Citation Nr: 21026414 Decision Date: 05/03/21 Archive Date: 05/03/21 DOCKET NO. 17-38 627 DATE: May 3, 2021 ORDER An initial rating in excess of 20 percent for service-connected chronic fatigue syndrome (CFS) is denied. An initial rating in excess of 10 percent for service-connected irritable bowel syndrome with gastroesophageal reflux disease (GERD) prior to March 10, 2015, and in excess of 30 percent from that date is denied. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. During the relevant period on appeal, the Veteran's CFS symptoms did not restrict his daily activities to 50 to 75 percent of the pre-illness level. 2. Prior to March 10, 2015, the Veteran's IBS with GERD was manifested by moderate symptoms of frequent episodes of bowel disturbance with abdominal distress. 3. From March 10, 2015, the Veteran's IBS with GERD has been manifested by severe symptoms of alternating constipation and diarrhea with more or less constant abdominal distress. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 20 percent for service-connected CFS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.114, Diagnostic Codes (DCs) 8864-6354. 2. The criteria for an initial rating in excess of 10 percent for service-connected IBS with GERD prior to March 10, 2015, and in excess of 30 percent from that date have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.7, 4.114, DCs 8873-7319. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 2003 to July 2003. In August 2020, a videoconference hearing was held before the undersigned Veterans Law Judge. A transcript is of record. During the August 2020 hearing, the Veteran reported that he occasionally sought treatment outside the VA medical network, but that all of the records from his private physicians had been obtained. As such, the Board finds that the relevant treatment records have been obtained, and adjudication of the issues is warranted. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). At the outset, the Board notes that it has reviewed all of the evidence of record, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. 1. Entitlement to an initial rating in excess of 20 percent for CFS. The Veteran is currently assigned a 20 percent disability rating for CFS. He contends that a higher rating is warranted. See July 2017 VA Form 9. The Veteran's disability is rated under Diagnostic Codes 8863 and 6354. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. The use of a hyphenated diagnostic code involving DC 8863 indicates a claim based upon 38 C.F.R. § 3.317 for disease analogous to systemic disease, while the DC 6354 most closely fits the evaluating criteria for CFS. Diagnostic Code 6354 provides that CFS includes debilitating fatigue, cognitive impairments (such as inability to concentrate, forgetfulness, confusion), or a combination of other signs and symptoms. A 20 percent disability rating is assigned for signs and symptoms of chronic fatigue syndrome that are nearly constant and restrict routine daily activities by less than 25 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least two but less than four weeks total duration per year. A 40 percent disability rating is assigned for signs and symptoms of chronic fatigue syndrome that are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or the signs and symptoms wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. A 60 disability rating is assigned for signs and symptoms chronic fatigue syndrome that are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. A 100 percent disability rating is assigned for signs and symptoms of chronic fatigue syndrome that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. A note to Diagnostic Code 6354 provides that, for the purpose of rating CFS, the condition will be considered incapacitating only while it requires bed rest and treatment by a physician. 38 C.F.R. § 4.88b, Diagnostic Code 6354. The Veteran's CFS is rated at 20 percent. To warrant the next higher rating of 40 percent the record must show that the Veteran's CFS symptoms are nearly constant and restrict his routine daily activities to 50 to 75 percent of the pre-illness level. On September 2013 VA examination, the VA examiner noted that the Veteran did not have debilitating fatigue or fatigue that lasted 24 hours or longer after exercise. The VA examiner noted that the Veteran's percentage of restriction of routine daily activities was 70 percent, and that the duration of the extent of restriction was more than 12 months. The Veteran reported symptoms of generalized weakness, sleep disturbance, inability to concentrate, and headaches, and that the restricted activities included shopping, cooking, cleaning around the house, chores, exercise, sports, recreation, travelling, and participating in a social life. The Veteran was employed part-time in an administrative setting, and it was noted that the lack of energy, decreased concentration, poor social interactions, and weakness or fatigue impacted occupational activities. The VA examiner found that the criterion of new onset of debilitating fatigue was not severe enough to reduce or impair average daily activity below 50 percent of the patient's pre-illness activity level for a period of 6 months. In a March 2015 VA disability benefits questionnaire (DBQ), a private physician noted that the Veteran required continuous medication for control of CFS, but that the Veteran's symptoms were not controlled by continuous medication. The private physician noted that the Veteran had debilitating fatigue that reduced the daily activity level to less than 50 percent of the pre-illness level to 6 months or longer. The Veteran reported nearly constant symptoms of generalized muscle aches or weakness, headaches, sleep disturbance, poor attention, inability to concentrate, forgetfulness. The private physician noted that the Veteran's symptoms did not result in periods of incapacitation, and that the Veteran's symptoms did not restrict daily activities