Citation Nr: 21026843 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 17-44 267 DATE: May 4, 2021 ORDER Entitlement to an initial disability rating of 100 percent for Meniere's syndrome, which encompasses, vertigo, tinnitus, and hearing impairment from October 10, 2001, is granted. The separate 10 percent rating for tinnitus is discontinued effective October 10, 2001. The separate noncompensable rating for bilateral hearing loss is discontinued effective October 10, 2001. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance of another (A&A) from October 10, 2001, is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is dismissed. FINDINGS OF FACT 1. The Veteran's service-connected Meniere's syndrome was manifested by hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, from October 10, 2001. 2. The 100 percent disability rating for Meniere's syndrome is greater than the combined effects of the 30 percent for Meniere's syndrome, 10 percent rating for tinnitus, and noncompensable percent rating for bilateral hearing loss that was previously assigned. 3. Resolving all reasonable doubt in favor of the Veteran, his disabilities leave him in need of regular aid and attendance of another person from October 10, 2001. 4. The award of a 100 percent rating for service-connected Meniere's syndrome and SMC A&A for the entire appeal period has rendered the issue of entitlement to a TDIU moot. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 100 percent rating for Meniere's syndrome, which encompasses vertigo, tinnitus, and hearing impairment from October 10, 2001, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.87, Diagnostic Code 6205. 2. The criteria to discontinue the separate 10 percent rating for tinnitus from October 10, 2001, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107. 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, 4.87, Diagnostic Code 6205, 6260. 3. The criteria to discontinue the separate noncompensable rating for bilateral sensorineural hearing loss from October 10, 2001, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107. 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.85, 4.87, Diagnostic Code 6205, 6100. 4. The criteria for entitlement to SMC based on the need for regular A&A from October 10, 2001, have been met. 38 U.S.C. §§ 1114 (l), 5107(b); 38 C.F.R. §§ 3.102, 3.350(b), 3.352(a). 5. The grant of the 100 percent rating for Meniere's syndrome and SMC A&A for the entire appeal period renders the issue for a TDIU moot and the claim is dismissed. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16; 38 U.S.C. § 7105; 38 C.F.R. § 20.101 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1951 to March 1953. The Veteran passed away in January 2016 and the appellant is his surviving spouse. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2). This matter was previously before the Board in December 2018, wherein the Board granted a 30 percent evaluation for Meniere's syndrome. The appellant appealed this decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2019 Joint Motion for Partial Remand (JMPR), the parties agreed that part of the December 2018 Board decision should be vacated to the extent that the Board denied a rating in excess of 30 percent for service-connected Meniere's syndrome. The Court also stated that the issue of entitlement of a TDIU was raised by the evidence of record. The matter was before the Board in October 2020 and the issues were remanded to allow for the RO to obtain Social Security Administration (SSA) records. The RO received a response from SSA in October 2020 that there were no available records for the Veteran. The matter has returned to the Board for adjudication. 1. Entitlement to an initial disability rating of 100 percent for Meniere's syndrome from October 10, 2001 The appellant contends that the Veteran's service-connected Meniere's syndrome warrants a higher rating than the initial 30 percent rating that was assigned. By way of history, the Veteran was granted service connection for Meniere's syndrome with vertigo by way of an August 2015 Board decision. In September 2015, the RO effectuated the grant and assigned a 0 percent evaluation from the original date of claim, October 10, 2001. The Veteran appealed the decision that granted the 0 percent evaluation. In December 2018, the Board granted a higher evaluation of 30 percent for Meniere's syndrome. The Veteran is also service connected for tinnitus rated at 10 percent from October 28, 1993 and bilateral hearing loss rated as noncompensable from July 5, 2000. Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Parts 4. When rating a service-connected disability, the entire history must be considered. