Citation Nr: 21028225 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-24 681 DATE: May 10, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is granted. REMANDED Entitlement to service connection for hypertension (HTN) is remand. Entitlement to service connection for gastroesophageal reflux disease (claimed as GERD) is remand. Entitlement to service connection for degenerative joint disease (DJD) of the bilateral knees (claimed as bilateral knee pain and arthritis) is remanded. Entitlement to service connection for chronic back pain is remanded. Entitlement to service connection for carpal tunnel syndrome (also claimed as trigger finger) is remand. Entitlement to service connection for pes planus is remanded. Entitlement to service connection for bilateral neuropathy (also claimed as restless leg syndrome) is remanded. Entitlement to service connection for depression, as secondary to DJD of the bilateral knees is remanded. Entitlement to an initial compensable rating for residuals of a boxer fracture to the right metacarpal is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has, or has had at any time during the appeal, a current diagnosis of bilateral hearing loss for VA purposes. 2. It is as likely as not that the Veteran's tinnitus had its onset in service. CONCLUSIONS OF LAW 1. The criteria for service connection for bilateral hearing loss are not met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 3.385. 2. The criteria for service connection for tinnitus are met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Army from August 1980 to August 1983. Thereafter he served from December 1987 to May 1989 and was discharged under honorable conditions. The Veteran has additional unverified periods of Reserve service. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In the Veteran's July 2015 Substantive Appeal, he initially requested a videoconference hearing before a Veterans Law Judge. A hearing was scheduled in January 2019. However, in January 2019 correspondence, the Veteran, by way of his attorney, withdrew his request for a hearing and requested the above issues be adjudicated based on the record. Accordingly, adjudication may proceed on the merits. By way of history, within a December 2018, correspondence, the Board denied an attempt by the Veteran's attorney, David A. Standridge, to withdraw as his representative from the instant appeal. The Board's correspondence explained in detail that the withdrawal request was denied as it was neither timely nor in the required procedural form of a motion which asserted good cause for removal. The Veteran, and his attorney, David A. Standridge, received a copy of this denial. On December 17, 2020, a new VA Form 21-22a was received listing Disabled American Veterans as the Veteran's representative. Per the code, an appellant has 90 days from the date of notification that his/her appeal is being transferred to the Board to request a change in representation and, after that 90-day period, good cause is required for a change in representation. 38 C.F.R. § 20.1304 (b). September 29, 2016, is the date of the notification letter to the Veteran that his appeal was transferred to the Board. Thus, the request for change was submitted well outside the 90-day period. No good cause was submitted with the request for change either at the time of submitting the VA Form 21-22a or at any point thereafter. Given the above, the Veteran's existing representative, attorney David A. Standridge, remains intact for the purpose of this adjudication. That said, David A Standridge, submitted argument in support of the Veteran's appeal in a January 2019 brief. Importantly, this submission was prepared, and received, after the Veteran's attempted request to change representatives. Review of the brief, and the adjoining exhibits, is reflective of active communication and collaboration with the Veteran as it contains an array of newly obtained statements from friends, family, and fellow servicemen as well as medical articles in support of the claim. The Board finds that the Veteran has been accorded full right to representation in this stage of the appeal and will proceed to adjudication. 38 C.F.R. § 20.5. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Certain chronic diseases will be presumed related to service if they were shown as chronic (reliably diagnosed) in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if they were noted in service, with continuity of symptomatology since service that is attributable to the chronic disease. 38 U.S.C. §§ 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2013); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303, 3.307, 3.309. 1. Entitlement to service connection for bilateral hearing loss. The threshold for normal hearing is from 0 to 20 decibels. Hensley v. Brown, 5 Vet. App. 155, 157(1993). For the purposes of applying the laws administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The Veteran claims service connection for bilateral hearing loss, which he asserts began in service. His service treatment records confirm routine hazardous noise exposure with an H1 hearing loss profile, however, they do not show a diagnosis of bilateral hearing loss for VA purposes. To that end, military noise exposure alone is not considered to be a disability, rather, it must be shown that the military noise exposure caused hearing loss for VA purposes. In December 2013, the Veteran underwent a VA examination. Although he was diagnosed with left ear sensorineural hearing loss, the findings of that examination did not meet the level of severity required to qualify as a disability for VA purposes. Additionally, his right ear hearing was deemed normal. There are no other competent examinations of record. The Veteran has neither asserted worsening since this examination nor do his VA treatment records suggest that such