Citation Nr: 21027916 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 14-23 933 DATE: May 7, 2021 ORDER Prior to November 27, 2020, an initial rating in excess of 20 percent for lumbar strain, myositis, and discogenic disease is denied. Since November 27, 2020, an initial rating in excess of 40 percent for lumbar strain, myositis, and discogenic disease is denied. A rating in excess of 20 percent for L5 radiculopathy of the left lower extremity is denied. Prior to April 18, 2019, an initial rating in excess of 10 percent for radiculopathy, right lower extremity, associated with lumbar strain, myositis, and discogenic disease is denied. Since April 18, 2019, an initial rating in excess of 20 percent for radiculopathy, right lower extremity, associated with lumbar strain, myositis, and discogenic disease, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disability is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Prior to November 27, 2020, the Veteran's lumbar strain, myositis, and discogenic disease was manifested by subjective complaints of pain; the objective findings include forward flexion greater than 30 degrees; ankylosis or an additional separate rating (other than that already awarded for radiculopathy of the right and left lower extremities) based on neurological findings have not been demonstrated. 2. Since November 27, 2020, unfavorable ankylosis of the thoracolumbar spine has not been demonstrated. 3. Throughout the period on appeal, the Veteran's L5 radiculopathy of the left lower extremity resulted in no more than moderate incomplete paralysis of the sciatic nerve. 4. Prior to April 18, 2019, the Veteran's radiculopathy, right lower extremity, associated with lumbar strain, myositis, and discogenic disease resulted in no more than mild incomplete paralysis of the sciatic nerve. 5. Since April 18, 2019, the Veteran's radiculopathy, right lower extremity, associated with lumbar strain, myositis, and discogenic disease, resulted in no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. Prior to November 27, 2020, the criteria for an initial rating in excess of 20 percent for lumbar strain, myositis, and discogenic disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.71a, Diagnostic Code (DC) 5237. 2. Since November 27, 2020, the criteria for an initial rating in excess of 40 percent for lumbar strain, myositis, and discogenic disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.71a, DC 5237. 3. The criteria for a rating in excess of 20 percent for L5 radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8520. 4. Prior to April 18, 2019, the criteria for an initial rating in excess of 10 percent for radiculopathy, right lower extremity, associated with lumbar strain, myositis, and discogenic disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8520. 5. Since April 18, 2019, the criteria for a rating in excess of 20 percent for radiculopathy, right lower extremity, associated with lumbar strain, myositis, and discogenic disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to March 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in September 2011 by a Department of Veterans Affairs (VA) Regional Office (RO). Records found in the claims file in the Spanish language have been translated to English. This case was previously before the Board in June 2018 and October 2020, when it was remanded for additional development. A January 2021 supplemental statement of the case was most recently issued, and the claims are once again before the Board. Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). 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 will also 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 claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating in excess of 20 percent for lumbar strain, myositis, and discogenic disease, prior to November 27, 2020. 2. Entitlement to an initial rating in excess of 40 percent for lumbar strain, myositis, and discogenic disease since November 27, 2020. The Veteran's back disability is rated as 20 percent disabling prior to November 27, 2020, and 40 percent disabling from November 27, 2020 under 38 C.F.R. § 4.71a, Diagnostic Code 5237. He is in receipt of a separate 20 percent rating for L5 radiculopathy of the left lower extremity, and in receipt of a 10 percent rating prior to April 18, 2019 and a 20 percent rating since April 18, 2019 for radiculopathy of the right lower extremity associated with lumbar strain, myositis, and discogenic disease. In this regard, the General Rating Formula for Disease and Injuries of the Spine provides that with or without such symptoms as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, provides a 20 percent rating if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, if the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, 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 if forward flexion of the thoracolumbar spine being 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating if there is unfavorable ankylosis of the entire thoracolumbar spine; and 100 percent rating if there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235-5242. Note (1) also articulates that neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Id. Normal back motion is flexion to 90 degrees, extension to 30 degrees, right and left lateral flexion to 30 degrees, and right and left rotation to 30 degrees. 38 C.F.R. § 4.71a, Plate V. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. The Board notes as the Veteran's disability does not warrant an increased rating under DC 5243, as will be discussed below, the new criteria are not for application. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453, 76,462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, 5244). When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The United States Court of Appeals for Veterans Claims (Court) has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, the Mitchell Court explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Moreover, the Court in Southall-Norman v. McDonald, 28 Vet. App. 346, 352 (2016) held that the provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to the evaluation of musculoskeletal disabilities under Diagnostic Codes predicated on range of motion measurements. Furthermore, in Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) the Court held that the Board may not deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria. In adjudicating below whether the Veteran meets the criteria for higher evaluations for his back disability, the Board has not overlooked the Court's holdings in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds that further delay by remanding the Veteran's increased rating claim for his service-connected spine disability for a new VA examination is not required. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the veteran are to be avoided). Prior to November 27, 2020 The Board has reviewed the evidence of record and finds that the weight of evidence does not support the next-higher 40 percent rating, prior to November 27, 2020. The Veteran underwent a VA examination in September 2011. The Veteran reported increased pain during flare-ups which sometimes created the inability to put on socks and shoes, and to bathe. Range of motion testing revealed forward flexion to 75 degrees, with painful motion beginning at 70 degrees. It was noted that the Veteran was able to perform repetitive testing. Following repetitive testing forward flexion was still demonstrated to 75 degrees. The examiner noted no additional limitation of range of motion of the thoracolumbar spine following repetitive testing. Muscle strength testing was normal, except for slightly reduced findings with great toe extension of the left side. A reflex examination revealed normal findings. A sensory examination revealed decreased findings in the lower leg/ankle and foot/toes of the left side. Radiculopathy was found on the left lower extremity. Moderate intermittent pain and moderate numbness of the left lower extremity were noted. The examiner found moderate radiculopathy of the sciatic left nerve. No right radiculopathy was noted. The examiner found no other neurologic abnormalities or findings related to the thoracolumbar spine. Although the examiner noted intervertebral disc syndrome (IVDS), it was specifically found that the Veteran had experienced no incapacitating episodes over the past 12 months due to IVDS. The Veteran underwent an additional VA back examination in July 2017. The Veteran reported constant back pain with stiffness. He reported difficulty standing from the sitting position and to bend forward. The Veteran reported that his back pain increases in intensity with prolonged sitting, standing, or walking and with activities which involve bending at the trunk. He reported that he used to only have pain and numbness running from his back into his left leg but now also has the same symptoms into his right leg. Range of motion testing revealed forward flexion to 60 degrees. The examiner noted that the Veteran had difficulty to undress and dress in the office today due to back stiffness. It was noted that the Veteran was able to perform repetitive use testing with at least three repetitions; no additional loss of function or range of motion after three repetitions was observed. Muscle strength testing revealed normal findings excepted for slightly reduced findings in left ankle dorsiflexion and great toe extension on both sides. No muscle atrophy was found. A reflex examination revealed normal results. A sensory examination reflected decreased findings in the right and left foot/toes. The VA examiner noted moderate paresthesias and/or dysesthesias and numbness in the left lower extremity and mild paresthesias and/or dysesthesias and numbness in the right lower extremity. No other signs or symptoms of radiculopathy were noted. The examiner diagnosed mild radiculopathy of the right sciatic nerve and moderate radiculopathy of the left sciatic nerve. There was no ankylosis of the spine. The examiner found no other neurologic abnormalities or findings related to the thoracolumbar spine and no IVDS of the thoracolumbar spine. It was noted that the Veteran uses a brace and cane due to his back. The Veteran next attended an April 2019 VA examination for his back. The Veteran reported pain in his lower back which is intermittent and produces a stabbing sensation. His pain was rated as 5 out of 10 in intensity, which can increase in severity. The Veteran reported pain radiating to his bilateral lower extremities, being worse on the left side. Range of motion testing revealed forward flexion to 50 degrees. Although pain was noted on the examination, it did not result in or cause functional loss. Muscle strength testing revealed normal findings and there was no muscle atrophy noted. A reflex examination and sensory examination revealed normal findings. Radiculopathy was noted, with mild intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness, bilaterally. The examiner noted moderate radiculopathy of the right and left sciatic nerve. No ankylosis was found and the examiner noted no other neurologic abnormalities or findings related to the thoracolumbar spine. The examiner noted no IVDS and no physician prescribed bedrest in the past 12 months. It was noted that the Veteran regularly uses a brace and cane. The examiner explained that the Veteran uses a brace to provide support to the lumbar