit suicide and increased nightmares. Although he reported that his coworkers purposely triggered him, he had maintained employment through this period, and was employed at the time of his admission – he had both a personal and work cell phone in his personal property. Additionally, at discharge, the Veteran asked for a note excusing him from work through the weekend to allow him time to readjust to home stressors. When discharged, the Veteran had appropriate grooming and hygiene, was alert and oriented, in a good mood, with an organized and relevant thought process. He had a normal affect and normal speech rate and volume. The Veteran denied suicidal ideation and audiovisual hallucinations. After discharge, the Veteran did not engage with mental health treatment until he called the Veteran's Crisis Line in early April 2018, reporting that he was having suicidal ideation with a plan. At the follow-up mental health appointment in April 2018, the Veteran explained that he been extremely busy with work and buying a new house, and had stopped taking his medication about a month prior which led to his call to the crisis line. A mental status exam documented adequate grooming and eye contact, a pleasant and cooperative attitude with mildly increased psychomotor activity, no acute distress as well as a regular rate and rhythm of speech. The Veteran had a somewhat restricted affect, but his thought process was linear, rational, and relevant. He admitted to suicidal ideation, but denied audiovisual hallucinations and was not responding to internal stimuli. His recent and remote memory were grossly intact, and he had adequate concentration, without the need for significant redirection. Despite continued inconsistent engagement with treatment and medication, subsequent treatment records show that the Veteran was routinely observed with adequate grooming, good eye contact and normal speech. Although he also regularly displayed a restricted affect, he consistently denied audiovisual hallucinations and suicidal ideation. Clinicians observed that he was not responding to internal stimuli, and his memory and concentration were grossly intact. In September 2019, the Veteran reported continued full time employment in a job he had started in October 2018. He described starting a new work schedule that gave him more time to spend with his family, including attending his children’s sporting events. In January 2020, the Veteran told the clinician that he was still working full time in a management position and was doing a lot of sports with his children, attending a game or event almost every weekend. While the Board recognizes that the Veteran has severe impairment related to his PTSD symptoms, the evidence, including the highly probative VA treatment records and VA examination reports, show that the Veteran’s symptoms do not cause total social and occupational impairment. Veteran has maintained full time employment throughout the period at issue. Most recently, the Veteran has been in a management position for approximately two and a half years. Considering the record as a whole, the Board finds that the Veteran’s hospitalization in October 2017 was not a continuing manifestation of his PTSD, but a temporary exacerbation of his acquired psychiatric disability. Consequently, a 100 percent rating for total social and occupational impairment is not warranted. REASONS FOR REMAND Entitlement to service connection for sleep apnea is remanded. As described above, the Veteran testified at the January 2021 hearing that he first began having symptoms of sleep apnea after returning from his 2011 deployment. Treatment records show that in December 2012, the Veteran reported sleep problems, including unrestful sleep and difficulty staying asleep. In January 2014, while he was on active duty, the Veteran again sought treatment for snoring that was disturbing his sleep despite his use of nasal strips and Nasalide. Ultimately, the Veteran was referred for a sleep study in 2014 that diagnosed him with sleep disturbance and snoring, but did not diagnose sleep apnea. At the December 2016 VA examination, the Veteran reported that he began snoring and waking up gasping for breath and sought treatment for these symptoms while still on active duty. He reported that a sleep study conducted showed symptoms of sleep apnea, but the Veteran did not need a CPAP. The Veteran explained that symptoms continued to worsen, and he was diagnosed with sleep apnea in September 2016. The December 2016 examiner concluded that the Veteran’s sleep apnea was less likely than not due to or the result of the Veteran’s service-connected PTSD. However, her opinion was inadequate. The examiner did not consider whether the Veteran’s sleep apnea was aggravated by PTSD, and did not discuss the possibility of direct service connection, to included exposure to burn pits and other substances in Southwest Asia. Consequently, a remand for a complete nexus opinion is required. The matters are REMANDED for the following action: 1. Obtain an addendum nexus opinion from a VA examiner regarding the Veteran's diagnosed sleep apnea. The claims folder must be reviewed in conjunction with the examination; provision of a new physical examination is at the discretion of the reviewer. The reviewer must opine as to whether it is at least as likely as not that (50 percent probability or greater) that the Veteran's sleep apnea is caused or aggravated by service. The reviewer must specifically consider and comment upon the Veteran's description of the onset and progression of his symptoms of sleep apnea, including snoring and gasping for breath, and discuss in-service exposures to contaminants on deployment. The examiner’s attention is directed to the Veteran's January 2021 testimony. Additionally, the examiner must opine as to whether the Veteran's sleep apnea is at least as likely as not (50 percent or greater) caused or aggravated by the Veteran’s service-connected disabilities. The examiner will specifically consider and comment whether the Veteran’s PTSD caused or aggravated his currently diagnosed sleep apnea. A full and complete rationale is required for all opinions provided. 2. Then, readjudicate the claim on appeal. If any benefit sought remains denied, issue an appropriate supplemental statement of the case, and return the appeal to the Board WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Megan-Brady Viccellio 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.