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board must consider entitlement to "staged" ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Under Diagnostic Code 6205, a 30 percent rating is warranted for hearing impairment with vertigo less than once a month, with or without tinnitus; a 60 percent rating is warranted for hearing impairment with attacks of vertigo and cerebellar gait occurring from one to four times a month, with or without tinnitus; and, a 100 percent rating is assigned for hearing impairment with attacks of vertigo and cerebellar gait occurring more than once weekly, with or without tinnitus. 38 C.F.R. § 4.88a. A note indicates that the Meniere's syndrome can also be evaluated either under these criteria or by separately evaluating vertigo (as a peripheral vestibular disorder) under Diagnostic Code 6204, hearing impairment under Diagnostic Code 6100, and tinnitus under Diagnostic Code 6260, whichever method results in a higher overall rating. However, the note indicates not to combine a rating for hearing impairment, tinnitus, or vertigo with a rating under Diagnostic Code 6205 for Meniere's syndrome. 38 C.F.R. § 4.87, Diagnostic Code 6205. A cerebellar gait is "a staggering ataxic gait, sometimes with a tendency to fall to one side." See Dorland's Illustrated Medical Dictionary 753 (32nd Ed. 2012). An "ataxic gait" is "an unsteady, uncoordinated walk, with a wide base and the feet thrown out, due to some form of ataxia." See Id. The December 2018 Board decision granted a 30 percent rating from the Veteran's initial date of service connection, October 10, 2001, under Diagnostic Code 6204. The Board found that a higher rating of 60 percent under Diagnostic Code 6205 was not warranted as the record did not show that the Veteran had a cerebellar gait. In the September 2019 JMPR, the Court stated that the Board did not provide an adequate statement of reasons or bases when it determined that a 30 percent rating, but no higher, for service-connected Meniere's syndrome was warranted because it did not discuss potentially favorable evidence. The Court stated that the Board did not adequately discuss the following evidence of record that may potentially show cerebellar gait: 1) his gait was described as ataxic by T.E. in December 2000 and by C.S. in January 2001; 2) his gait was noted as "unsteady" in February 2008 by L.M., in June 2010 by P.B., in October 2015 by A.S., and in November 2015 by A.S.; and 3) there were reports that he was a high fall risk in the record. See December 2012 report by T.M. and December 2012 report by C.S. Additionally, statements from the Veteran's pastor, son, daughter, and spouse note that the Veteran's gait was unsteady, and he was at risk of falling. See December 2020 Buddy Statements. The Board finds that based on the above-mentioned medical professional assessments and competent lay statements, there is evidence that the Veteran had a cerebellar gait associated with his service-connected Meniere's syndrome. The Veteran's gait was found to be unsteady and described as ataxic throughout the appeal period. He was also found to be in the high fall risk category. In a December 2000 VA treatment record, the Veteran stated that his "staggering" has not resolved. He reports that he fell a few weeks prior. The Veteran reported in August 2001 that he gets dizzy sometimes and feels like he may pass out. A July 2002 VA treatment record documented that the Veteran had problems with falls. The physician indicated that the vertigo has limited his ability to drive an automobile and has resulted in falls. The Veteran reported that he is afraid that he might pass out and fall back and hit his head, so he has been using a wheelchair. The VA examiner noted that it appears that in place of vertigo or Meniere's syndrome the Veteran actually had problems with his heart that have been corrected with a pacemaker leading to the correction of these problems. Nevertheless, despite this statement from the VA examiner, the evidence of record shows that the Veteran's symptoms are related to his in-service event and that he has continued to experience dizziness throughout the appeal period as will be discussed in detail below. A December 2002 private treatment record from Dr. J.D. noted that the Veteran reported vertigo for a prolonged period of time. The Veteran was afforded a VA examination in June 2003. The Veteran reported that he used to fall backwards and would hit his head but since they put in a pacemaker six years ago, he has not fallen backwards and hit his head again. However, he thinks he did fall last month when he came to the hospital. An April 2007 VA treatment record notes a history of falls with the last being on Sunday due to dizziness. In February 2008, the Veteran stated he fell but was not injured. He indicated that he often falls due to gait being unsteady and transfers. In April 2008, the Veteran reported that he had fallen in the past twelve months but