as compared to the pre-illness level. The Veteran's ability to work was noted to be impacted by CFS, and the Veteran was found to be able to perform light physical and sedentary activities. The private physician found that there was no change to the VA established diagnosis. VA treatment records show that in June 2020, the Veteran reported symptoms of constantly feeling tired, sleep disturbance, and muscle soreness. On July 2020 VA examination for fibromyalgia, the Veteran reported fatigue and body aches. During the August 2020 Board hearing, the Veteran argued that the September 2013 notation regarding the percentage of restriction of daily activity to 70 percent and lasting more than 12 months in duration demonstrated that he should be rated more closely to the rating criteria for a 100 percent evaluation for CFS. The Veteran reported that he experienced an almost daily occurrence of sleep disturbance, and that he experienced debilitating fatigue after exercising, such as going for a walk. The Veteran reported that his CFS impacted his work life, home life, and social life, and that he stopped working approximately 1.5 years prior to the hearing due to CFS. After review of the record, the Board finds that an evaluation in excess of 20 percent for CFS is not warranted. While the medical evidence of record shows that the Veteran's fatigue is nearly constant, it has not been demonstrated that the CFS symptoms are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or the signs and symptoms wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year. The record also fails to demonstrate that the Veteran has been prescribed bed rest by a physician. The Board notes that numerous times throughout the relevant period on appeal, the Veteran has argued that the September 2013 VA examination and March 2015 private opinion demonstrate that a higher rating is warranted because it was noted that the disability restricted his daily activities to 70 percent. See July 2014 notice of disagreement (NOD); August 2015 correspondence; and July 2017 VA Form 9. However, the Veteran's arguments do not address the relationship between the current restrictions and the pre-illness activity level, which is required to meet the 40 percent disability rating criteria for CFS. While the September 2013 VA examiner found that the Veteran's current activity restriction was 70 percent, the VA examiner also found that the criterion of new onset of debilitating fatigue was not severe enough to reduce or impair average daily activity below 50 percent of the patient's pre-illness activity level for a period of 6 months. The March 2015 private opinion noted that the Veteran's symptoms did not result in periods of incapacitation, and that the Veteran's symptoms did not restrict daily activities as compared to the pre-illness level. As such, the 40 percent rating criteria of CFS symptoms that are nearly constant and restrict routine daily activities to 50 to 75 percent of the pre-illness level, or the signs and symptoms wax and wane, resulting in periods of incapacitation of at least four but less than six weeks total duration per year, have not been met. Furthermore, the evidence of record fails to demonstrate that the Veteran's CFS symptoms are nearly constant and restrict routine daily activities to less than 50 percent of the pre-illness level, or signs and symptoms that wax and wane, resulting in periods of incapacitation of at least six weeks total duration per year. The record also fails to show that the Veteran experiences signs and symptoms of chronic fatigue syndrome that are nearly constant and so severe as to restrict routine daily activities almost completely and which may occasionally preclude self-care. The Board recognizes that the Veteran is competent to attest to things he experiences through his senses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the severity of symptoms the Veteran experienced following service that are in any way related to a current disability require medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). Accordingly, the Board finds that the preponderance of the evidence is against the claim that a rating in excess of 20 percent for CFS. The preponderance of the evidence is against the claim, so the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. 2. Entitlement to an initial rating in excess of 10 percent for service-connected IBS with GERD prior to March 10, 2015, and in excess of 30 percent from that date. The Veteran's IBS with GERD was rated 10 percent disabling under DCs 8873-7319 prior to March 10, 2015, and is rated 30 percent disabling from that date. The Veteran seeks higher ratings throughout the relevant periods on appeal, specifically claiming that his IBS with GERD is more accurately characterized under the DC 7346 rating criteria for a hiatal hernia, which will be addressed in full below. See July 2017 VA Form 9. Diagnostic Code 8873 is used for tracking purposes when rating an undiagnosed illness for a Persian Gulf War veteran by analogy to one of the gastrointestinal diseases found in VA's Rating Schedule. The provisions of 38 C.F.R. § 4.114, Diagnostic Code 7319, pertain to irritable colon syndrome. Under Diagnostic Code 7319, a 10 percent rating is assigned for moderate irritable colon syndrome with frequent episodes of bowel disturbances with abdominal distress. A maximum 30 percent rating is assigned for severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. The terms "slight," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The United States Court of Appeals for Veterans Claims (Court) has held that "staged" ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). a. Entitlement to a rating in excess of 10 percent for IBS with GERD prior to March 10, 2015. VA treatment records show that the Veteran was treated for chronic constipation throughout the period on appeal. On September 2013 VA examination, the Veteran was diagnosed with chronic constipation and