occurred. Service connection may only be granted for a current disability; when a claimed condition is not shown, there may be no grant of service connection. See 38 U.S.C. § 1131; Rabideau v. Derwinski, 2 Vet. App. 141 (1992). In the absence of proof of a present disability, there can be no valid claim for service connection. See Degmetich v. Brown, 104 F.3d 1328(1997); Brammer v. Derwinski, 3 Vet. App. 223, 225(1992). The requirement that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim, even if the disability resolves prior to the adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319 (2007). The preponderance of the evidence fails to establish a current diagnosis of bilateral hearing loss for VA purposes at any time during the appeal period. The December 2013 examiner reviewed the record and considered the Veteran's lay statements and symptomology but determined that he did not have bilateral hearing loss for VA purposes based on the results of audiological testing. Although the Veteran may believe that he has bilateral hearing loss for VA purposes, his lay assertions are outweighed by the objective evidence showing no current hearing loss disability. In rendering this determination, the Board acknowledges that the below remand requests outstanding treatment medical records pertaining to other claims for service connection. However, the record, to include the Veteran's lay assertions, submitted filings, private records, and VA examination report, is negative for any indication that the Veteran received audiologic care or testing outside of VA treatment during the period on appeal. Similarly, VA treatment records do not indicate the Veteran received private care, let alone audiological care, proximate to the period on appeal. In that regard, the records requested below were prepared prior to the period on appeal and therefore still would not support the presence of a current disability which is the bases of the foregoing denial. In the absence of evidence of a current disability, the claim for bilateral hearing loss must be denied. The preponderance of the evidence is against the claim. As a result, there is no reasonable doubt to be resolved, and the claim for service connection for bilateral hearing loss disability is denied. 38 U.S.C. § 5107 (b). 2. Entitlement to service connection for tinnitus. The Veteran seeks service connection for tinnitus. A December 2013 examination report contains the Veteran's complaints of recurrent tinnitus. Element (1) of Shedden is met. The service treatment records are silent regarding tinnitus. Nevertheless, the Veteran asserts his condition arose as a result of exposure to hazardous noise in-service. As stated above, service treatment records confirm the Veteran was regularly exposed to hazardous noise and received an H1 hearing loss profile. Records also confirm he was provided with protective noise equipment of ear plugs. Element (2) of Shedden is met. Turning to Shedden element (3), while the record does not reflect complaints or treatment of tinnitus in service, the lay evidence supports the Veteran's claim of experiencing tinnitus since service. The Veteran states that he had ringing in the ears since service, manifesting daily, albeit intermittently. Taken together with the circumstances of the Veteran's service and the aforementioned lay assertions, the totality of the evidence supports the finding that the onset of the Veteran's current tinnitus occurred during service, and that the symptoms of his disability have progressed to this time. The Veteran is entitled to service connection for tinnitus. The Board has considered the December 2013 VA opinion that the Veteran's tinnitus is not related to service. However, the examiner provided a conclusory opinion that tinnitus is typically associated with hearing loss without rationalizing the determination against the Veteran's lay assertions, military experiences, and in-service records. The opinion is therefore inadequate and outweighed by the evidence of record. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 (2008). REASONS FOR REMAND 3. Entitlement to service connection for hypertension. 4. Entitlement to service connection for GERD. The claims file appears incomplete. On November 2012 VA compensation application, the Veteran reported receiving treatment from a private care provider Dr. A.R. Currently, the claims file contains only partial records from Dr. R for the period of March 2001 to May 2003. That said, review of the private treatment records in evidence strongly suggests that there are outstanding records dated prior March 2001 and after September 2003. The claims file is negative for any attempt made by the RO to request these records. A remand is required as the records in evidence, note ongoing treatment for hypertension, GERD, depression, sleep disturbance, as well as, knee, and low back conditions. Given the above, obtaining these outstanding treatment records is relevant to ascertaining the etiological and contemporaneous history of the Veteran's claims. If relevant evidence, suggesting a correlation between the Veteran's claimed GERD and/or hypertension and service are obtained, the Veteran should be afforded a VA examination addressing the etiology of his conditions. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). Additionally, a remand is warranted to obtain personnel records. The Veteran's DD 214 indicates he has at least three years of inactive duty service in between his two periods of active service. Service treatment records also document examinations and reported symptomatology during these periods. Although the claims file contains correspondence with the National Personnel Records Center requesting records, personnel records are not in evidence. These records must be obtained. 