Citation Nr: 21027194 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 18-50 686 DATE: May 4, 2021 ORDER New and material evidence has been received to reopen the claim of service connection for hypertension, as secondary to PTSD; the claim is reopened. New and material evidence has been received to reopen the claim of service connection for a kidney disability, to include as secondary to herbicide exposure; the claim is reopened. Entitlement to service connection for focal segmental glomerular sclerosis is granted. Entitlement to a total disability rating based on unemployability (TDIU) is granted. REMANDED Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. Entitlement to service connection for melanoma skin cancer on the back, to include as due to herbicide and sunlight exposure in service, is remanded. Entitlement to service connection for squamous cell carcinoma, to include as due to herbicide and sunlight exposure in service, is remanded. Entitlement to service connection for a scar as secondary to squamous cell carcinoma removal surgery is remanded. Entitlement to service connection for hypertension, to include as secondary to PTSD or in the alternative, to a kidney disability, is remanded. FINDINGS OF FACT 1. The evidence associated with the claims file following the last final March 2012 rating decision pertaining to the Veteran's claim for hypertension as secondary to PTSD is new and material, as it relates to a necessary element of service connection. 2. The evidence associated with the claims file following the last final March 2012 rating decision pertaining to the Veteran's claim for a kidney disability, to include as due to herbicide exposure, is new and material, as it relates to a necessary element of service connection. 3. Resolving all reasonable doubt in the Veteran's favor, his focal segmental glomerular sclerosis is due to a disease, event, or injury in service, to include exposure to Agent Orange. 4. The preponderance of the evidence shows that the Veteran was unable to obtain or maintain substantial, gainful employment due to his service-connected PTSD for the period prior to November 10, 2014, and from March 1, 2015 to July 1, 2015. CONCLUSIONS OF LAW 1. The evidence received subsequent to last final rating decision for service connection of hypertension is new and material, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2019). 2. The evidence received subsequent to last final rating decision for service connection of a kidney disability is new and material, and the claim is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. §§ 3.156, 20.1103 (2019). 3. The criteria for entitlement to service connection for a kidney disability, diagnosed as focal segmental glomerular sclerosis, have been met. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.307, 3.309 (2019). 4. The criteria for entitlement to TDIU have been met for the period prior to November 10, 2014, and from March 1, 2015 to July 1, 2015. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1964 to September 1966. This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2014, March 2015, and June 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned during a September 2020 hearing before the undersigned. The hearing transcript is of record. New and Material Generally, a claim that has been denied in an unappealed Board or rating decision may not thereafter be reopened and allowed. 38 C.F.R. §§ 20.1100, 20.1103. The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decisionmakers. Material evidence means 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 previously of record and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of the AOJ's actions, the Board has a legal duty under 38 U.S.C. § 5108 to address the question of whether new and material evidence has been received to reopen the claim for service connection. This matter goes to the Board's jurisdiction to reach the underlying claim and adjudicate the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The regulation does not require new and material evidence as to each previously unproven element of a claim and creates a low threshold for reopening claims. 38 C.F.R. § 3.156(a); Shade v. Shinseki, 24 Vet. App. 110 (2010). 1. Whether new and material evidence has been received to reopen the claim of service connection for hypertension, to include as secondary to PTSD The AOJ denied the Veteran's claim of entitlement to service connection for hypertension as secondary to PTSD in a March 2012 rating decision. A notice of said decision with an explanation was sent to the Veteran, also in March 2012. As no new and material evidence was submitted within a year of this decision, and the Veteran did not appeal within this period, the decision became final. 