spine and a cane to avoid falls due to pain in the lumbar spine. The examiner noted that the Veteran is unable to sit or stand for long periods ot time, has difficulty walking or climbing stairs. The Board acknowledges that in the June 2018 and October 2020 remands, inadequacies were noted in the July 2017 and April 2019 VA examinations. A January 2021 VA addendum opinion was provided. Significantly, the VA examiner estimated that during flareups or repetitive use it could be estimated that the Veteran would lose 10 degrees of range of motion. When taking this into consideration, the above range of motion findings still are not equivalent to flexion of 30 degrees or less needed for the next higher 40 percent rating. After a review of all the evidence, the Board finds a rating in excess of 20 percent prior to November 27, 2020 is not warranted. The Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. A part that becomes painful on use must be regarded as seriously disabled. Id.; see also DeLuca. The Veteran has complained about back pain, but even considering pain, the Veteran's forward flexion is not 30 degrees or less, even during flare-ups or following repetitive motion. As such, the Board concludes that the Veteran's back pain is not of such severity as to merit a rating in excess of 20 percent rating even when contemplating pain, repetitive motion, and flare-ups, as these symptoms do not cause sufficient functional limitation. Based on an extensive review of the available evidence, the Board finds that the Veteran's painful range of motion symptoms have been most consistent with a 20 percent disability rating, prior to November 27, 2020. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. Since November 27, 2020 A 40 percent disability rating is the highest available for limitation of range of motion of the thoracolumbar spine. The Veteran is in receipt of a 40 percent disability rating for his service-connected lumbar strain, myositis, and discogenic disease since November 27, 2020. As noted above, under the General Rating Formula for Diseases and Injuries of the Spine, the criteria for a rating in excess of 40 percent requires unfavorable ankylosis. There is no objective medical evidence showing ankylosis of the Veteran's spine. Hence, a rating in excess of 40 percent is not warranted at any time during this portion of the appeal period. In this case, a thorough review of the extensive record, to include the VA examinations and treatment records, does not reflect the Veteran has ever been found to have ankylosis of the spine, or any functional equivalent. Further, the recent November 2020 VA examination explicitly found the Veteran did not have ankylosis of the spine. Consequently, he is not entitled to a rating in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine. As noted above, 40 percent is the highest schedular rating for limitation of motion of the spine, under the regulatory provisions (38 C.F.R. §§ 4.40, 4.45). The Board finds that the range of motion findings demonstrated in the record do not approach the functional equivalent of ankylosis. See Chavis v. McDonough, No. 18-2928, U.S. Court of Appeals for Veterans Claims, decided April 16, 2021. Finally, a higher rating is not warranted under the Formula for Rating IVDS Based on Incapacitating Episodes because the evidence does not show that the Veteran suffered from incapacitating episodes having a total duration of at least 6 weeks at any point during the appeal period. For these reasons, the Board finds that the Veteran does not meet or nearly approximate the criteria for a rating in excess of 40 percent, since November 27, 2020, for his service-connected lumbar strain, myositis, and discogenic disease. 3. Entitlement to a rating in excess of 20 percent for L5 radiculopathy of the left lower extremity. 4. Entitlement to an initial rating in excess of 10 percent for radiculopathy, right lower extremity, associated with lumbar strain, myositis, and discogenic disease, prior to April 18, 2019. 5. Entitlement to an initial rating in excess of 20 percent for radiculopathy, right lower extremity, associated with lumbar strain, myositis, and discogenic disease, since April 18, 2019. Neurological Rating As noted above, the Veteran is already separately service-connected for L5- radiculopathy of the left lower extremity and radiculopathy of the right lower extremity. The Veteran is rated at 20 percent under DC 8520 for the entire period on appeal for his left lower extremity. The Veteran is awarded a 10 percent rating for his right lower extremity radiculopathy beginning July 12, 2017 until April 17, 2019, and at 20 percent since April 18, 2019. The rating provisions of DC 8520, which governs disabilities of the sciatic nerve, provide for a 10 percent rating for incomplete paralysis of the sciatic nerve that is mild, a 20 percent rating for a moderate disability, a 40 percent rating for a moderately severe disability, and a 60 percent rating for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. 