Citation Nr: 21028022 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 17-60 328 DATE: May 10, 2021 ORDER The appeal for a rating for depression greater than 30 percent prior to August 19, 2020, is denied. The appeal for a rating for depression greater than 50 percent from August 19, 2020, is denied. The appeal for a rating greater than 10 percent for right knee limitation of flexion, is denied. A separate 10 percent rating for instability of the right knee is granted from September 28, 2012, to February 6, 2021, subject to the laws and regulations governing monetary benefits. A 20 percent rating for instability of the right knee is granted from February 7, 2021, subject to the laws and regulations governing monetary benefits. The appeal for a compensable rating for the right hand little finger, is denied. A total disability rating total disability rating based on individual unemployability (TDIU) from September 19, 2019, is granted subject to the laws and regulations governing monetary benefits. REMANDED The appeal for service connection for throat cancer is remanded. The appeal for a TDIU prior to September 19, 2019, is remanded. FINDINGS OF FACT 1. Prior to August 19, 2020, the Veteran's service-connected depressive disorder not otherwise specified (NOS) with primary insomnia and alcohol abuse resulted in no more than occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. 2. Since August 19, 2020, the Veteran's service-connected depression has resulted in no more than occupational and social impairment with reduced reliability and productivity. 3. For the entire period, the Veteran's right knee disability was manifested by subjective complaints of pain, instability, giving way, and objective findings of tenderness to palpation, post-meniscotomy, with painful flexion limited to 120 degrees at worst, full extension, and no objective evidence of ankylosis, or malunion of the tibia or fibula, or genu recurvatum. 4. Resolving doubt in favor of the Veteran, for the period from September 28, 2012, to February 6, 2021, the Veteran consistently reported subjective complaints of buckling and giving way, wore a knee brace and a cane, but did not result in finding of instability on objective testing. 5. Since February 7, 2021, the Veteran had persistent instability and wore a knee brace prescribed by a medical provider. 6. The Veteran is already in receipt of the maximum schedular rating available for limitation of motion of the right little finger. 7. The Veteran's service-connected disabilities precluded him from securing or maintaining substantial gainful employment from September 19, 2019. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 30 percent for depression prior to August 19, 2020, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130; Diagnostic Code 9411. 2. The criteria for a rating greater than 50 percent for depression from August 19, 2020, are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130; Diagnostic Code 9411. 3. The criteria for a disability rating greater than 10 percent for right knee limitation of flexion are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5260. 4. The criteria for a separate disability rating of 10 percent for right knee instability from September 28, 2012, to February 6, 2021, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 5. The criteria for a 20 percent rating for right knee instability from February 7, 2021, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257. 6. The criteria for a compensable rating for the right little finger disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5230. 7. The criteria for a TDIU are met from September 19, 2019. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1979 to October 1979, from October 1984 to October 1988, and from January 2002 to October 2010. This appeal was previously remanded by the Board in March 2020 for further development. Increased Ratings 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 Rating Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, 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 benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. A veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007). The basis of disability evaluation 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. 1. Entitlement to a rating greater than 30 percent prior to August 19, 2020, and greater than 50 percent thereafter, for depression. The Veteran's service-connected psychiatric disability is rated under Diagnostic Code 9411. Under the rating schedule, a 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, and recent events). A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. 38 C.F.R. § 4.130, DC 9411. A 70 percent rating is warranted where there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. A 100 percent rating is warranted when there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. 38 C.F.R. § 4.130, DC 9411. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term "such as" in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). When evaluating a psychiatric disorder, the rating agency shall consider the frequency, severity, and duration of psychiatric symptoms, length of remissions, and the veteran's capacity for adjustment during periods of remission. 38 C.F.R. § 4.126(a). The rating agency shall assign an evaluation based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner's assessment of the level of disability at the moment of the examination. Id. However, when evaluating the level of disability from a psychiatric disorder, the rating agency will consider the extent of social impairment but shall not assign an evaluation on the basis of social impairment. 