Citation Nr: 21027400 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 13-14 989 DATE: May 5, 2021 ORDER A disability rating in excess of 30 percent for the period prior to April 16, 2013, for service-connected bilateral pes planus with metatarsalgia, is denied. A 10 percent disability rating for hammer toes, left foot, for the period from April 24, 2008 to September 29, 2011; from April 1, 2012 to September 27, 2016, and from April 1, 2017, is granted. From April 24, 2008, a 10 percent disability rating for hammer toes, right foot, is granted. A disability rating in excess of 10 percent for hallux valgus, left foot, is denied. A disability rating in excess of 10 percent for hallux valgus, right foot, is denied. REMANDED A total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities for the period prior to April 16, 2013 is remanded. FINDINGS OF FACT 1. Bilateral pes planus with metatarsalgia is manifested by severe symptomatology with objective evidence of marked deformity, pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities, without marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation. 2. From April 24, 2008 to September 29, 2011; from April 1, 2012 to September 27, 2016, and from April 1, 2017, hammer toes, left foot, has been manifested by severe symptomatology and deformity affecting toes 2 through 5. 3. From April 24, 2008, hammer toes, right foot, has been manifested by severe symptomatology and deformity affecting toes 2 through 5. 4. Hallux valgus, left foot, is manifested by severe symptomatology. 5. Hallux valgus, right foot, is manifested by severe symptomatology. CONCLUSIONS OF LAW 1. For the period prior to April 16, 2013, the criteria for a disability rating in excess of 30 percent for bilateral pes planus with metatarsalgia have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5276. 2. For the period from April 24, 2008 to September 29, 2011; from April 1, 2012 to September 27, 2016, and from April 1, 2017, the criteria for a 10 percent disability rating for hammer toes, left foot, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5282. 3. From April 24, 2008, the criteria for a compensable disability rating for hammer toes, right foot, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5282. 4. The criteria for a disability rating in excess of 10 percent for hallux valgus, left foot, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5280. 5. The criteria for a disability rating in excess of 10 percent for hallux valgus, right foot, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.59, 4.71a, Diagnostic Code 5280. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August to September 1999 and active service from March 2003 to April 2005. These matters came to the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. By way of history, in a November 2005 rating decision, service connection was established for right foot and left foot with hammer toes all digits, neuroma, pes planus and hallux valgus, and separate 10 percent disability ratings were assigned, effective April 19, 2005. In August 2007, the Veteran filed an increased rating claim. In a July 2008 rating decision, increased ratings were denied. On April 24, 2008 and May 3, 2009, the Veteran filed TDIU claims. In June 2009, the Veteran filed an increased rating claim. In an October 2009 rating decision, a 30 percent disability rating was assigned to bilateral hammer toes, pes planus, metatarsalgia and tinea pedis, effective April 30, 2009, which corresponded to the date of a VA examination report; and, separate 10 percent ratings remained in effect for hammer toes of the left and right feet. In March 2017, the Board remanded the issues to complete a records request and to schedule a videoconference hearing before the Board. The Veteran testified before the undersigned Veterans Law Judge at such a hearing in August 2017; a hearing transcript has been associated with the claims file. In August 2018, the Board remanded the following issues on appeal for further development: a disability rating in excess of 30 percent from April 30, 2009 for bilateral hammer toes, pes planus, metatarsalgia, tinea pedis, and neuralgia; a disability rating in excess of 10 percent prior to April 30, 2009 for left foot disability with hammer toes, pes planus, metatarsalgia, and tinea pedis; and, a disability rating in excess of 10 percent prior to April 30, 2009 for right foot disability with hammer toes, pes planus, metatarsalgia, and tinea pedis. At that time, the Veteran had been awarded temporary total disability ratings as a result of surgical or other treatment requiring the need for convalescence for bilateral hammer toes, pes planus, metatarsalgia, tinea pedis, and neuralgia from September 29, 2011 to March 31, 2012, and from September 