5. Entitlement to service connection for bilateral knee DJD. 6. Entitlement to service connection for chronic back pain. 7. Entitlement to service connection for carpal tunnel syndrome. 8. Entitlement to service connection for pes planus. 9. Entitlement to service connection for bilateral neuropathy. 10. Entitlement to service connection for depression. The Veteran should be afforded a VA examination and/or opinions as to his claimed knee, low back, carpal tunnel, bilateral neuropathy, and depression disabilities. As to the knee, the Veteran was afforded a December 2013 VA knee examination wherein the examiner opined against the Veteran's claims for service-connection. In January 2019, subsequent to this examination, the Veteran's attorney submitted an array of lay evidence from family and fellow troop members confirming his reports of in-service injury and continued pain thereafter. His attorney also submitted internet articles which assert that his specific disabilities are etiologically related to service. Given this additional evidence, a remand is required to allow for obtaining an addendum opinion. See Barr v. Nicholson, 21 Vet. App. 303 (2007). As to the low back, to date, the Veteran has not been afforded a VA examination or opinion as to his claimed chronic back pain. Given the January 2019 new evidence submitted in support of his claim, which is suggestive of a correlation between his condition and service, he should be afforded a VA examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81-83 (2006). As to carpal tunnel syndrome, the Veteran asserts his conditions are etiologically related to service. Service treatment records reflect treatment and report of wrist pain as well as injuries to his hands. The Veteran has yet to be afforded a VA examination opinion addressing his contentions, in conjunction with service treatment medical records. This should be obtained on remand. In addition, the claims file is suggestive that the Veteran suffered from preexisting bilateral wrist fractures prior to service. An opinion is required to ascertain whether the Veteran's current claimed bilateral carpal tunnel syndrome is etiologically related to these preexisting disabilities. The examiner should also opine whether the Veteran's service-connection finger injury has aggravated his carpal tunnel. As will addressed below, the Veteran asserts that his service-connected finger disability has resulted in an impaired grip ability. Given the above, a remand is warranted. Id. As to pes planus, a December 2013 VA examiner opined that the Veteran suffered from preexisting pes planus which was not aggravated by service. In rendering this opinion, the examiner failed to address relevant service treatment records which are suggestive of worsening. In that regard, the examiner opined that the Veteran's condition remained mild throughout service but did not address service treatment records which documented greater symptomatology. To that end, the examiner failed to address documented reports of arch pain due to overuse as well as a left ligament injury following improperly jump from a platform. Given this relevant undiscussed information, a remand for an addendum opinion is required. See Barr, supra. Remand is also warranted given the suggestion of outstanding relevant records. As to neuropathy, VA treatment records indicate the Veteran has been diagnosed with neuropathy of the bilateral feet, lumbar peripheral neuropathy, and left lower extremity radiculopathy associated with the thigh. Service treatment records document injury to the Veteran's legs, shins, knees, and feet. Moreover, the Veteran and fellow serviceman indicate he suffered injury to his back. Given the Veteran's varying diagnoses, their associations with other disabilities still pending service-connection, and the suggestion of their association to service generally, the Board finds it appropriate to get a VA examination and opinion clarifying diagnosis and addressing the etiology of these claimed conditions. See McLendon, supra. As to depression, the Veteran claims that he suffers from depression etiologically related to his claimed DJD of the knees. VA treatment records note a diagnosis of depression and contain the Veteran's reports of being "depressed" about his physical state and pain. The Veteran's spouse has also confirmed her belief that he experiences depression related to his physical impairments. The Veteran has not been afforded a VA examination to address his contentions. Given the evidence of record, a remand for an examination and opinion is warranted. Id. In addition, August 2014 VA treatment records indicate that the Veteran was working with an attorney to obtain Social Security Administration Disability Benefits in relation to his depression. These records are not in evidence and have not been requested. On remand, they should be requested. See Golz v. Shinseki, 590 F.3d 1317, 1322 (2010). Finally, as indicated above, personnel records are not associated with the claims file. Such records are particularly important as July 1988 treatment records note the Veteran underwent a mental status examination following being punished for unspecified misconduct. Once collected this evidence should addressed by the examiner. Remand for the aforementioned claims is also appropriate as there are potentially relevant treatment records prepared prior to the period on appeal which might illuminate the etiological history of the Veteran's conditions. 