38 C.F.R. § 4.126(b). As reiterated by the U.S. Court of Appeals for Veterans Claims (Court) in Bankhead v. Shulkin, 29 Vet. App. 10, 18 (2017), "VA must engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment." In this case, service connection for a depression disorder NOS, primary insomnia, and alcohol abuse was granted in an April 2011 Rating Decision. The agency of original jurisdiction (AOJ) assigned an initial 30 percent disability rating, effective October 2, 2010. In September 2012, the Veteran filed a claim for TDIU due to service-connected musculoskeletal disabilities. The Veteran filed a claim for service connection for another psychiatric disorder in December 2014 and the AOJ also considered the December 2014 claim as one for increased rating for the depressive disorder. The 30 percent rating was continued in the August 2015 rating decision, which is the subject of the present appeal. During the pendency of the appeal, the AOJ increased the rating to 50 percent effective August 19, 2020. See August 2020 rating decision. Pertinent to the present appeal, the Veteran was afforded VA examinations in March 2015 and August 2020. a. Period prior to August 19, 2020 In a March 2015 report of general information, the Veteran indicated that he had been taken to a mental hospital. During the March 2015 VA examination, the Veteran reported that he had experienced major changes in his daily activities since the last VA examination (in 2013), including difficulty concentrating, completing work-related tasks and social withdrawal, difficulty managing anger, difficulty interacting with co-workers and marital difficulties. He reported that he had gotten divorced and that for a year following the divorce, lived in his truck, and showered at his buddy's house. He reported that since that time, he had moved back into the house with his ex-wife but lived in a separate space from her. He also reported that he was unemployed due to his leg disabilities. He also reported that he was "Baker acted" (Florida Mental Health Act of 1971 allowing for involuntary institutionalization/examination) in April 2014 after making a comment on the phone about cleaning his guns all day. He reported that he had been prescribed medication to help him sleep but that he could not take it and that he relied on beer to help him fall asleep. He reported that he was a continuous drinker and drank about 18 beers per day to induce sleep on a daily basis. During the March 2015 VA examination, the examiner noted that the Veteran presented with an affect that was incongruent with his stated mood. The examiner noted that the Veteran smiled throughout the interview. The examiner also noted that the Veteran's thought processes were logical, linear, and goal-directed and that the Veteran was not suicidal or homicidal. The March 2015 VA examiner diagnosed alcohol use disorder as well as alcohol induced depressive disorder and noted that it was not possible to differentiate the symptoms attributable to each disorder. The March 2015 VA examiner determined that overall, the Veteran had occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress or symptoms controlled by medication. VA treatment records do not indicate worse symptoms than those reported during the March 2015 VA examination. In this regard, a September 2014 VA treatment record, the Veteran denied any psychiatric inpatient admission within the last year. Another September 2014 VA treatment record noted the Veteran's report that the prescribed sleeping medication was not helping and that the Veteran did not want a higher dose. The September 2014 VA clinician noted the Veteran's denial of any history of violence or suicide attempts. A March 2017 VA treatment record noted that the Veteran had normal affect and mood and was oriented to time, person, and place. A September 2018 VA treatment record noted that the Veteran took medication to treat his depressive disorder. A May 2019 VA occupational therapy consult had the opportunity to indicate that the Veteran had decreased psychosocial and psychological skills but did not do so. In April 2015, the Veteran's friend, J.L., submitted a letter explaining his observations of the Veteran being depressed and not sleeping much. J.L. also noted that he believed the Veteran drank to mask his feelings and pain to cope with life. J.L. also noted that the Veteran's service-connected knee injury ruined the Veteran's career. J.L.'s statement is consistent with the Veteran's reports to the March 2015 VA examiner and the VA treatment records. The Veteran was offered the opportunity to provide any outstanding private treatment records, including any records pertaining to any treatment or admittance, including under Florida's Baker Act, or authorize VA to obtain the same on his behalf, but he did not do so. See April 2020 correspondence. Based on the foregoing, the Board finds that a rating greater than 30 percent is not warranted prior to August 19, 2020. In this regard, the Veteran has not been shown to have a flattened affect in any of the VA treatment records or examination report during this period. Similarly, circumstantial, circumlocutory, or stereotyped speech was not shown during this period. The Veteran consistently denied panic attacks during this period, thus panic attacks more than once a week were not shown. There is no indication that the Veteran had difficulty in understanding complex commands during this period. There is no indication that any memory loss was worse than the mild memory loss included in the 30 percent disability rating. To the contrary, the evidence indicates that he was able to go to school from January 2011 to January 2015 and was employed from January 2015 to February 2018. See May 2020 TDIU application. The evidence does not indicate any impaired abstract thinking or disturbances of motivation and mood beyond the depressed mood included in the 30 percent disability rating. Again, the Veteran was able to go to school and work from January 2011 to February 2018. In the May 2020 TDIU application, the Veteran explained that he was no longer able to work due to the combination of all of his service-connected disabilities which includes