7, 2016 to March 31, 2017; these temporary total ratings are not in appellate status. Subsequent to the August 2018 Board Remand, in a January 2021 rating decision, the RO, in pertinent part, assigned the following ratings: 1. Hammer toes, left foot (0% 04/19/2005; 100% 09/29/2011; 0% 04/01/2012; 100% 09/28/2016; 0% 04/01/2017) 2. Bilateral pes planus with metatarsalgia (30% 04/19/2005; 50% 04/16/2013) 3. Hallux valgus, left foot (10% 04/19/2005) 4. Hallux valgus, right foot (10% 04/19/2005) 5. Hammer toes, right foot (0% 04/19/2005) It is noted that the 50 percent rating assigned to bilateral pes planus with metatarsalgia effective April 16, 2013 is the highest assignable rating pursuant to 38 C.F.R. § 4.71A, Diagnostic Code 5276, and constitutes a full grant of the benefit sought on appeal. Based on the findings in the January 2021 rating decision, the Board has recharacterized the issues on appeal. Finlly, it is noted that in a January 2021 rating decision, the RO proposed to sever service connection for tinea pedis which had been combined with the other disabilities associated with the feet on the basis of clear and unmistakable error (CUE) as service connection was erroneously established for this disability and subsequent medical evidence does not support a relationship to service. On April 1, 2021, the RO issued correspondence to the Veteran notifying him that it was proposed that service connection would be severed. As to date the RO has not severed service connection, the issue is not in appellate status. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where, as here, an increase in the level of a disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Board has reviewed all the evidence in the Virtual folders, which includes: the Veteran's contentions, treatment records, and VA examination reports. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Bilateral pes planus with metatarsalgia Prior to April 16, 2013, the Veteran's bilateral pes planus with metatarsalgia is rated 30 percent disabling pursuant to Diagnostic Code 5276, for flatfoot, acquired. A 30 percent disability rating is warranted for severe bilateral flatfoot with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities; and, a 50 percent disability rating is warranted for pronounced bilateral flatfoot with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation, not improved by orthopedic shoes or appliances. Pursuant to Diagnostic Code 5279 metatarsalgia, anterior (Morton's disease), unilateral, or bilateral, a 10 percent disability rating is warranted. Based on review of the evidence of record, to include treatment records, examination reports, and lay assertions, the Board finds that a disability rating in excess of 30 percent is not warranted for bilateral pes planus with metatarsalgia for any period prior to April 16, 2013. Turning to the evidence, an August 2009 C&P examination reflects abnormal weight bearing, unusual shoe wear pattern, and callosities located at dorsal toes 2-5 with tenderness. There were objective findings of painful motion and tenderness without objective findings of edema, disturbed circulation, weakness, atrophy of the musculature, heat, redness, or instability. On weight bearing examination, there was moderate tenderness of the plantar surface of the right foot with remarkable inward bowing on the right correctable by manipulation with no pain on manipulation, with alignment of the Achilles tendon normal on the left with weight bearing. Non-weight bearing examination showed normal alignment of the Achilles for both feet. There was no forefoot/midfoot mal-alignment of either foot. There was no deformity such as inward rotation of the superior portion of the os calcis, medial tilting of the upper border of the talus, nor marked pronation or the whole feet everted. The contraction and shortening of the plantar fascia on both the right and left was severe in degree, with no signs of dropped forefoot or marked varus deformity. There was no Morton's metatarsalgia. He could stand for 15 to 30 minutes with limitations with standing and walking, but he did not require any type of support with his shoes. He required no orthopedic shoes, corrective shoes, arch supports, foot supports, build-up of the shoes nor shoe inserts. The Veteran reported subjective symptoms of pain and stiffness at rest, but no weakness, swelling or fatigue. While standing or walking he has pain, stiffness and swelling but no weakness or fatigue. Correspondence dated in September 2009 from his treating physician reflects that they had begun conservative, non-surgical treatment in the form of medications, orthopedic shoes and inserts. 