Citation Nr: 21026969 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 12-19 056 DATE: May 4, 2021 ORDER A rating in excess of 20 percent for lumbar spine facet syndrome prior to August 22, 2013, and in excess of 40 percent thereafter, is denied. For the appeal period prior to January 8, 2020, a 10 percent rating, but no higher, for right lower extremity radiculopathy is granted. For the appeal period prior to January 8, 2020, a 10 percent rating, but no higher, for left lower extremity radiculopathy is granted. For the appeal period beginning January 8, 2020, a rating in excess of 10 percent for right lower extremity radiculopathy is denied. For the appeal period beginning January 8, 2020, a rating in excess of 10 percent for left lower extremity radiculopathy is denied. For the appeal period beginning July 17, 2012, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. REMANDED Entitlement to a total disability rating for individual unemployability (TDIU) on an extraschedular basis prior to July 17, 2012, is remanded. FINDINGS OF FACT 1. For the appeal period prior to August 22, 2013, the Veteran's spine disability has not more nearly approximated forward flexion of the thoracolumbar spine 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome (IVDS). 2. For the appeal period beginning August 22, 2013, the Veteran's spine disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine or incapacitating episodes having a duration of at least 6 weeks in twelve months. 3. For the entire appeal period (both prior to and after January 8, 2020), the Veteran had radiculopathy of the right and left lower extremities manifested by, at worst, mild incomplete paralysis of the sciatic nerve. 4. For the appeal period beginning July 17, 2012, the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for lumbar spine facet syndrome prior to August 22, 2013, and in excess of 40 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5243 (2020). 2. For the appeal period prior to January 8, 2020, the criteria for a 10 percent rating, but no higher, for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.119, 4.124a, Diagnostic Code 8520 (2020). 3. For the appeal period prior to January 8, 2020, the criteria for a 10 percent rating, but no higher, for left lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.119, 4.124a, Diagnostic Code 8520 (2020). 4. For the appeal period beginning January 8, 2020, a rating in excess of 10 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.119, 4.124a, Diagnostic Code 8520 (2020). 5. For the appeal period beginning January 8, 2020, a rating in excess of 10 percent for left lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.119, 4.124a, Diagnostic Code 8520 (2020). 6. For the appeal period beginning July 17, 2012, the criteria for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1976 to July 1981 and from May 1982 to May 2001. These matters are before the Board of Veterans' Appeals (Board) on appeal from a July 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The July 2009 rating decision granted an increased rating for facet syndrome at L4 and L5-S1, from 10 percent to 20 percent, effective February 6, 2009. During the pendency of the appeal, a February 2016 rating decision assigned a 40 percent disability rating effective August 22, 2013. A claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, thus a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). As the Veteran was not awarded the maximum rating for facet syndrome, the issue remains in appellate status. The issues on appeal were previously remanded by the Board in October 2016 in order to provide the Veteran with a notification letter concerning his claim of entitlement to a TDIU and to ascertain the Veteran's correct address and his desire for a Travel Board or videoconference hearing. In a May 2020 statement, the Veteran indicated that he was withdrawing his request for a Board hearing. As such, the Board may proceed with adjudication of the claims at this time. Disability Ratings Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509- 10 (2007). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). It is the intention to recognize actual painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Lumbar Spine Disability The Veteran's lumbar spine disability (diagnosed as facet syndrome) has been rated by analogy under Diagnostic Code 5237 for a lumbosacral strain. The Veteran is currently in receipt of a 20 percent rating for the entire increased rating period prior to August 22, 2013; he is in receipt of a 40 percent rating beginning August 22, 2013. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula) (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (IVDS Formula)). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula provides a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned forward flexion of the thoracolumbar spine 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. The Notes following the General Rating Formula provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula or under the IVDS Formula, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The IVDS Formula provides a 20 percent rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) provides that, if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula, whichever method results in a higher evaluation for that segment. 38 C.F.R. § 4.71a. Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76462 (November 30, 2020) (codified at 38 C.F.R. § 4.71a). When a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021. Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021 forward, applying the most favorable criteria for the Veteran. The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)"; DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre- and post-February 7, 2021 regulations is not required. Upon review of the evidence of record during the relevant rating period on appeal, the Board finds that a rating in excess of 20 percent is not warranted for the rating period prior to August 22, 2013. During a May 2009 VA examination report, the Veteran was found to have flexion of the thoracolumbar spine limited to 50 degrees, with pain starting at 45 degrees. Even considering pain, the Veteran indicated that he was able to function without medication. He also denied any incapacitation due to his back disability. The Veteran further noted that he did not experience any functional impairment from his lumbar spine disability. VA treatment records include an October 2009 physical therapy consult note. At that time, the Veteran was found to have flexion of the thoracolumbar spine limited to 65 degrees. The remaining evidence of record, to include VA treatment records, Social Security Administration (SSA) disability records, and private medical records, continue to show complaints of low back pain, but do not suggest that forward flexion of the thoracolumbar spine was limited to 30 degrees or less or that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine. Even considering additional limitation of motion or function of the spine due to pain or other symptoms such as weakness, fatigability, weakness, or incoordination (see 38 C.F.R. §§ 4.40, 4.45, 4.59, DeLuca), the evidence still does not show that the lumbar spine disability more nearly approximates the criteria for a higher disability rating of 40 percent. The VA examination in 2009 reflects, at worst, flexion to 45 degrees. The Veteran has specifically denied any functional impairment due to his spine disability. Thus, the evidence does not approximate 30 degrees or less of forward flexion even considering any additional limitation or function due to pain or other symptoms to warrant a higher rating. The Board further finds that the evidence of record does not demonstrate that the Veteran has IVDS. As such, there is no evidence of incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months to warrant a higher rating under The Formula for Rating Intervertebral Disc Syndrome. 38 C.F.R. § 4.71a, Diagnostic Code 5243. For these reasons, the Board finds that a rating in excess of 20 percent for the Veteran's spine disability is not warranted for the rating period prior to August 22, 2013. As it pertains to the rating period beginning August 22, 2013, the Board finds that a rating in excess of 40 percent is not more nearly approximated. In this regard, VA examinations conducted in August 2013 and January 2020 did not show that the Veteran's spine was ankylosed. Although IVDS was diagnosed during the 2020 examination, there were no periods of incapacitation requiring physician prescribed bed rest in the last 12 months. The Board acknowledges that the August 2013 VA examiner reported that the Veteran had IVDS resulting in "at least 6 weeks" of incapacitating episodes in the past 12 months. However, the examiner did not indicate whether bed rest had been prescribed by a physician. Moreover, the competent and probative evidence shows that the Veteran was not prescribed bed rest at any point during the period on appeal. Thus, an increased rating based on incapacitating episodes is not warranted under DC 5243. 38 C.F.R. § 4.71a. In sum, the evidence does not show the Veteran's lumbar spine disability was manifested by unfavorable ankylosis (or functional ankylosis) of the entire thoracolumbar spine or of the entire spine. Absence of this evidence precludes the Veteran from meeting the rating criteria for either a 50 or 100 percent rating. There is also no evidence showing bed rest has been prescribed by a physician. As such, a higher rating pursuant to the criteria for evaluating IVDS is not for application. The Board accepts that the Veteran has functional impairment and pain. See DeLuca. The Board also finds the Veteran's own reports of symptomatology to be credible. However, neither the lay nor medical evidence reflects the functional equivalent of limitation of motion nor the functional equivalent of limitation of flexion required to warrant the next higher evaluation. As such, the Board finds that a rating in excess of 40 percent for the lumbar spine disability is not warranted for the appeal period beginning August 22, 2013. Radiculopathy of the Lower Extremities The Veteran is currently in receipt of 10 percent ratings for right and left lower extremity radiculopathy for the appeal period beginning January 8, 2020. See April 2020 rating decision (granting service connection for right and left lower extremity radiculopathy effective January 8, 2020). The Board acknowledges that, while these ratings were not appealed, the Board finds that the ratings for the service-connected radiculopathy of the right and left lower extremity disabilities are part and parcel of the claim for a higher disability rating for the service-connected lumbar spine disability. See 38 C.F.R. § 4.71a, General Rating for Diseases and Injuries of the Spine, Note 1. Therefore, the Board will consider the evaluation of the radiculopathy of the right and left lower extremity in conjunction with the evaluation of the lumbar spine disability that was appealed. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Upon review of the evidence of record, the Board finds that 10 percent ratings, but no higher, are warranted for the entire increased rating period prior to January 8, 2020, for the right and left lower extremity. Although the May 2009 and August 2013 VA examination reports indicated that the Veteran did not have radiculopathy of the lower extremities, the Veteran's private and VA treatment records show some intermittent complaints of radicular pain from his low back to his thighs and knees. See e. g., November 2008 VA primary care note (indicating that the Veteran complained of low back pain radiating to hips); see also May 2013 private treatment record from the Trident Pain Center (noting that the Veteran had pain in the bilateral lumbar paraspinous in a "bandlike" distribution); see also May 2003 VA treatment record (indicating low back pain radiating to knee). For these reasons, and resolving reasonable doubt in the Veteran's favor, the Board finds that 10 percent ratings are warranted for mild, intermittent, radiculopathy of the right and left lower extremities for the appeal period prior to August 22, 2013. The Board further finds that ratings in excess of 10 percent are not warranted for the entire appeal period. The January 2020 VA examiner specifically indicated that the Veteran had bilateral lower extremity radiculopathy affecting the sciatic nerve roots of "mild" severity. The remaining evidence of record indicates that the Veteran's radiculopathy was intermittent and does not demonstrate that his symptoms more nearly approximated moderate incomplete paralysis of the sciatic nerve roots. As such, ratings in excess of 10 percent are not warranted for the entire appeal period. TDIULaws and Analysis A veteran may be awarded a TDIU upon a showing that he is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating 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, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran's service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In determining whether a veteran is entitled to a TDIU, neither his or her nonservice-connected disabilities nor age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether a veteran, as a result of his or her service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The evidence indicates that the Veteran is unemployable due to his service-connected disabilities. Although a formal TDIU application (VA Form 21-8940), has not been submitted, the evidence shows that the Veteran last worked in 2008 (prior to the current appeal period). SSA records and VA examination reports of record show that the Veteran last worked in 2008 as a truck driver and that he has obtained a 4 or more years of college. The Veteran is currently in receipt of Social Security Administration disability benefits since 2012. In light of the Board's decision herein (i. e., granting 10 percent ratings for radiculopathy prior to January 8, 2020), the Veteran now meets the schedular criteria for a TDIU beginning July 17, 2012 as a result of his service-connected posttraumatic stress disorder (PTSD), lumbar spine, and radiculopathy disabilities (rated at a combined 70 percent rating). 38 C.F.R. § 4.16 (a). The evidence relevant to the Veteran's unemployability includes a November 2012 VA psychiatric examination report. At that time, the examiner indicated that the Veteran's PTSD impacted his ability to work. Specifically, it was noted that the Veteran's PTSD symptoms made it difficult for the Veteran to become motivated to leave the house. He reported feeling sad, helpless, and overwhelmed. Moreover, the Veteran reported that he could no longer work as a truck driver due to his back pain. During an August 2013 VA spine examination, the examiner noted that the Veteran's spine disability resulted in functional limitations, including an inability to lift more than 20 pounds, walk more than a 14 mile, or stand or sit for more than 15 minutes. SSA disability records also show that the Veteran has been found disabled as of September 2012 due to his service-connected lumbar spine and psychiatric disabilities. The Board finds the VA examination reports and SSA records to be highly probative as to the Veteran's mental and physical health history and occupational history. Based on this evidence, in addition to the Veteran's work and educational history, and resolving reasonable doubt in his favor, the Board finds that entitlement to a TDIU is warranted for the rating period beginning July 17, 2012. REASONS FOR REMAND As noted above, the Veteran met the schedular TDIU criteria as of July 17, 2012 (i. e., as of the effective date for the grant of service connection for PTSD). When the schedular TDIU requirements are not met, however, entitlement to a TDIU on an extraschedular basis may still be granted. See 38 C.F.R. § 4.16 (b). In this regard, the Board notes that neither the AOJ nor the Board is authorized to assign an extraschedular TDIU in the first instance under 38 C.F.R. § 4.16 (b). See Wages v. McDonald, 27 Vet. App. 233 (2015). Rather, the regulation requires that, in cases of veterans who are unemployable by reason of service-connected disabilities and who fail to meet the threshold percentage requirements discussed above, the case is to be submitted to VA's Director of Compensation Service for consideration of whether entitlement to a TDIU is warranted on an extraschedular basis. See 38 C.F.R. § 4.16 (b). As such, the Board concludes that submission to the Director of Compensation Service for extraschedular consideration is warranted for the period prior to July 17, 2012. The evidence of record, to include the Veteran's lay statements, indicates that the Veteran stopped working in 2008 presumably due to his service-connected spine disability. As such, based on the evidence of record, the Board concludes that remand is required to submit the Veteran's case to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b). The matters are REMANDED for the following actions: 1. Submit the Veteran's case to the Director of Compensation Service for consideration of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b) for the rating period prior to July 17, 2012. 2. Then, readjudicate the claim on appeal. (Continued on the next page) T. Berry Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Casadei, 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.