physical and psychiatric disabilities. The Board acknowledges that the Veteran's alcohol consumption could be evidence of impaired judgment but neither the VA treatment records, nor the March 2015 VA examination expressly indicated that the Veteran's alcohol consumption resulted in impaired judgment. Additionally, the Veteran's divorce is arguably evidence of difficulty in establishing and maintaining effective work and social relationships. However, the Board finds that any difficulty with relationships was not of the type, frequency, duration, severity intended by the rating criteria as the Veteran reported that he maintained a relationship with his ex-wife and lived on the same premises with her. The Board acknowledges that the Veteran reported in his August 2020 VA examination that he resides alone since his wife's death in 2012 from lung cancer. Although this contradicts his statement in his earlier examination during the appeal period, regardless of when his wife passed away, the evidence shows that he was able to maintain a friendship with his buddy who submitted a letter on his behalf and a good relationship with his stepdaughter. See, e.g., August 2020 VA examination. The Board also acknowledges that a private vocational consultant opined that the Veteran was unable to work due to the combination of his service-connected disabilities, which included his psychiatric disability, during this period, beginning in February 2018. See September 2020 private vocational report. The evidence does not indicate that the Veteran was unemployable due solely to the psychiatric disorder. Further, the Board has considered all of the evidence cited in the private vocational report, including the March 2015 VA examination report and Veteran's statements cited herein. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, more probative than the Veteran's assessment of the severity of his disabilities. In sum, the Board finds that the preponderance of the evidence supports the currently-assigned 30 percent disability rating prior to August 19, 2020, and does not support a higher rating. b. Period from August 19, 2020 The Veteran was provided a VA examination in August 2020. The examiner diagnosed unspecified depressive disorder, insomnia disorder, and alcohol use disorder. The examiner noted that it was not possible to differentiate which symptoms were attributable to each diagnosis. The examiner noted that the symptoms contributed to each other and overlapped. During the August 2020 VA examination, the Veteran reported that his wife had died and that he continued to have a good relationship with his stepdaughter. The examiner noted symptoms related to the service-connected conditions included depressed mood, anxiety, chronic sleep impairment, difficulty in establishing and maintaining effective work and social relationships. The examiner also noted that the Veteran was cooperative and receptive and presented with good eye contact. The examiner noted that the Veteran's speech was normal in rate, tone and volume and thought processes were logical, linear and goal directed. The examiner noted that the Veteran's affect was mildly anxious. The examiner noted that the Veteran denied a history of experiencing perceptual disturbances and current suicidal or homicidal ideations. VA treatment records do not indicate any worse symptoms than those noted during the August 2020 VA examination. Based on the foregoing, the Board finds that a rating greater than 50 percent is not warranted since August 19, 2020. In reaching this conclusion, the Veteran acknowledges that during the August 2020 VA examination, the Veteran reported that his wife died in 2012. The report is inconsistent with the Veteran's prior report during the March 2015 VA examination that he was then living with his ex-wife. However, the Board finds that the inconsistent information is of the type of memory loss intended by the 50 percent rating criterion for impairment of short-and long term memory loss. The evidence does not indicate that the Veteran's memory loss was more severe than the impairment intended in the 50 percent disability rating. He has not been shown to have memory loss for names of close relatives, own occupation, or own name. Further, the Veteran has not been shown to have any of the 70 percent rating criteria symptoms including suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); or inability to establish and maintain effective relationships. The Board also acknowledges that a private vocational consultant opined that the Veteran was unable to work due ot the combination of his service-connected disabilities, which included his psychiatric disability, during this period, beginning in February 2018. See September 2020 private vocational report. Indeed, the Board is herein granting the claim for TDIU for the period from September 19, 2019. However, the evidence does not indicate that the Veteran was unemployable due solely to the psychiatric disorder at any time. Moreover, all of the psychiatric symptoms that contributed to the Veteran's unemployability, are compensated in the currently-assigned 50 percent disability rating. The Board acknowledges the Veteran's belief that his symptoms are of such severity as to warrant a higher rating; however, disability ratings are made by the application of a schedule of ratings which is based on average impairment of earning capacity as determined by the clinical evidence of record. Therefore, the Board finds that the medical findings, which directly address the criteria under which the disability is evaluated, more probative than the Veteran's assessment of the severity of his disabilities. In sum, the Board finds that the preponderance of the evidence supports the currently-assigned 50 percent disability rating from August 19, 2020, and does not support a higher rating. 