09/04/2009 Medical Treatment Record-Government Facility. A December 2009 C&P examination reflects the Veteran's report of pain, stiffness, and swelling at rest with no weakness or fatigue. While standing or walking he had pain, weakness, stiffness, swelling and fatigue. It was indicated that he had special shoes made, without benefit. On examination, there was evidence of abnormal weight bearing, and callosities located on the dorsum of the 5th toes with tenderness. There were no signs of unusual shoe wear pattern and breakdown. On examination, there was tenderness without painful motion, edema, disturbed circulation, weakness, atrophy of the musculature, head, redness or instability with regard to both feet. Palpation of the plantar surface of the feet revealed moderate tenderness. On weight bearing examination, alignment of the Achilles tendon was normal on the right and left. On non-weight bearing examination, alignment of the Achilles tendon was normal on the right and left. On both the right and left, there was a moderate degree of valgus present, which could be corrected by manipulation with no forefoot/midfoot mal-alignment and no deformity such as inward rotation of the superior portion of the os calcis, medial tilting of the upper border of the talus, marked pronation or the whole foot everted. He had Morton's metatarsalgia at 4th and 5th rays. He did not require any type of support with his shoes but requires corrective shoes. He requires no orthopedic shoes, arch supports, build-up of the shoes nor shoe inserts. The symptoms and pain are not relieved by the corrective shoe wear. He had difficulty with prolonged standing and walking. Correspondence dated in February 2010 from the Veteran's treating provider reflects that his orthopedic shoes and custom orthotics did not seem to help his conditions of the feet. Correspondence dated in March 2010 from the Veteran's treating provider reflects that while his shoes and custom inserts will provide anatomically correct support and alignment, they will not in any way serve to correct or substantially improve his deformity. 03/09/2010 Third Party Correspondence. A March 2010 VA treatment record reflects that the Veteran had a relatively flexible flatfoot deformity with a forefoot varus noted to both feet. The examiner diagnosed severe flatfoot deformity primarily sagittal and transverse plane. 05/10/2020 Medical Treatment Record-Government Facility at 3. A July 2011 C&P examination reflects complaints of pain, weakness, stiffness, swelling, and fatigue with walking and standing and rest. On examination, gait was within normal limits although there was evidence of abnormal weight bearing. Examination of the feet did not reveal any signs of unusual shoe wear pattern, callosities, or breakdown. There was painful motion of both feet without edema, disturbed circulation, weakness, atrophy of the musculature, tenderness, heat, redness and instability. There was moderate tenderness on palpation of the plantar surface of the right and left feet. On both weight bearing and non-weight bearing examination, alignment of the Achilles tendon was normal on the right and left. There was pes planus present. There was a slight degree of valgus present which could be corrected by manipulation of both feet. Both feet showed forefoot/midfoot malalignment of a slight degree which could be corrected by manipulation. There was no deformity such as inward rotation of the superior portion of the os calcis, medial tilting of the upper border of the talus, marked pronation or the whole foot everted. He requires shoe inserts, but his symptoms and pain are not relieved by the corrective shoe wear. In sum, for the period prior to the Veteran undergoing a C&P examination on April 16, 2013, the evidence of record clearly reflects that the Veteran's pes planus is severe, with objective evidence of deformity to include inward bowing of tendo achillis, pain on manipulation and use, swelling on use, and characteristic callosities. However, the evidence does not reflect that the Veteran's pes planus is manifested by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achillis on manipulation. It was not until he underwent the examination on April 16, that there was an objective finding of extreme tenderness of plantar surfaces of the feet. Thus, the Board finds that based on the objective and subjective evidence of record, the 30 percent disability rating in effect prior to April 16, 2013 compensates the Veteran for his bilateral pes planus with metatarsalgia. While acknowledging that a 10 percent rating is warranted for metatarsalgia, anterior (Morton's disease), unilateral, or bilateral, pursuant to Diagnostic Code 5279 the Board finds that such symptomatology is contemplated by the 30 percent rating in effect. The evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). While the Board acknowledges the pain and other symptoms