38 U.S.C. § 7105, 38 C.F.R. §§ 3.160(d), 20.1100. The Veteran did file a petition to reopen the claim in an October 2013 statement. In a September 2014 rating decision, the AOJ reopened and denied the claim of service connection for hypertension, on the basis that new and material evidence had been received but that the elements of service connection to establish the underlying claim had not been met. The Board notes, however, that it is within the Board's original jurisdiction to decide whether or not to reopen a claim on the basis of receipt of new and material evidence, and must review the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The evidence of record at the time of the March 2012 rating decision included the Veteran's service treatment records, confirming the Veteran's Vietnam service and presumptive exposure to Agent Orange. The Veteran's personnel records were also of record, as well as post-service medical records including VA treatment records containing a diagnosis of hypertension, which was originally diagnosed in October 2009. See VA treatment records. There was also a negative VA etiological opinion dated in October 2011 of record, focusing on secondary service connection of hypertension. The basis for the denial of the claim in March 2012 was that there was no evidence of an in-service incurrence of hypertension. It was also found that there is no nexus to PTSD on the basis of the October 2011 VA opinion, which reasoned that the hypertension was diagnosed prior to the Veteran's PTSD, and that the medical literature does not support a nexus between PTSD and hypertension. Relevant evidence received since the March 2012 rating decision includes additional VA medical records, a negative VA opinion in 2014, hearing testimony before the undersigned, as well as lay statements. However, the record also pertinently includes a letter from the Veteran received in April 2014, in which the Veteran indicates that his hypertension may have been caused by Agent Orange exposure, with Focal Segmental Glomulosclerosis (FSGS), a kidney condition, as an intermediary step. Further, the Veteran indicated in said letter that his exposure to Agent Orange in service was significant, and questioned whether subsequent blood pressure readings were within a normal range. This evidence was not of record at the time of the last final rating decision. Further, this evidence relates to unestablished facts necessary to support the claims, namely a causal relationship or medical nexus between the Veteran's hypertension and his active service or a kidney disability for which service connection is granted herein. Thus, the Board finds the evidence is both new and material. See 38 C.F.R. §§ 3.156(a), 3.303; Shade, 24 Vet. App. at 122. Therefore, the claim is reopened. 2. Whether new and material evidence has been received to reopen the claim of service connection for a kidney disability, to include as secondary to herbicide exposure The AOJ denied the Veteran's claim of entitlement to service connection for a kidney disability in a March 2012 rating decision. A notice of said decision with an explanation was sent to the Veteran, also in March 2012. As no new and material evidence was submitted within a year of this decision, and the Veteran did not appeal within this period, the decision became final. 38 U.S.C. § 7105, 38 C.F.R. §§ 3.160(d), 20.1100. The Veteran did file a petition to reopen the claim in an October 2013 statement. In a September 2014 rating decision, the AOJ denied the claim of service connection for a kidney disability, and the denial was continued in a March 2015 rating decision. It was also specified that the Veteran's September 2013 claim for FSGS, a kidney disability, was taken as a separate claim from the previously denied kidney condition. Service connection for FSGS was initially denied in a September 2014 rating decision. This was in error, as the claims for FSGS and a kidney disability constitute the same claim. See Clemons v. Shenseki, 23 Vet. App. 1 (2009). Furthermore, the September 2014 rating decision denying service connection for FSGS was unappealed. The Board also notes that it is within the Board's original jurisdiction to decide whether or not to reopen a claim on the basis of receipt of new and material evidence, and must review the claim on a de novo basis. See Barnett v. Brown, 83 F. 3d 1380, 1383 (Fed. Cir. 1996). The evidence of record at the time of the March 2012 rating decision included the Veteran's service treatment records, confirming the Veteran's Vietnam service and presumptive exposure to Agent Orange. The Veteran's personnel records were also of record, as well as post-service medical records including VA treatment records dated in February 2010 showing that the Veteran had nephrotic range proteinuria from secondary FSGS, noted to be likely related to long-standing hypertension. See VA treatment records. The basis for the denial of the claim was that there was no evidence of an in-service incurrence of a kidney condition and no nexus to service. It was also found that there is no nexus to hypertension on the basis that hypertension is not service connected. Relevant evidence received since the March 2012 rating decision includes additional VA medical records, hearing testimony before the undersigned, as well as lay statements. However, the record also pertinently includes a July 2014 medical opinion from a VA nephrologist, Dr. R. H., who opines that the Veteran's herbicide exposure in service triggered his kidney disease (FSGS), via the intermediary step of accelerated renal atherosclerotic vascular disease. This evidence was not of record at the time of the last final rating decision. Further, this evidence relates to unestablished facts necessary to support the claims, namely a causal relationship or "medical nexus" between the Veteran's kidney disability and his active service. Thus, the Board finds the evidence is both new and material. See 38 C.F.R. §§ 3.156(a), 3.303; Shade, 24 Vet. App. at 122. Therefore, the claim is reopened. SERVICE CONNECTION Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. "To establish a right to compensation for a present disability, a veteran must show: (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 servicethe so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). A veteran who served in the Republic of Vietnam during the requisite time period is presumed to have been exposed during such service to certain herbicide agents (e.g., Agent Orange). In the case of such a veteran, service incurrence for certain diseases is presumed if they are manifest to a compensable degree within specified periods, even if there is no record of such disease during service. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a)(6), 3.309(e). Even without a diagnosed presumptive condition, a veteran is entitled to service connection if he can establish that a disability warrants service connection on a direct-incurrence basis. See Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). 1. Entitlement to service connection for kidney disease, to include as due to herbicide exposure The Veteran maintains that his kidney disability is the result of his active service, including his exposure to herbicides during his service in Vietnam. See September 2020 hearing transcript. He asserted that he was exposed to Agent Orange during service. Initially, the Board notes the Veteran's service personnel records (SPRs) show that he served in Vietnam and thus, exposure to herbicides is presumed. Review of the Veteran's medical record reflects that he is diagnosed with a kidney disability, and specifically, focal segmental glomerular sclerosis (FSGS), identified during a December 2009 biopsy. Although this kidney disability is not a presumptive condition, direct service connection may still be established, including if a nexus to his herbicide exposure is supported. The Board is cognizant that the Veteran was not afforded a VA kidney examination. However, the Board also notes that there is a positive medical opinion of record dated in July 2014, written by a VA nephrologist. The examiner reviewed the Veteran's medical records and opined that the Veteran's herbicide exposure has been associated with atherosclerotic vascular disease, which in turn, triggered his FSGS. The provider explains that after an exhaustive evaluation of contributing causes to progressive renal disease, he believes the Veteran's FSGS was triggered by the intrinsic renal microvascular disease leading to heavy nephrotic range proteinuria, nephrotic syndrome, and worsening renal function. The Board as a matter of course does not develop negative evidence. As there is a probative positive nexus opinion of record, a remand for further development is deemed unnecessary. Furthermore, as the claim is granted herein, to the extent there is a lacking VA examination, any such duty to assist deficiency constitutes harmless error. 38 C.F.R. § 20.1102. The Board finds the medical opinion of Dr. R.H. compelling and determines the Veteran's kidney disorder is related to service, including his exposure to Agent Orange. The Board finds the medical opinion to be persuasive and of the greatest probative value. It is supported by medical literature and presents an accurate history with well-reasoned explanations. When resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran's kidney disease, diagnosed as focal segmental glomerular sclerosis, is related to his active service. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Accordingly, service connection is warranted for focal segmental glomerular sclerosis. 2. Entitlement to a total disability rating based on unemployability (TDIU) The Veteran filed his claim for a TDIU in September 2013. He claimed his unemployability as a result of his service-connected PTSD disability. See Form 21-8940. The Board notes that the Veteran is service connected for PTSD, evaluated as 100 percent disabling from April 12, 2011, and as 70 percent disabling from July 16, 2013. Throughout the appellate period, the Veteran is also service-connected for coronary artery disease, evaluated as 60 percent disabling from November 7, 2014, as 100 percent disabling from November 10, 2014, and as 60 percent disabling from March 1, 2015; he is service-connected for prostate cancer, evaluated as 100 percent disabling from July 1, 2015, and as 60 percent disabling from October 1, 2020. The Veteran is also service-connected for tinnitus, evaluated as 10 percent disabling throughout the appellate period, as well as bilateral hearing loss and erectile dysfunction, evaluated as noncompensably disabling. A 100 percent schedular rating is a higher benefit than TDIU; thus, in general, when a 100 percent rating has been granted, a TDIU claim is moot. This is not universally true, however, as recognized by the Court in Bradley v. Peake, 22 Vet. App. 280 (2008). In that case, it was held that where TDIU could be granted based on a disability other than the one rated at 100 percent disabling, there would be no duplicate counting of disabilities for both the TDIU and the schedular total rating to remain in effect. The Veteran has had single disabilities other than PTSD evaluated as 100 percent disabling from November 10, 2014 to March 1, 2015, and from July 1, 2015 to October 1, 2020. The Board also notes that the Veteran's combined schedular evaluation from September 2013 to November 7, 2014 is 70 percent; 100 percent from November 7, 2014 to March 1, 2015; 90 percent from March 1, 2015 to July 1, 2015; and 100 percent thereafter. Furthermore, special monthly compensation has been awarded for those periods when the Veteran has been in receipt of a 100 percent combined schedular evaluation. As such, during these periods, the 100 percent schedular awards moot the TDIU claim. However, for the period prior to November 10, 2014; and from March 1, 2015 to July 1, 2015, the award of a TDIU remains at issue. The Board reiterates that it has been the Veteran's consistent contention, both in sworn testimony as well as claim documents that his unemployability is caused by his service-connected PTSD. The Board notes that the Veteran meets the criteria for consideration for entitlement to a TDIU on a schedular basis throughout the appellate periods in question. 