2. Entitlement to a rating greater than 10 percent for a right knee disability. In this case, service connection for a right knee disorder was granted in an April 2011 Rating Decision. The agency of original jurisdiction (AOJ) assigned an initial 10 percent disability rating, effective October 2, 2010. The Veteran filed a claim for TDIU in September 2012 due, in part, to his right leg disorders "with brace," which the Board finds included his service-connected right knee disability. Following a periodic compensation and pension examination in March 2015, the 10 percent rating was continued in the March 2015 Rating Decision. The present appeal arises from the Veteran's disagreement with the March 2015 Rating Decision. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. In Mitchell v. Shinseki, 25 Vet. App. 32 (2011), the Court held that, although pain may cause a functional loss, "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Rather, pain may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance." Id., quoting 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity or atrophy of disuse. 38 C.F.R. § 4.45. The intent of the Rating Schedule is to recognize actually 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 Burton v. Shinseki, 25 Vet. App. 1, 5 (2011), the Court found that, when 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The intent of the rating schedule is to recognize painful motion with joint and periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or maligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Diagnostic Code 5003 provides that degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. 38 C.F.R. § 4.71a, Diagnostic Code 5003. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent rating is warranted if there is X- ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent rating is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Normal flexion of the knee is to 140 degrees, and normal extension of the knee is to 0 degrees. 38 C.F.R. § 4.71, Plate II. Generally, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weightbearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 168-69 (2016); 38 C.F.R. § 4.59. Under Diagnostic Code 5260, leg flexion limited to 60 degrees warrants a noncompensable rating. Leg flexion limited to 45 degrees warrants a 10 percent rating. Leg flexion limited to 30 degrees warrants a 20 percent rating. Leg flexion limited to 15 degrees warrants a 30 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5260. Under Diagnostic Code 5261, leg extension limited to 5 degrees warrants a noncompensable rating. Leg extension limited to 10 degrees warrants a 10 percent rating; 15 degrees warrants a 20 percent rating; 20 degrees warrants a 30 percent rating; 30 degrees warrants a 40 percent rating and 45 degrees warrants a 50 percent rating. See 38 C.F.R. § 4.71a, Diagnostic Code 5261. A knee disability can be rated for both limitation of leg flexion under Diagnostic Code 5260 and limitation of leg extension under Diagnostic Code 5261. See VAOPGCPREC 9-2004 (Sept. 17, 2004). Additionally, General Counsel Opinion 9-98 directs that with respect to Diagnostic Code 5259, limitation of motion can be a relevant consideration so the provisions of 38 C.F.R. § 4.40 and 4.45 must be considered. VA regulations have recently changed with respect to musculoskeletal conditions, and in particular instability. If 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. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021, and the criteria that is more favorable to the Veteran will be applied. From February 7, 2021, Diagnostic Code 5257 provides ratings for either "recurrent subluxation or instability" or "patellar instability." With respect to recurrent subluxation or instability, from February 7, 2021, Diagnostic Code 5257 provides for a 10 percent rating for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device. A 20 percent disability rating is warranted for either: (1) a sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability and a medical provider prescribes either an assistive device or bracing for ambulation; or (2) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device or bracing for ambulation. A 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribes both an assistive device and bracing for ambulation. With respect to patellar instability, from February 7, 2021, Diagnostic Code 5257 provides for a 10 percent disability rating for a diagnosed condition involving the patellofemoral complex with recurrent instability (without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating may also be assigned for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: brace, cane, or walker. A 30 percent disability rating is warranted for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. VA's General Counsel has stated that when a knee disorder is rated under 38 C.F.R. § 4.71a , Diagnostic Code 5257 and an appellant also has limitation of knee motion which at least meets the criteria for a noncompensable evaluation under 38 C.F.R. § 4.71a , Diagnostic Code 5260 or 5261, separate evaluations may be assigned for arthritis with limitation of motion and for instability. However, General Counsel stated that if an appellant does not meet the criteria for a noncompensable rating under either Diagnostic Code 5260 or Diagnostic Code 5261, there is no additional disability for which a separate rating for arthritis may be assigned. VAOPGCPREC 23-97 (July 1, 1997), published at 62 Fed. Reg. 63,604 (1997). If a rating is assigned under the provisions for other knee impairment (38 C.F.R. § 4.71a, Code 5257) a separate 10 percent rating may be assigned where some limitation of motion, albeit noncompensable, has been demonstrated. See VAOPGCPREC 9-98, 63 Fed. Reg. 56,704 (1998). VA's General Counsel has also stated that separate ratings under Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. VAOPGCPREC 9-04 (September 17, 2004), published at 69 Fed. Reg. 59,990 2004). The rating schedule also provides that dislocation of semilunar cartilage, with frequent episodes of "locking," pain, and effusion into the joint, warrants a 20 percent evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5258. Diagnostic Code 5259 provides for the assignment of a maximum 10 percent rating based on symptomatic removal of the semilunar cartilage. Genu recurvatum is rated under Diagnostic Code 5263, with a maximum rating of 10 percent. Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the "same disability" or, more appropriately in this case, the "same manifestation" under various diagnoses is to be avoided. For purposes of determining whether the Veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of or overlapping with the symptomatology of the other two conditions. In this case, the Veteran was afforded VA examinations in July 2013, March 2015, and August 2020. During the July 2013 VA examination, the Veteran denied any flare-ups that impacted the function of the knee or lower leg. The examiner noted that the Veteran had flexion to 130 degrees and full extension. The examiner noted that there was no evidence of painful motion. The Veteran did not have any additional limitation of motion following repetitive use testing. The Veteran did not have tenderness or pain to palpation for joint line or soft tissues of the knee. Muscle strength testing was normal. Instability testing was normal. The Veteran denied a history of recurrent patellar subluxation or dislocation. The Veteran denied a history of shin splints. The examiner noted that the Veteran had a history of a meniscal tear. The examiner noted that the residual symptoms of the meniscal tear were stiffness, pain, and decreased range of motion. The examiner noted that the Veteran regularly used a brace and a cane for the right knee disability. The examiner also noted that the Veteran's right knee disability would affect employment in that strenuous physical employment was limited due to the right knee disability. As explained in the March 2020 remand, the March 2015 VA examination report was inadequate with respect to findings regarding limitation of motion. However, the Board finds the report has some probative value with respect to the Veteran's reports as well as findings other than range of motion. During the March 2015 VA examination, the Veteran reported that the right knee was unstable and buckled sometimes. He also denied flare-ups. The Veteran reported that he regularly wore a brace for the right knee for ambulatory support because the right knee was unstable. The Veteran reported that he had right knee arthroscopy in 2008 for a meniscus tear in the right knee. The Board also notes that service-connection is already in effect for the scar related to such surgery. During the August 2020 VA examination, the examiner noted that the Veteran's right knee disability interfered with climbing, squatting, kneeling, standing, or walking for longer than 10 minutes. The examiner noted that the Veteran regularly used a brace and a cane due to the right knee disability. On objective range of motion testing, the Veteran had flexion to 120 and full extension. The examiner estimated that even during flare-ups and after repetitive use, the Veteran's flexion would remain 120 degrees and extension would continue to be full. The examiner noted that although the Veteran's range of motion would be unchanged in these situations, the Veteran's functional ability would be limited due to increased pain, lack of endurance, and weakness. Objective tests for instability were all normal. The Board notes that an April 13, 2011, VA treatment record indicates the Veteran was issued a brace for the right knee as well as a TENS unit. Remaining VA treatment records do not indicate worse findings than those shown during the VA examinations. The Veteran's friend, J.L., submitted a letter in April 2015 noting observations of the Veteran's painful knee since service. Based on the foregoing, the Board finds that a higher rating is not warranted for limitation of flexion. In this regard, flexion has not been shown to be limited to 30 degrees or less, even during flare-ups or after repetitive use at any point pertinent to the appeal. Likewise, a separate rating is not warranted for limitation of extension as no such limitation has been shown even during flare-ups and after repetitive use. In reaching these conclusions, the Board has considered the DeLuca factors. Indeed, VA has already granted a compensable rating based upon the Deluca factors because the Veteran has painful flexion that is limited. However, a higher rating is not warranted for painful limitation of flexion because even during flare-ups, the Veteran's flexion remains 120 degrees, which does not meet the threshold for even a 10 percent rating, much less a 20 percent disability rating. The Board finds that the pain associated with the Veteran's limitation of flexion is contemplated in the currently-assigned 10 percent rating. The Board has also considered whether separate or higher ratings are warranted under other pertinent diagnostic codes. Resolving doubt in favor of the Veteran, the Board finds that a separate 10 percent rating for instability in the right knee is warranted. In this regard, the Veteran credibly reported giving way and buckling so as to warrant a 10 percent rating for instability of the right knee. See English v. Wilkie, 30 Vet. App. 347. 