associated with his pes planus, the Board finds that his symptoms and any functional limitations are contemplated by the currently assigned rating. The Board finds that 38 C.F.R. §§ 4.40, 4.45 and 4.59 do not provide a basis for an increased rating for any period contemplated by this appeal. See DeLuca v. Brown, 8 Vet. App. 202 at 204-07. Hammer toes, left and right foot The Veteran's hammer toes of the left foot are rated 0 percent disabling prior to September 29, 2011; from April 1, 2012 to September 27, 2016; and, from April 1, 2017, and his hammer toes of the right foot have been rated 0 percent disabling throughout the appeal period. Pursuant to Diagnostic Code 5282, a noncompensable disability rating is warranted for hammer toe, single toes; and, a 10 percent disability rating is warranted for hammer toe, all toes, unilateral without claw foot. Based on review of the evidence of record, to include treatment records, examination reports, and lay assertions, the Board finds that separate 10 percent disability ratings are warranted for hammer toes of the left foot and right foot from April 24, 2008, which corresponds to the date of his initial claim for increased compensation based on unemployability, and for any period from April 24, 2008 in which temporary total ratings are not in effect. While the medical evidence of record reflects that toes 2-5 of both feet are affected by hammer toes, and the large toe is affected by hallux valgus which is separately rated, in light of the severe pain and deformity associated with his hammer toes the Board finds that the 10 percent disability ratings appropriately compensate him for his symptomatology. The August 2009 C&P examination reflects hammer toes on 2-5 toes of the right and left feet. The examiner characterized his hammer toes as severe with pain, swelling, and unusual wear of shoes with severe deformity of the toes. The December 2009 C&P examination reflects hammer toes 2-5 toes of the right and left feet and that he has bunion deformities of the first digit on each foot. A March 2010 VA treatment record reflects severe hammertoe deformities that are semi-rigid with extreme dorsi-contracture of the metatarsophalangeal joints. There was pain on palpation to the submetatarsal heads and distal metatarsophalangeal joints two through five bilateral. The hammertoes are so severe the third, fourth and fifth toes do not even touch the ground. The examiner diagnosed severe hammertoe deformities with associated metatarsalgia and distal metatarsophalangeal joint capsulitis. 05/10/2020 Medical Treatment Record-Government Facility at 3. As the maximum schedular ratings have been assigned and as his other symptomatology is contemplated by the other ratings discussed in this decision, there is no basis for ratings in excess of the separate 10 percent ratings awarded. In this case, the Veteran's hammer toes are specifically listed in the rating schedule pursuant to Diagnostic Code 5282 and the evidence does not reflect that he has any symptoms associated with the service-connected disabilities that are not contemplated by the 10 percent ratings currently assigned, and as discussed separate ratings are in effect in contemplation of separate diagnostic criteria and separate disabilities affecting the feet. Hallux valgus, left and right foot The Veteran's hallux valgus of the left and right feet have been separately rated 10 percent disabling throughout the appeal period. Pursuant to Diagnostic Code 5280, hallux valgus, unilateral, a maximum 10 percent disability rating is warranted when severe, if equivalent to amputation of great toe, or when operated with resection of metatarsal head. The medical evidence of record reflects hallus valgus of the feet with slight angulation with no resection of the metatarsal head of either foot. As the maximum schedular ratings have been assigned for the entire appeal period, and as his other symptomatology is contemplated by the other ratings as discussed above, higher ratings are not warranted. In this case, the Veteran's hallux valgus is specifically listed in the rating schedule pursuant to Diagnostic Code 5280 and the evidence does not reflect that he has any symptoms associated with the service-connected disabilities that are not contemplated by the 10 percent ratings currently assigned, and as discussed separate ratings are in effect in contemplation of separate diagnostic criteria and separate disabilities affecting the feet. REASONS FOR REMAND TDIU In a February 2021 rating decision, a TDIU was granted effective April 16, 2013. Such date corresponds to the effective date the Veteran's disabilities meet the schedular criteria for a TDIU per 38 C.F.R. § 4.16(a). Under 38 C.F.R. § 4.16(b), all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). For