38 C.F.R. § 4.16(a). Consequently, the Board must determine whether the Veteran's service-connected disability has precluded him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). After review of the evidence, the Board concludes that the Veteran's service-connected PTSD, during the relevant appellate periods, has been as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. 38 C.F.R. §§ 3.340, 4.16(a). The Veteran last worked full-time in December 2010. The submitted VA Form 21-8940 indicated that he worked as a manager at a dry-cleaning company. This form also reflects that he has four years of college education. Review of the evidence of record shows pertinently that the Veteran was afforded a VA PTSD examination in July 2013. The examiner noted that the Veteran experienced sleep difficulties which could compromise his daytime functioning. It was noted that his exposure to triggers renders him dysfunctional, something which would make consistent employment difficult. The examiner further reported that the Veteran isolates himself and does not enjoy the company of others. The Board also acknowledges the Veteran's testimony during the September 2020 hearing before the undersigned, wherein he specifically states that he had to give up his business because his mental capacity was lacking to do his job, and he could no longer do it. The Board has evaluated the TDIU matter in regard to his ability to maintain employment in light of his PTSD as reported in his medical records, evaluations, and lay statements. In light of all these considerations, the Board finds that the criteria for entitlement to TDIU have been met for the period prior to November 10, 2014, and from March 1, 2015 to July 1, 2015. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 70 percent for posttraumatic stress disorder (PTSD) is remanded. The Board finds that additional development is needed prior to appellate review of the Veteran's claim for an increased rating for his service-connected PTSD. The Board notes that the last VA examination of record for PTSD was conducted in 2018, nearly three years prior to the date of this decision. Subsequent to that examination, the Veteran submitted a statement claiming his disability has worsened. See November 2018 substantive appeal, September 2020 hearing transcript. As such, a new VA examination is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 2. Entitlement to service connection for hypertension, to include as secondary to PTSD or in the alternative, to a kidney disability is remanded. The Board finds that additional development is needed prior to appellate review of the Veteran's claim of service connection for hypertension. The Veteran has been afforded two VA hypertension examinations in October 2011 and in August 2014 respectively. Both examiners offered negative etiological opinions on a secondary basis to PTSD. However, as discussed above, the Veteran has also claimed in an April 2014 letter, that his hypertension may have been caused by Agent Orange exposure, with Focal Segmental Glomulosclerosis (FSGS), his now-service-connected kidney condition, as an intermediary step. The Board notes that service connection for FSGS is granted herein. Further, the Veteran indicated in said letter that his exposure to Agent Orange in service was significant, and questioned whether subsequent blood pressure readings were within a normal range. There is no opinion of record as to direct service connection for hypertension, to include as due to Agent Orange exposure; and there is no opinion of record for hypertension as secondary to a now service-connected kidney disability. The Board finds it cannot resolve the question regarding whether service connection is warranted without a medical opinion addressing the aforementioned theories of entitlement; accordingly, a remand is warranted to obtain one. 3. Entitlement to service connection for melanoma skin cancer on the back, to include as due to herbicide and sunlight exposure in service, is remanded. 4. Entitlement to service connection for squamous cell carcinoma, to include as due to herbicide and sunlight exposure in service, is remanded. The Veteran's service records reflect that he had verified service in the Republic of Vietnam during the Vietnam Era; therefore, he is presumed to have been exposed to herbicide agents, such as Agent Orange, during that time. While skin cancer, to include squamous cell carcinoma and melanoma, is not on VA's list of diseases presumptively associated with exposure to herbicide agents, a claimant is not precluded from establishing service connection with actual proof of direct causation. Combee v. Brown, 34 F.3d 1039, 1043-44 (Fed. Cir. 1994). In this regard, the Veteran's representative pointed to a 2014 article indicating that Agent Orange exposure appears to double the risk of invasive skin cancer. This article in turn, cites a 2014 medical study indicating an increased risk of skin cancer for veterans