GERD, which were both being treated with medication. The VA examiner noted that the Veteran experienced abdominal distension, constipation, infrequent episodes of epigastric distress, pyrosis (heartburn), and reflux. The VA examiner also noted that the Veteran experienced frequent bowel disturbance with abdominal distress and 7 or more exacerbations within the past 12 months. The Veteran did not experience weight loss attributable to an intestinal condition, nor does the record show that he experienced malnutrition, serious complications, tumors, or neoplasms of the intestines. The Veteran has been diagnosed with IBS with symptoms including alternating diarrhea and constipation, nausea, abdominal pain and cramping, and GERD. This paired with the absence of malnutrition, other general health effects, or tumors/neoplasms persuades the Board that, though other digestive system codes were considered, Diagnostic Code 7319 is the most analogous to the Veteran's disability. 38 C.F.R. § 4.20. The Board acknowledges that the Veteran has contended that the rating criteria for hiatal hernias under DC 7346 more accurately encompass his IBS with GERD. See August 2020 hearing transcript. Under DC 7346 for hernia hiatal, a 10 percent rating is granted when two or more of the symptoms for the 30 percent evaluation are present with less severity, a 30 percent disability rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. 38 C.F.R. § 4.114. The maximum 60 percent disability rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Id. The Veteran asserts that the rating criteria for 60 percent under DC 7346 is warranted for his IBS with GERD. The record shows that the Veteran's GERD symptoms included infrequent episodes of epigastric distress, pyrosis (heartburn), and reflux, with no weight loss. Accordingly, during the relevant period on appeal, the Veteran's IBS with GERD did not manifest in the symptoms required for the 30 percent rating criteria under DC 7346, which included persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. The Board further notes that the symptoms required for the 60 percent rating criteria under DC 7346 were similarly not shown, which included symptoms of pain, vomiting, material weight loss, hematemesis, melena with moderate anemia, or other symptom combinations productive of severe impairment of health. As such, prior to March 10, 2015, the evidence of record outlined above demonstrates that the Veteran's IBS with GERD manifested in moderate irritable colon syndrome with frequent episodes of bowel disturbances with abdominal distress. The evidence of record prior to March 10, 2015 fails to show severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation with more or less constant abdominal distress, and a rating in excess of 10 percent is not warranted. In adjudicating the Veteran's claims the Board must assess the competence and credibility of the Veteran. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362 (2005). The Board acknowledges that the Veteran is competent to give evidence about what he observes or experiences concerning the disabilities on appeal. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic code. Competent evidence concerning the nature and extent of the Veteran's disabilities on appeal has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings directly address the criteria under which the Veteran's disabilities are evaluated. The Board finds those records to be the most probative evidence with regard to whether an increased rating is warranted. Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 10 percent for service-connected IBS with GERD prior to March 10, 2015. The preponderance of the evidence is against the claim, so the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. b. Entitlement to a rating in excess of 30 percent for IBS with GERD from March 10, 2015. VA treatment records show that the Veteran was treated for chronic constipation throughout the period on appeal. In a March 2015 DBQ, a private physician noted that the Veteran was diagnosed with IBS. The Veteran reported symptoms of alternating constipation with diarrhea, with diarrhea lasting approximately 4 days to a week, and frequency of bowel movements ranged from 4 to 5 per day to 2 per week. The private physician noted that the Veteran took medication for his stomach conditions as needed. The Veteran reported occasional episodes of bowel disturbance with abdominal distress and 7 or more episodes of exacerbations or attacks of the intestinal condition in the past 12 months. The Veteran did not experience weight loss attributable to an intestinal condition, nor does the record show that he experienced malnutrition, serious complications, tumors, or neoplasms of the intestines. The private physician noted that the Veteran's IBS impacted his ability to work, as he needed to be close to a restroom during exacerbations, but that the Veteran was able to perform general activities without significant restrictions. The Veteran's diagnosis was noted to be a progression of the prior rated disability, as he now experienced watery diarrhea alternating with constipation. In an August 2017 VA gastroenterology consultation, it was noted that the Veteran experienced alternating constipation and diarrhea, rectal bleeding, belching, and abdominal bloating. There was no abdominal or rectal pain, no black or bloody stools, no melena, no hematemesis, and no weight loss. The Veteran underwent a flex sigmoidoscopy in September 2017 that showed normal results. VA treatment records show that in July 2019, the Veteran weighed 223.9 pounds (lbs.). In March 2020, the Veteran weighed approximately 229 lbs. In May 2020, the Veteran reported that he had lost approximately 10 lbs. On July 2020 VA examination for fibromyalgia, the Veteran reported that his IBS symptoms were constant and occurred every other day. During the August 2020 Board hearing, the Veteran reported experiencing constipation, diarrhea, regurgitation, nausea, rectal bleeding, and hemorrhoids due to his IBS with GERD. The Veteran reported that his alternating constipation and diarrhea were in a consistent and severe cycle. The Veteran reported that he had lost 20 lbs. approximately 6 months to one year prior to the hearing. As explained above, DC 7319 is the most analogous to the Veteran's disability of IBS with GERD and symptoms including constipation, diarrhea, regurgitation, nausea, rectal bleeding, and hemorrhoids. 