the period from April 19, 2005 to April 23, 2008, a combined 50 percent rating is in effect; from April 24, 2008 to September 28, 2011 a combined 60 percent rating is in effect, and for the period from April 1, 2012 to April 15, 2013 a combined 60 percent rating is in effect. Specifically, a 30% disability rating is in effect for bilateral pes planus with metatarsalgia, effective April 19, 2005; a 10% disability rating is in effect for hallux valgus, left foot, effective April 19, 2005; a 10% disability rating is in effect for hallux valgus, right foot, effective April 19, 2005; a 0% disability rating is in effect for hammer toes, right foot, effective April 19, 2005 to April 23, 2008, and a 10% disability rating is in effect from April 24, 2008; a 0% disability rating is in effect for tinea pedis, effective April 19, 2005; and, a 0% disability rating is in effect for hammer toes, left foot, effective April 19, 2005 to April 23, 2008, and a 10% disability rating is in effect from April 24, 2008 to September 28, 2011, and from April 1, 2012. The Veteran asserts that he worked in a full-time capacity in law enforcement until January 2008. See 05/03/2009 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. Thus, entitlement to a TDIU on an extraschedular basis per § 4.16(b) remains in effect for the period from January 2008 to September 28, 2011, and from April 1, 2012 to April 15, 2013 based on the functional effects of his disabilities of the feet. From September 29, 2011 to March 31, 2012, a 100 percent rating is in effect, thus entitlement to a TDIU is moot as a 100 percent rating constitutes a higher benefit. VA's policy is to award TDIU in all cases where service-connected disability precludes gainful employment regardless of the percentages awarded. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance, but it can review the record and determine whether an appropriate case is to be referred to the Director of the VA Compensation Service (Director) or Undersecretary for Benefits for such extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001); see Wages v. McDonald, 27 Vet. App. 233, 236 (2015) ("On its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance."). The Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, the Veteran's non-service-connected disabilities and her advancing age are not for consideration. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board's task is to determine whether there are circumstances apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the Board must determine if there are circumstances, apart from non-service-connected disabilities, that place this Veteran in a different position than other veterans. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A retrospective opinion should be sought as to the effects of his disabilities on his ability to function in an employment capacity for the periods in question, and the TDIU matter should be submitted to the Director, Compensation Service, for extraschedular consideration per § 4.16(b). On Remand, the Veteran's former employer should be contacted to verify the Veteran's reported employment, to include the date he last worked full-time. The matters are REMANDED for the following actions: 1. Contact the Monroe County Sheriff Department identified in the May 2009 VA Form 21-8940 and request verification of his employment and his purpose for leaving the position and the date he last worked in a full-time capacity. If such efforts prove unsuccessful, documentation to that effect should be added to the claims folder. 2. Request that a VA clinician with appropriate expertise review the claims folder and provide a retrospective opinion on the functional effects of the Veteran's bilateral pes planus with metatarsalgia; hallux valgus, bilateral feet; hammer toes, bilateral feet; and, tinea pedis, to include how such effects would impact his functioning in any employment capacity for the period from January 2008 to September 28, 2011 and from April 1, 2012 to April 15, 2013. 3. For the period from January 2008 (or a more specific date based on the development above) to September 28, 2011 and for the period from April 1, 2012 to April 15, 2013, refer the Veteran's claim for a TDIU per § 4.16 (b) to the Director, Compensation Service, for extraschedular consideration as to whether his service-connected disabilities (bilateral pes planus with metatarsalgia (30%); hallux valgus, left foot (10%); hallux valgus, right foot (10%); hammer toes, right foot (0%); hammer toes, left foot (0%); and, tinea pedis (0%)) preclude the Veteran from participating in gainful employment for the period contemplated by this appeal. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M.W. Kreindler, 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.