38 C.F.R. § 4.124a. An 80 percent rating is authorized for complete paralysis of the sciatic nerve, evidenced by foot dangles and drops, no active movement possible of muscles below the knees, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id.; Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations). As noted in the lumbosacral spine discussion above, the Veteran underwent a VA examination in September 2011. Radiculopathy was found on the left lower extremity. Moderate intermittent pain and moderate numbness of the left lower extremity were noted. The examiner found moderate radiculopathy of the sciatic left nerve. No right radiculopathy was noted. The examiner found no other neurologic abnormalities or findings related to the thoracolumbar spine. At a July 2017 VA examination, the VA examiner noted moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in the left lower extremity and mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the right lower extremity. No other signs or symptoms of radiculopathy were noted. The examiner diagnosed mild radiculopathy of the right sciatic nerve and moderate radiculopathy of the left sciatic nerve. The examiner found no other neurologic abnormalities. At an April 2019 VA examination, radiculopathy was noted, with mild intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness, bilaterally. The examiner noted moderate radiculopathy of the right and left sciatic nerve. No other neurologic abnormalities or findings related to the thoracolumbar spine were noted. Finally, at the most recent November 2020 VA examination a reflex examination revealed normal findings. A sensory examination at that time revealed decreased findings at the lower leg/ankle and foot/toes, bilaterally. The examiner noted moderate constant pain, paresthesias and/or dysesthesias, and numbness, bilaterally. There were no other signs or symptoms of radiculopathy. The examiner diagnosed moderate sciatic nerve radiculopathy. The Board finds that this evidence does not reflect moderately severe incomplete paralysis of the sciatic nerve for his left lower extremity at any point during the period on appeal. Additionally, although the Veteran is not service-connected for his right lower extremity radiculopathy for the entire period on appeal, the evidence does not demonstrate neurological symptoms of his right lower extremity until the July 12, 2017 VA examination. As such, the Board finds that a rating for right lower extremity radiculopathy is not warranted before the effective date already assigned. Moreover, the evidence described above is not consistent with moderate incomplete paralysis of the right sciatic nerve prior to April 18, 2019 or moderately severe incomplete paralysis of the right sciatic nerve since April 18, 2019. The Board finds that the evidence of record at most supports the ratings already in place. As such, the Board finds that the preponderance of the evidence is against any rating higher than 20 percent for his left lower extremity, or any rating in excess of 10 percent prior to April 18, 2019 or any rating in excess of 20 percent since April 18, 2019 for his right lower extremity. Additionally, separate neurological ratings for any other neurological disability associated with his thoracolumbar spine are not warranted. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disability is remanded. 2. Entitlement to a TDIU is remanded. The Veteran's claim for entitlement to service connection for an acquired psychiatric disability was most recently remanded in October 2020 for an additional medical opinion. A November 2020 negative etiological opinion was provided. The Veteran subsequently submitted a February 2021 private psychological examination. A diagnosis of recurrent chronic major depression and generalized anxiety with panic attacks was provided. A Mental Disorders Disability Benefits Questionnaire (DBQ) was also submitted in March 2021. Diagnoses of anxiety disorder and chronic major depressive disorder were noted. The examiner noted that the Veteran's mental diagnoses result in total occupational and social impairment. Under the anxiety disorder, the examiner wrote anxiety history with multiple physical conditions. Under Axis III of the medical diagnosis, the examiner wrote multiple conditions including hernia disc, lumbar strain, and insomnia. The Veteran is service-connected for lumbar strain, myositis, and discogenic disease. The Board finds that a secondary service connection theory has been raised by the record. The Board finds that a medical opinion is warranted to determine whether the Veteran's acquired psychiatric disorder is related to his military service on a secondary basis. There is no opinion of record as to whether the Veteran's acquired psychiatric disorder is caused or aggravated by his service-connected disabilities. Such should be accomplished on remand. The Veteran's claim for entitlement to TDIU is inextricably intertwined with his remanded claim. Therefore, the Board will not issue a decision on this claim at this time. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are 'inextricably intertwined' when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated). The matters are REMANDED for the following action: Forward the Veteran's claims folder to an examiner for an addendum opinion. The examiner is requested to review the claims folder, to include this remand. Following review of the claims file the examiner should provide opinions on the following: The DBQ received in March 2021 listing the Veteran's lumbar strain in Axis III in the context of the diagnoses of anxiety disorder and chronic major depressive disorder should be addressed. Whether it is at least as likely as not that the Veteran's acquired psychiatric disability was caused by his service-connected lumbar strain, myositis, and discogenic disease. Whether it is at least as likely as not that the Veteran's acquired psychiatric disability was aggravated by his service-connected service-connected lumbar strain, myositis, and discogenic disease. Any opinion(s) offered should be accompanied by a clear rationale consistent with the evidence of record. If the examiner finds it impossible to provide any requested opinions without resort to speculation, he or she should so indicate and explain why such a finding is made. Caroline B. Fleming Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. M. Clark, 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.