was unsure as to how many times. He also indicated that dizziness contributed to his falls. See April 2008 VA treatment record. A May 2008 VA treatment record document that the Veteran had a history of frequent falling and dizzy spells. He reported that he was frequently falling, with the last fall being on Friday. He stated that when he gets up his is still dizzy and falls. See May 2008 VA treatment record. The Veteran stated in an April 2009 VA treatment record that he has dizziness "pretty much all the time." A June 2009 VA treatment record shows that the Veteran reported he has been dizzy, with difficulty standing at times. He indicated in a July 2009 VA treatment record hat he has vertigo and balance issues. The Veteran stated that when walking at home he will lose his balance and then fall backwards and has fallen twice in the last month. He stated that sometimes he will fall even if someone is standing right next to him. See June 2010 VA treatment record. In January 2011, the Veteran reported that he was at a rest stop and went to the rest room and while voiding he felt dizzy and fell. He also stated that he was dizzy with position changes and has been falling down since the 1950's. See January 2011 VA treatment record. In a March 2011 VA treatment record, the Veteran was seen for a recent fall due to dizziness. He said that while he was not experiencing it at this moment, he does so intermittently. The Veteran reported in a September 2011 VA treatment record that he has dizziness "at any time." The Board notes that correspondence from Dr. A.A. in January 2012 indicated that the Veteran suffers from chronic otitis, hearing loss, tinnitus, and vertigo. She opined that it is more likely than not that the Veteran's ongoing problems with this symptom list had their origins in service, with a sinus infection and subsequent rupture of both tympanic membranes. She noted that it is not unreasonable to label this as Meniere's disease as the constellation of symptoms fit, and per NIH literature, it is likely to develop Meniere's disease from middle or inner ear infections; she believed that it does more justice to the Veteran's complicated medical profile to not assign a name or syndrome, but to simply understand that the Veteran's suffers from chronic otitis, hearing loss, tinnitus, and vertigo- all of which are interrelated and stemmed from his in-service injury. The Veteran reported having dizziness "when I stand up." See January 2013 VA treatment record. A November 2014 private treatment record from Virginia Veterans Care Center showed that the Veteran had complaints of dizziness and he reported having some dizziness before his fall in the morning. An October 2015 VA treatment emergency room record showed that the Veteran had unsteady gait and reported dizziness at admission. In December 2020, the Veteran's representative submitted statements on behalf of the Veteran from his pastor, son, daughter, and the appellant. The Veteran's stated that in the late 1990's the Veteran walked and stood with a wide stance with his feet pointed out and he would stagger to the side sometimes. He noted that he recalled the Veteran and the appellant mentioning that he fell a lot, but he did not recall him falling in front of him. The Veteran's son also submitted a statement that in the late 1990's he noticed his father's deterioration in his walking. The Veteran walked with a wide stance with his feet turned out at an angle and he did not walk in a straight line. He stated that after awhile it was so bad that he could no longer go to a simple garage or yard sale without staggering or falling into something. The Veteran's daughter attested to her father walking with a wide stance and that he staggered a lot almost daily and about once a week he would fall. She also noted that even when the Veteran was using a walker or a cane, he would often stagger or fall. The appellant submitted a statement that the Veteran walked for several years with a cerebellar gait, even prior to October 2001. She noted that he had a staggering ataxic gait (unsteady, uncoordinated walk, with a wide base and the feet thrown out). She stated that he staggered quite a bit, at least on a weekly basis, and he often fell. See December 2020 Buddy Statements. Based on the evidence noted above, the Board finds that the Veteran experienced attacks of vertigo and cerebellar gait occurring more than once weekly with or without tinnitus as is required for a 100 percent rating under Diagnostic Code 6205. Although the evidence also shows that the Veteran had other co-morbid non-service connected disabilities that may have attributed to his unsteady gait, the evidence also shows that the Veteran's cerebellar gait was attributed to his service-connected Meniere's syndrome. Thus, after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for