38 C.F.R. § 4.20. The symptoms required for the 60 percent rating criteria under DC 7346 were not shown, which included symptoms of pain, vomiting, material weight loss, hematemesis, melena with moderate anemia, or other symptom combinations productive of severe impairment of health. Under 38 C.F.R. § 4.112, "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. The term "inability to gain weight" means that there has been substantial weight loss with inability to regain it despite appropriate therapy. "Baseline weight" means the average weight for the two-year-period preceding onset of the disease. 38 C.F.R. § 4.112. The Board notes that the Veteran reported that he lost approximately 20 lbs. during the 6 months to 1 year prior to the August 2020 Board hearing. This, however, is not supported by the medical record. Instead, the Veteran's VA treatment records show that his weight fluctuated approximately 10 lbs. in the 6 months to 1 year prior to the August 2020 Board hearing. Furthermore, the March 2015 private physician noted that the Veteran did not experience weight loss attributable to an intestinal condition. As such, the Veteran's weight fluctuation during the relevant period on appeal could at most be described as minor weight loss and would not be characterized as material weight loss. Therefore, none of the rating criteria for 60 percent under DC 7346 have been met during the relevant period on appeal. Accordingly, the Board finds that DC 7319 most accurately encompasses the Veteran's IBS with GERD. As such, a rating in excess of 30 percent is not warranted under DC 7319, as this is the maximum schedular rating available. Moreover, the Veteran's symptoms of alternating constipation with diarrhea, occasional episodes of bowel disturbance with abdominal distress, and 7 or more episodes of exacerbations or attacks of the intestinal condition in the past 12 months are most accurately contemplated by the rating criteria for 30 percent under DC 7319 of alternating diarrhea and constipation with more or less constant abdominal distress. Accordingly, the Board finds that the 30 percent rating under DC 7319 adequately considers the specific nature of the Veteran's disability. The Board again recognizes that the Veteran is competent to attest to things he experiences through his senses. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, the severity of symptoms the Veteran experienced following service that are in any way related to a current disability require medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999). Accordingly, the Board finds that the preponderance of the evidence is against the claim for a rating in excess of 30 percent for service-connected IBS with GERD from March 10, 2015, and the Veteran's claim is denied. The preponderance of the evidence is against the claim, so the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 54-56. REASONS FOR REMAND During the relevant period on appeal, the Veteran has reported that his ability to work has been impacted by his service-connected disabilities, specifically due to his service-connected CFS. See August 2020 Board hearing. Furthermore, the March 2015 private physician also noted that the Veteran's CFS limited his ability to perform only light physical and sedentary activities, and that the Veteran's IBS impacted his ability to work, as he needed to be close to a restroom during exacerbations, but that Veteran was able to perform general activities without significant restrictions. See March 2015 DBQ. If the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating, is whether TDIU is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). Notably, although the Veteran has had a combined 100 percent disability rating from August 8, 2019, a 100 percent disability rating does not necessarily render the issue of a TDIU moot. In Bradley v. Peake, 22 Vet. App. 280, 293-94 (2008), the United States Court of Appeals for Veterans Claims (Court) determined there could be a situation where a veteran has a schedular total rating and could also be entitled to a TDIU for purposes of meeting the requirements for special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s). SMC is warranted for housebound status if a veteran has a single service-connected disability rated as total and additional service-connected disabilities that are independently rated at more than 60 percent combined. A TDIU satisfies the total (100 percent) rating requirement if the TDIU evaluation was, or can be, predicated upon a single disability and there exists additional disability or disabilities independently ratable at 60 percent or more. Accordingly, the Board finds that a claim for TDIU has been reasonably raised by the record and remand is warranted for further development. On remand, the Veteran should be invited to file a formal TDIU claim. The matter is REMANDED for the following actions: 1. Provide the Veteran with a VA Form 21-8940 to obtain updated employment information. Also, notify the Veteran that he can submit lay statements from himself and from other individuals who have first-hand knowledge of the impact of his service-connected disabilities on his ability to work. Provide him with a reasonable time to submit this evidence. (Continued on the next page) 2. Undertake any additional development deemed necessary and adjudicate the issue of entitlement to a TDIU. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Griffin, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.