exposed to Agent Orange. The Veteran was not afforded VA examinations to determine the nature and etiology of his claimed skin cancer disabilities. The Veteran, during the appellate period, has diagnoses of squamous cell carcinoma and melanoma of the back. See July 2012 and July 2020 VA medical records. He has further contended that his skin cancers developed as a result of exposure to Agent Orange or sunlight exposure in service, and he has cited to a study relating herbicide exposure to increased skin cancer risk. This is sufficient to trigger VA's duty to assist, and this matter must be remanded in order to provide the Veteran with a VA examination. The Board finds it cannot resolve the question regarding whether service connection is warranted without an examination with medical opinion; accordingly, a remand is warranted to obtain one. See McLendon v. Nicholson, 20 Vet. App. 79, 84 (2006). 5. Entitlement to service connection for a scar as secondary to squamous cell carcinoma removal surgery is remanded. The Veteran maintains that the scar on his head is the result of surgery to remove his squamous cell carcinoma. In fact, a June 2017 VA examination clearly indicates that the Veteran's scar results from his squamous cell carcinoma resection in July 2012. As discussed above, the Board has remanded the appellant's claim for entitlement to service connection for squamous cell carcinoma. The adjudication of this claim may impact the appellant's pending claim for entitlement to service connection for a scar disability. Thus, the claim for entitlement to service connection is for a scar disability is inextricably intertwined with the remanded issue of entitlement to service connection for squamous cell carcinoma. Accordingly, following the adjudication of this claim, the AOJ should then readjudicate the claim for entitlement to service connection for a scar disability. The matters are REMANDED for the following action: 1. Obtain and associate with the claims file any outstanding VA and private treatment records pertinent to the Veteran's treatment of his PTSD, hypertension and skin cancer disabilities. 2. Thereafter, schedule the Veteran for a VA examination to determine the current severity of the service-connected PTSD. The claims file should be accessible to and be reviewed by the examiner. Any indicated tests and studies must be accomplished, and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must describe the Veteran's symptoms, and specifically discuss the functional impact of his PTSD. The examiner must comment on the severity of the Veteran's PTSD and report all signs and symptoms necessary for evaluating PTSD under the rating criteria. The examiner must specifically comment on the lay statements of record, including the sworn testimony of record. A complete rationale must be provided for all opinions given, with explanation of the factors upon which each medical opinion is based. 3. Refer the Veteran's claims file to an appropriate medical professional to determine the nature and etiology of his skin cancer disabilities. The need for an in-person examination or telehealth interview is left to the discretion of the examiner. The examiner must review the Veteran's claims file and provide a medical opinion as to whether it is at least as likely as not that the Veteran's current skin cancer disabilities, including both melanoma of the back and squamous cell carcinoma, had onset during active service or were caused by his active service, to include presumed Agent Orange exposure. A complete rationale for all opinions expressed must be provided. If the examiner determines that an opinion cannot be provide without resorting to mere speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined. In particular, the examiner should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion. The examiner is informed that a negative opinion based solely on the fact that a given disease is not on the list of diseases for which Agent Orange presumptive service connection applies will not be an adequate opinion. Rather, any opinion must be based on medical facts and principles as applied to the facts of the Veteran's case. 4. Forward the claims file to an appropriately qualified VA examiner to assess the nature and etiology of the Veteran's hypertension. The claims folder and this remand must be made available to the examiner for review, and the examination report must reflect that such a review was undertaken. After a complete review of the record, the examiner must provide an opinion regarding the nature and etiology of the Veteran's hypertension. In rendering this opinion, the examiner must address each of the following: 1. The examiner must include an opinion on whether it is as likely as not (50 percent or more probability) that the Veteran's hypertension is related to service, including as a result of exposure to herbicides. 2. The examiner must also opine whether it is at least as likely as not (50 percent or more probability) that the Veteran's disability is caused or aggravated by the Veteran's service-connected FSGS. A negative opinion based solely on the fact that a given disease is not on the list of diseases for which Agent Orange presumptive service connection applies will not be an adequate opinion. Rather, any opinion must be based on medical facts and principles as applied to the facts of the Veteran's case. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Comninos, Georgio 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.