an initial 100 percent rating from October 10, 2001, for Meniere's disease have been met. See also 38 C.F.R. § 3.102. However, the Board must also address the separate ratings that were assigned for tinnitus and bilateral hearing loss. A 100 percent rating under Diagnostic Code 6205 is greater than the combined effects of a 30 percent rating under Diagnostic Code 6204 for a peripheral vestibular disorder, 0 percent rating for hearing loss, and 10 percent rating for tinnitus. Because the Board is assigning a 100 percent rating under Diagnostic Code 6205, it is appropriate to discontinue the 10 percent rating for tinnitus and the 0 percent rating for bilateral hearing loss. The Board's actions in doing so are proper and are not a reduction because the Veteran's overall rating for the different manifestations of his ear disability are being combined, labeled, and increased under Diagnostic Code 6205, and there is no reduction in rating or severance of service connection from a change in the diagnostic code to more accurately reflect the proper diagnosis. Murray v. Shinseki, 24 Vet. App. 420, 428 (2011); see also Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011). Maintaining the separate ratings for tinnitus and hearing loss would be inconsistent with the note under Diagnostic Code 6205. The Veteran is either allowed one rating under Meniere's disease that encompasses hearing loss, vertigo, and tinnitus, or separate ratings for hearing loss, vertigo, and tinnitus without an additional rating for Meniere's disease. Assigning a 100 percent rating for Meniere's disease without disallowing the 10 percent tinnitus rating or the 0 percent bilateral hearing loss rating would violate this rule, and the larger premise of pyramiding. See Esteban v. Brown, 6 Vet. App. 259 (1994); 38 C.F.R. § 4.14. Therefore, the Board grants a 100 percent rating for Meniere's syndrome under Diagnostic Code 6205 that encompasses the Veteran's hearing impairment, vertigo, and tinnitus, effective October 10, 2001. Accordingly, the separate ratings for tinnitus and bilateral hearing loss are discontinued from October 10, 2001. 2. Entitlement to SMC based on the need for regular A&A, from October 10, 2001 In December 2020, the appellant's representative raised the issue of entitlement to special monthly compensation based on the need for aid and attendance. The Court has held that SMC is an ancillary benefit the Board may address in the first instance when reasonably raised by the record, regardless of whether a formal claim has been filed. Payne v. Wilkie, 31 Vet. App. 373 (2019). Thus, the Board has added the issue to the appeal as shown above. From October 2001, the Veteran is service connected for Meniere's syndrome evaluated at 100 percent, major depressive disorder evaluated at 30 percent, tinnitus evaluated at 10 percent, chronic otitis media evaluated at 0 percent, residuals of left eardrum perforation evaluated at 0 percent, bilateral hearing loss evaluated at 0 percent, and sinusitis with headaches evaluated at 0 percent. SMC is available when, as the result of a service-connected disability(ies), a Veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. See 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350 and 3.352. The rate of SMC varies according to the nature of the Veteran's service-connected disabilities. SMC is payable if, as the result of service-connected disabilities, the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). SMC based on aid and attendance is assigned when there is a factual need for aid and attendance or when the Veteran is permanently bedridden. Criteria for establishing such need include whether the Veteran is permanently bedridden or is so helpless as to be in need of regular aid and attendance as determined under criteria enumerated under 38 C.F.R. § 3.352(a). Under 38 C.F.R. § 3.352(a), the following factors will be considered when determining whether the Veteran is in need of regular aid and attendance of another person: (1) inability of the Veteran to dress or undress herself, or to keep herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without such aid; (3) inability of the Veteran to feed herself because of the loss of coordination of upper extremities or because of extreme weakness; (4) inability to attend to the wants of nature (including urination or defecation and cleanup); or (5) physical or mental incapacity which requires care or assistance on a regular basis to protect the Veteran from the hazards or dangers incident to her daily environment. 38 C.F.R. § 3.352(a). It is not required that all the factors enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made. The particular functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need for aid and attendance. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in 38 C.F.R. § 3.352 (a) must be present to grant special monthly compensation based on the need for aid and attendance). For the purposes of 38 C.F.R. § 3.352(a), "bedridden" actually requires that the claimant remain in bed; the fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352 (a). A May 2001 VA treatment record notes that the Veteran relied on family for transportation as Veteran does not drive secondary to syncopal episodes. A December 2012 VA treatment record documented that the Veteran reported that he has help with all of his self-care from his wife, and has since the 1970's. In support of the claim for A&A, the Veteran's daughter submitted a statement in December 2020 that indicated due to the configuration of the Veteran's home, his wheelchair could not be used very much. The Veteran's daughter stated that it was probably the mid to late 1990's that the Veteran started to begin using aids such as canes, walkers, or wheelchairs to get around. She also stated that the pathway from his bed to the breakfast bar or bathroom was set up so that he could hold on to things, such as a wall or an appliance, which assisted him in walking. She would also take him to his VA appointments as he could no longer drive due to his instability, vertigo, and dizziness. Regarding his psychiatric disability, the daughter reported that he had difficulty with simple tasks, including maintaining personal hygiene, due to his psychiatric symptoms and lack of motivation. A February 2020 Vocational Assessment also indicated that the Veteran relied on his daughter to complete all daily chores. She would do the cooking, cleaning, laundry, grocery shopping and pay the monthly bills. Particularly, for the last few years, the Veteran had the care of a nurse who came weekly to assist with bathing and maintaining hygiene. The Board gives probative weight to the Veteran's daughter's statements and the February 2020 Vocational Assessment describing the Veteran requiring assistance with activities of daily living. See Layno v. Brown, 6 Vet. App. 465 (1994). The preponderance of the evidence supports finding the Veteran's service-connected disabilities meet the criteria for SMC based on the need for aid and attendance under 38 U.S.C. § 1114(l). Specifically, there is competent and probative evidence showing the Veteran requires assistance with bathing and grooming and required care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). As such, the Board finds the Veteran is entitled to SMC based on a need for regular aid and attendance under 38 U.S.C. § 1114(l), effective October 10, 2001. 3. Entitlement to a TDIU The September 2019 JMPR determined that the issue of entitlement to a TDIU was raised as part and parcel of the Veteran's claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Court has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). Thus, if VA has found a veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate the Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where 100 percent schedular rating was awarded for the same period). However, a grant of a 100 percent disability does not always render the issue of a TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC under 38 U.S.C. § 1114. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Special monthly compensation (SMC) at the housebound rate is warranted when a veteran has a single service-connected disability rated as 100 percent disabling and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Housebound status is defined as being when the veteran is substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises and it is reasonably certain the disability or disabilities and resultant confinement will continue throughout his lifetime. Id. With the grant of the 100 percent evaluation for the Veteran's service-connected Meniere's syndrome, the Veteran has been in receipt of a combined schedular 100 percent disability rating for his service-connected disabilities and SMC based on the need for aid and attendance since October 10, 2001. SMC based on the need of regular aid and attendance under 38 U.S.C. § 1114(l) is paid at a higher rate than the benefit for SMC based on statutory housebound status under 38 U.S.C. § 1114(s). Accordingly, the SMC already established at the "(l)" rate effectively renders moot the issue of entitlement to SMC at the "(s)" or housebound rate as of October 10, 2001. Therefore, the potential for SMC as discussed in Buie and Bradley is not applicable. As consideration of a TDIU for the period since October 10, 2001 would result in no additional discernable benefit to the Veteran, the issue is moot. See 38 U.S.C. § 7105; 38 C.F.R. § 20.101. Sabonis v. Brown, 6 Vet. App. 426 (1994). MARJORIE A. AUER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Kim, 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.