11. Entitlement to an initial compensable rating for residuals of a boxer fracture to the right metacarpal. The Veteran reports that an increase rating for his finger condition is warranted. In January 2019, he asserted a compensable rating is warranted as his finger disability either greatly diminishes or precludes his ability to have "the complete use of his hand to grip assistive devices such as a canes and walkers to ambulate." In turn, his functional ability and mobility is limited. The Veteran's most recent VA examination in December 2013 did not address this contention as his functional impairment was noted as difficulty typing and he did not require assistive devices for mobility. The Board finds that a new VA examination is necessary to accurately access the functional impairment associated with the Veteran's service-connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997). The matters are REMANDED for the following action: 1. Ask the Veteran to complete and return VA Form 21-4142, Authorization and Consent to Release Information, for any private treatment records identified by him as pertinent to his claim for service connection. The RO should specify that it is seeking all records prepared following military service. (a.) The Board is particularly interested in treatment records from Dr. A.R. After obtaining the completed VA Form 21-4142, make reasonable efforts to obtain any outstanding private treatment records. (b.) The RO should also obtain all outstanding VA treatment medical records prepared since 2015, as the claims file is devoid of such records. (c.) Any records so obtained should be associated with the claims file. If any records cannot be located, provide the Veteran notice and an opportunity to respond. 2. Obtain complete service personnel records for the Veteran and take appropriate steps to verify the Veteran's active military service, including all periods of active duty for training and inactive duty for training. 3. Obtain and associate with the claims file all records pertaining to the Veteran concerning a claim for disability benefits from the Social Security Administration, to include all evidence and copies of any disability determination. Document all requests for information as well as all responses in the claims file. 4. If, the aforementioned development yields evidence suggesting a correlation between the Veteran's claimed hypertension and/or GERD and service afford him a VA examination as to the nature and etiology of the disabilities. 5. Following completion of the development directed in #1, #2, and #3, obtain a VA examination as to the nature and etiology of the Veteran's claimed low back pain. Following consideration of the record, to include this Remand, and examination the examiner must: (a.) Identify all diagnosed low back disabilities. (b.) Opine whether any low back disabilities diagnosed during the period on appeal, to include arthritis, are at least as likely as not (at least a 50 percent probability) related to service, to include as due to the Veteran's reported in-service injuries, and reported overuse during service. (c.) The examiner must address the Veteran's January 2019 Appellate Brief, the assertions made therein, and the associated exhibits. As to exhibits the examiner must specifically address the relevance, if any, of the lay statements supporting continuity of symptomatology following in-service back injury and the submitted internet articles discussing the procession of back injury and osteoarthritis. With specific regard to the relevance of the submitted internet articles the examiner must rationalize any negative determination against relevant clinical medical literature and the Veteran's representative's assertions as to the progression of his condition. 6. Following completion of the development directed in #1, #2, and #3, obtain an addendum opinion addressing the etiology of the Veteran's bilateral knee disabilities. Reexamination is left up to the discretion of the examiner. (a.) Request an opinion from an appropriate clinician as to the nature and etiology of the Veteran's right and left knee osteoarthritis. The clinician should indicate any left and right knee disability, to include arthritis, is at least as likely as not (at least a 50 percent probability) related to service, to include as due to the Veteran's reported in-service injuries, and reported overuse during service. (b.) The examiner must address the Veteran's January 2019 Appellate Brief, the assertions made therein, and the associated exhibits. As to exhibits the examiner must specifically address the relevance, if any, of the lay statements supporting continuity of symptomatology following in-service injury and the submitted internet articles discussion the procession of knee injuries and osteoarthritis. With specific regard to the relevance of the submitted internet articles the examiner must rationalize any negative determination against relevant clinical medical literature and the Veteran's representative's assertions as to the progression of his condition. 7. Following completion of the development directed in #1, #2, and #3, obtain a VA examination as to the nature and etiology of the Veteran's claimed carpal tunnel syndrome. Following consideration of the record, to include this Remand, and examination then: (a.) Identify/diagnose any wrist disorder that existed during the appeal period. (b.) State whether it clearly and unmistakably (undebatable) existed prior to the Veteran's service. (c.) If the examiner finds it did clearly and unmistakably preexist service, the examiner must address whether there was an increase in severity; and, if there was an increase, opine whether it was clearly and unmistakably not aggravated by service. (d.) For any wrist disorder not found to have preexisted active service, to include arthritis, the examiner must opine whether it is at least as likely as not (at least a 50 percent probability) related to service, to include as due to the Veteran's reported in-service wrist injury in 1988. (e.) The examiner must opine whether any diagnosed wrist disorders and/or carpal tunnel are at least as likely as not (1) proximately due to these service-connected status post healed boxer's fracture of right 5th metacarpal, disability; or (2) underwent any incremental increase in disability, regardless of its permanence, due to the service-connected finger disability? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. Note: a December 2013 VA examiner lists the Veteran's diagnosis of carpal tunnel and the need for trigger finger surgery under the medical history section associated with his service-connected post healed boxer's fracture of right 5th metacarpal, disability. Such suggests that the conditions might be relevant to one another. In addition, the Veteran states that his status post healed boxer's fracture of right 5th metacarpal impairs his ability to properly grip. The examiner must address whether this change in grip could cause or aggravate any diagnosed wrist disability to include carpal tunnel syndrome. 8. Following completion of the development directed in #1, #2, and #3, obtain an addendum opinion regarding the nature and etiology of the Veteran's pes planus. Reexamination is left up to the discretion of the examiner. Following consideration of the record, including this remand, the examiner. (a.) State whether pes planus clearly and unmistakably (undebatable) existed prior to the Veteran's service. (b.) If the examiner finds it did clearly and unmistakably preexist service, the examiner must address whether there was an increase in severity; and, if there was an increase, opine whether it was clearly and unmistakably not aggravated by service. (c.) If pes planus was not found to have preexisted active service, the examiner must opine whether it is at least as likely as not (at least a 50 percent probability) related to service, to include as due to the Veteran's reported in-service wrist injury in 1988. (d.) The clinician should consider and discuss the Veteran's in-service report of arch pain, despite arch support, in May 1982. The examiner must also address the Veteran suffering a December 1988 left foot injury following improperly jumping off a platform. Diagnosis was ligament stress. 9. Following completion of the development directed in #1, #2, and #3, obtain a VA examination as to the nature and etiology of the Veteran's claimed bilateral neuropathies. Following consideration of the record, to include this Remand, and examination the examiner must: (a.) Identify all diagnosed forms of neuropathy. (b.) Opine whether any neuropathy disability diagnosed during the period on appeal, is at least as likely as not (at least a 50 percent probability) related to service, to include as due to the Veteran's reported in-service injuries therein and reported overuse during service. (c.) If, positive opinions are obtained for the Veteran's knee, leg, or back disabilities, the examiner should opine whether any diagnosed neuropathies disorders are at least as likely as not (1) proximately due to these service-connected knee, leg or back disabilities; or (2) underwent any incremental increase in disability, regardless of its permanence, due to the service-connected knee, leg or back disabilities. The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. 10. Following completion of the development directed in #1, #2, and #3, schedule the Veteran for a VA examination with a qualified medical professional to provide an opinion as to the nature and etiology of any acquired psychiatric disorder. (a.) For each diagnosed psychiatric disorder, the examiner is asked to opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise etiologically related to the Veteran's military service. The examiner should specifically comment upon the Veteran undergoing mental status examination in conjunction with his in-service misconduct charge. (b.) If, positive opinions are obtained for the Veteran's knee, leg, or back disabilities, the examiner should opine whether any diagnosed neuropathies disorders are at least as likely as not (1) proximately due to these service-connected knee, leg or back disabilities; or (2) underwent any incremental increase in disability, regardless of its permanence, due to the service-connected knee, leg or back disabilities? The term "incremental increase in disability" means additional impairment of earning capacity. Objective measurement, or numerical quantification, is not required to ascertain an increase in disability. Moreover, any "incremental increase in disability" need not be permanent. (c.) The examiner must address the Veteran's January 2019 Appellate Brief, the assertions made therein, and the associated exhibits. As to exhibits the examiner must specifically address the relevance, if any, of the lay statements from the Veteran's spouse supporting depression related to his pain and physical impairments. (d.) Note: VA treatment records note a diagnosis of depression and contain the Veteran's reports of being "depressed" about his physical state and pain. (Continued on the next page) 11. Schedule the Veteran for an examination of the current severity of his right-hand status post healed boxer's fracture of right 5th metacarpal. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups and after repetitive use over time. The examiner should seek to elicit from the Veteran a detailed account of any symptoms and functional impairment due to the 5th metacarpal disability alone and discuss its effect on any occupational functioning and activities of daily living. The examiner should comment upon the Veteran's assertions as to function impairment. Note: the Veteran asserts he requires the complete use of his hand in order to grip assistive devices such as a canes and walkers to ambulate. He asserts his service-connected disability either greatly diminishes or precludes the ability to use such equipment and therefore impairs his mobility. The examiner should also question the Veteran about any effect this has had on his occupation (e.g. missed work, changed duties, etc). DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. L. Burroughs, 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.