352-53 (2018) (finding that DC 5257 does not require objective medical evidence of lateral instability for a rating to be assigned and when weighing evidence to determine whether there is lateral instability, the Board cannot find objective medical evidence is automatically more probative than lay evidence). The Board notes that VA treatment records consistently noted the Veteran's complaints of buckling and giving way and needing to wear a brace on the right knee. See e.g. July 2013 VA examination report. In May 2019, the Veteran sought a new knee brace for the right knee due to the knee buckling. The VA clinician noted that the Veteran had chronic right knee pain due to osteoarthritis. Further, an August 2019 VA treatment record noted that the Veteran's right strength was limited to 4 out of 5 on flexion and extension. Moreover, the Board finds the appropriate date for the separate rating for the right knee is September 28, 2012, the date of the claim for TDIU, which included the claim for increased rating for the right knee. Additionally, the Board has considered whether the Veteran is entitled to a separate rating for his right knee instability during the one-year look back period prior to the date of the claim for increased rating; however, as treatment records show prescription of the right knee brace more than one year prior to the claim for increased rating, there is no indication that the right knee disability worsened during the one-year period prior to the claim. 38 C.F.R. § 3.400(o). Further, the Board acknowledges that the regulation regarding instability has changed during the pendency of the appeal. The Board resolves doubt in favor of the Veteran and finds that the Veteran has experienced persistent mild instability, for more than one year prior to the September 2012 claim, thereby meeting the criteria for a 10 percent rating for instability prior to the regulation change effective February 7, 2021. Further, the Board finds that a 20 percent rating is warranted from February 7, 2021, as the evidence supports a finding of persistent instability after surgical repair that requires a prescription by a medical provider for one of the following: brace, cane, or walker. In this case, the evidence supports a finding that the Veteran's knee brace was prescribed by a medical provider. See May 2019 VA treatment record. It is known that the Veteran underwent two right knee surgeries. A rating greater than 10 percent is not warranted for instability prior to February 7, 2021, however, as the results of objective, instability testing was normal at all times pertinent to the appeal. See e.g. July 2013, March 2015, and August 2020 VA examinations. The Board has also considered whether the Veteran is entitled to a separate rating under DC 5259 for symptomatic removal of the semilunar cartilage. The Board acknowledges that the Veteran had a partial meniscectomy in May 2008 and a diagnostic meniscectomy in April 2009; however, the August 2020 VA examiner indicated that the only residuals of the meniscectomy were the painful limitation of flexion for which the Veteran is already service-connected. Additionally, ankylosis, tibia or fibula impairment, and genu recurvatum are not shown by the evidence of record. As such, the Veteran is not entitled to a disability rating under Diagnostic Codes 5256, 5262, or 5263. 38 C.F.R. § 4.71a. For these reasons, the Board resolves doubt and assigns a separate 10 percent disability rating, but no higher, for right knee instability from September 28, 2012, to February 6, 2021, and a 20 percent rating for right knee instability since February 7, 2021. Additionally, the preponderance of the evidence is against a higher rating for limitation of flexion. To the extent that the Veteran's claims for increased ratings are denied, the preponderance of the evidence is against those claims and, as such, the benefit of the doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 3. Entitlement to a compensable rating for a right hand little finger disability. The Veteran asserts that he is entitled to a compensable disability rating for his service-connected right little finger. Service connection for the right hand little finger was granted in an August 2013 rating decision and rated as noncompensable, effective September 28, 2012. The Veteran filed a claim for increased rating in December 2014. The noncompensable rating was continued in the August 2015 Rating Decision which is the subject of the present appeal. The Veteran's little finger disability is rated as noncompensable under Diagnostic Code 5230, applicable to limitation of motion of the ring or little finger. A 0 percent, or noncompensable, disability rating is the only rating available for limitation of motion of the ring or little finger under Diagnostic Code 5230. 38 C.F.R. § 4.71a. VA recently revised regulations concerning the musculoskeletal system however the diagnostic codes pertinent to the finger ratings were not changed. Pertinent to the present appeal, the Veteran was provided with VA examinations for the right little finger in August 2015 and December 2019. During the August 2015 VA examination, the Veteran reported that his finger locks up and that he tries to pull on it to unlock it. He reported flare-ups also described as his finger locking up. During the December 2019 VA examination, the Veteran had limitation of flexion to 70 degrees at all three joints. The Veteran also had extension to 70 degrees at all three points. There was no gap between the pad of the thumb and the Veteran's fingers. The examiner noted that there was pain in all ranges of motion. There was also moderate localized tenderness or pain on palpation of the joints or associated soft tissue. The examiner also noted that pain caused functional loss with repeated use over a period of time as well as during flare-ups. The examiner estimated that such limitation in terms of range of motion during repeated use over time as well as during flare-ups resulted in flexion and extension to 70 degrees at each joint in the little finger MCP, PIP, DIP. The examiner noted that there was no ankylosis in the right little finger. During the December 2019 VA examination, the Veteran reported functional impact including difficulty gripping/grasping items, difficulty lifting and carrying items, both of which led to issues completing physical tasks at work as well as administrative tasks at work. Based on the foregoing, the Board finds that a compensable rating is not warranted for the right little finger. The Board acknowledges that the evidence of record shows that the Veteran has reported pain on movement of his service-connected right little finger. While it is true that painful joint motion generally warrants the minimum compensable rating for the joint, there is no level of disability under the Diagnostic Code applicable to impairment of the little finger that warrants a compensable rating. As such, a compensable rating based on painful movement is not available for the Veteran's service-connected little finger disability. Sowers v. McDonald, 27 Vet. App. 472, 480 (2016). As the Veteran is in receipt of the highest schedular rating, there is no basis to award a higher rating. The Board has also considered the other Diagnostic Codes pertaining to the ring finger. Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability. 38 C.F.R. § 4.14. However, even if the Veteran's little finger was ankylosed, the rating criteria do not provide a compensable rating. 38 C.F.R. § 4.71a, Diagnostic Code 5227. The Board acknowledges the Veteran's reports regarding limitations on occupational tasks and notes that it has herein granted a TDIU due to the combination of all of the Veteran's service-connected disabilities. Thus, the Veteran will be compensated for any interference with his occupation due to the right little finger. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's appeal for a compensable disability rating for his service-connected right little finger. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. Entitlement to TDIU. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran's favor. 38 C.F.R. § 4.3. In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his or her age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran's earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). VA regulations also provide that marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). VA regulations also provide that for the purposes of the section on TDIU, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. In this case, service connection is in effect for a depressive disorder (30 percent prior to August 19, 2020, and 50 percent thereafter), right lower extremity radiculopathy of the sciatic nerve (20 percent from September 19, 2019), left lower extremity radiculopathy of the sciatic nerve (20 percent from September 19, 2019), right lower extremity radiculopathy of the femoral nerve (20 percent from September 19, 2019), left lower extremity radiculopathy of the femoral nerve (20 percent from September 19, 2019), right knee with osteoarthritis (10 percent), right knee instability (10 percent prior to February 7, 2021, and 20 percent thereafter), left hip arthritis (10 percent), tinnitus (10 percent), lumbar sprain and scoliosis with degenerative arthritis (20 percent prior to March 23, 2015, and 10 percent thereafter), left hand fracture middle finger (10 percent from September 19, 2019), painful scar left dorsum hand (10 percent from September 19, 2019), right ear hearing loss (noncompensable), left hand ring finger (noncompensable), left hallux valgus foot deformity (noncompensable), bilateral hearing loss (noncompensable), hiatal hernia and GERD (noncompensable), scar right knee (noncompensable), right hand little finger (noncompensable), dermatitis of the hands (noncompensable), and scar left hand (noncompensable). The Veteran has a combined evaluation of 60 percent from October 2, 2010, and 90 percent from September 19, 2019. Therefore, the schedular criteria are met for the period from September 19, 2019. The Veteran submitted a VA 21-8940 Application for Increased Compensation Based on Unemployability in May 2020. At that time, the Veteran reported that he had last worked full time in February 2018 (he did not specify the exact date). He reported that all of his service-connected disabilities prevented him from securing or following substantially gainful occupation. He reported that he had completed two years of community college and had work experience as an aircraft mechanic. The Veteran submitted a September 2020 private vocational assessment in support of his claim for TDIU. The consultant reviewed the Veteran's pertinent medical, educational, and work history records, including the claims file and VA examinations and determined that the Veteran had been unable to obtain substantially gainful occupation since February 2018 due to the Veteran's service-connected disabilities. Upon review of the Veteran's work experience, the consultant noted that the Veteran worked as a sheet metal worker, aircraft mechanic, and appliance technician. The counselor determined that the Veteran's work was skilled work within the medium and heavy level work demands. The consultant also noted that according to the U.S. Department of Labor Dictionary of Occupational Title's, medium level work required standing and/or walking at least 6 to 8 hours out of an 8 hour workday and exerting 20 to 50 pounds of force occasionally and/or 10 to 25 pounds of force frequently, and/or up to 10 pounds of force constantly to move objects and perform tasks. The consultant noted that heavy work required even heavier exertion with 6 to 8 hours of standing and/or walking. The consultant noted that the Veteran's occupations also required above-average reasoning and mathematical abilities, the ability to perform a variety of duties, attain precise set limits, tolerances, standards, and make judgments and decisions on an independent basis. Based on review of the file, including medical records and examination reports, the consultant determined that given the chronicity and permanency of the Veteran's functional limitations as a result of his service-connected disorders, the Veteran had not been able to secure or consistently perform any substantially gainful occupation since February 2018. In reaching this conclusion, the consultant specifically cited the Veteran's memory loss, difficulty concentrating and completing work-related tasks, social withdrawal, difficulty managing anger, difficulty interacting with co-workers, as well as the knee condition that caused disturbance of locomotion and interference with standing and required use of a knee brace. The private consultant also noted that even in a sedentary, unskilled occupation, the Veteran would be required to work consistently for at least two hours at a time before being allotted short breaks and lunch. The consultant determined that based on her 35 years of experience, review of the claims file, including medical records and examination reports, the Veteran would not be able to perform and maintain substantially gainful employment without accommodation, and had not been able to do so since February 2018. Although not specifically cited by the private vocational consultant, the Board also notes that the Veteran has significant, service-connected, bilateral lower extremity radiculopathy affecting the sciatic and femoral nerves in each lower extremity. Based on the foregoing, the Board resolves doubt in favor of the Veteran and finds that the Veteran was unemployable from at least September 19, 2019, when the schedular criteria for TDIU are met. The Board is herein remanding the period prior to September 19, 2019, below for extraschedular consideration. REASONS FOR REMAND 1. Entitlement to service connection for throat cancer. VA opinions were obtained in November 2019 and December 2019. The November 2019 VA examiner opined that it was less likely than not that the Veteran's cancer was due to or the result of the Veteran's alcohol abuse. The examiner acknowledged that alcohol use was one of the risk factors for the Veteran's type of cancer but that there was no evidence to support a direct cause and effect between the Veteran's alcohol use and his cancer. The AOJ sought an addendum opinion in December 2019. The December 2019 VA examiner determined that the Veteran's alcohol use disorder may have certainly contributed to his cancer but to say this with certainty or to assign a percentage of causation would be speculative. In the Veteran's Substantive Appeal Form 9, the Veteran asserted that the VA opinions were inadequate as the [December 2019] VA examiners did not adequately explain why they could not express an opinion as to whether the Veteran's service-connected alcohol use led to the throat cancer. In addition, the Veteran asserted that the examiner should have addressed whether the Veteran's cigarette smoking was self-medication for his service-connected psychiatric disorder. The Veteran requested a new VA examination. In March 2020, the AOJ obtained a VA addendum opinion. At that time, the VA examiner opined that the Veteran's squamous cell carcinoma of the throat was less likely than not incurred in or caused by service. The examiner explained that the opinion was based on medical literature review and review of the Veteran's medical records. The examiner did not provide a narrative explanation for the opinion but cited various service records regarding exposure to solvents in service and noted an August 1987 occupational exposure form which documented that the Veteran had started smoking 10 years earlier. The March 2020 VA addendum opinion did not address the specific concern raised by the AOJ which was that adequate rationale was not provided as to whether the Veteran's service-connected alcohol use disorder could have caused or aggravated the Veteran's throat cancer. Further, although the examiner cited the service record which indicated that the Veteran's cigarette smoking began prior to service, the examiner did not address the AOJ's question of whether the Veteran's smoking was self-medication for the service-connected psychiatric disorder. For these reasons, another addendum opinion is required. While on remand, any outstanding VA treatment records should also be obtained. 2. Entitlement to TDIU prior to September 19, 2019. The Veteran's claim for TDIU arose as part and parcel of his claims for increased ratings. Following the March 2020 Board remand, the Veteran submitted a formal application for TDIU indicating that he had last worked in February 2018. Thus, the claim has been pending since prior to September 19, 2019, when the Veteran's combined disability rating met the schedular criteria. As discussed above, a private vocational consultant has found that the Veteran was unemployable since February 2018. As the evidence indicates that the Veteran was unemployable due to service-connected disabilities prior to the date that the Veteran's service-connected disabilities met the schedular criteria for TDIU, the appeal should be referred to the Director of Compensation Services for extraschedular consideration. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Obtain a VA opinion to address the etiology of the Veteran's throat cancer. The examiner should review the electronic claims file, and the report of examination should include discussion of the Veteran's documented history and assertions. The examiner is asked to address the following: (a.) Is it at least as likely as not (i.e., there is a 50 percent or greater probability) that the disorder was caused or aggravated by the Veteran's service-connected depression with alcohol use disorder? In reaching any conclusion, the examiner is asked to consider whether the Veteran's alcohol use aggravated the Veteran's throat cancer. The examiner should also address the Veteran's assertion that his smoking was self-medication for his service-connected psychiatric disorder. (b.) Complete rationale is required for any opinion rendered. 3. Refer the case to VA's Director of Compensation for consideration of entitlement to TDIU under the provisions of 38 C.F.R. § 4.16(b) for the period prior to September 19, 2019. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Donna D. Ebaugh, 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.