Citation Nr: 21028307 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 15-00 332A DATE: May 10, 2021 ORDER From December 8, 2009, an initial 70 percent rating for posttraumatic stress disorder (PTSD) with depressive disorder and alcohol abuse is granted. As of February 1, 2020, a total disability rating due to individual unemployability (TDIU) as a result of service-connected psychiatric disabilities is granted. REMANDED Entitlement to higher initial ratings for service-connected right knee disability, including (but not limited to) based on limitation of motion and instability, is remanded. Entitlement to higher initial ratings for service-connected left knee disability, including (but not limited to) based on limitation of motion and instability, is remanded. FINDINGS OF FACT 1. From December 8, 2009, resolving reasonable doubt in favor of the Veteran, the severity, frequency, and duration of symptoms more closely approximate occupational and social impairment with deficiencies in most areas. 2. As of February 1, 2020, the evidence is evenly balanced for and against a finding that he is unable to secure and follow substantially gainful employment due to his service-connected psychiatric disabilities. CONCLUSIONS OF LAW 1. From December 8, 2009, the criteria for a 70 percent disability rating, and no higher, for PTSD with persistent depressive disorder and alcohol abuse have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 2. As of February 1, 2020, the criteria to establish entitlement to a TDIU rating are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from January 1989 to September 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO) in June 1992, March 2011, September 2011, and March 2013. The Board has taken jurisdiction over the claims seeking higher initial ratings for the Veteran's right and left knee disabilities as explained in the prior April 2019 remand. The Board also notes that the claim seeking a higher rating for his service-connected PTSD was received by VA on August 1, 2012. This was within the one-year period following the grant of service connection and assignment of the initial 30 percent rating for PTSD of which the Veteran was notified on September 1, 2011, and thus within the period allowed to appeal the initial rating. Based on the circumstances of this case, the Board will consider this appeal to stem from the initial rating of PTSD and thus date from December 2009 when service connection benefits for the Veteran's PTSD became effective. In June 2018, the Veteran testified at a hearing before the undersigned, and a transcript of the Veteran's testimony has been considered as part of the evidence in this appeal. This appeal was last before the Board in April 2019, at which time additional evidentiary development was requested to comply with due process requirements. Regarding the present appeals seeking a higher rating for the service-connected psychiatric disabilities and a TDIU rating, the evidentiary record has been adequately developed in substantial compliance with all prior Board remand instructions and has now been returned to the Board for further appellate review. Regarding the claims seeking higher initial ratings for the right and left knee disabilities, although the Board sincerely regrets the further delay, an additional remand is necessary to ensure that there is a complete and accurate record upon which to decide the Veteran's claims so that every possible consideration is afforded. Increased Disability 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 percentage ratings are based on the average impairment of earning capacity resulting from service-connected disability; separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. All potentially applicable rating criteria and regulations must be considered. If two disability evaluations are potentially applicable, 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 reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. In this case, the Veteran seeks a higher initial rating for his service-connected PTSD with depression and alcohol abuse, currently rated as 30 percent disabling from December 8, 2009 to August 5, 2015, and 70 percent disabling thereafter. As explained below, the Board finds that the evidence is essentially equally balanced for and against a finding that an initial 70 percent rating is warranted from December 8, 2009, the date that service connection was established. The Board acknowledges that over the course of this appeal, various mental health professionals have reported the severity, frequency, and duration of the Veteran's symptoms with significant variation, even when those findings are in close proximity of time. However, different examiners, at different times, will not describe the same disability in the same language. Features of the disability may be overlooked or a change for the better or worse may not be accurately appreciated or described. It is the responsibility of the VA reviewer to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the assigned rating may accurately reflect the elements of disability present. Here, the Board presents its best effort in ensuring that the assigned disability rating is most appropriate to the overall disability picture presented by the Veteran's service-connected psychiatric symptoms. 1. From December 8, 2009, a 70 percent initial rating for PTSD with persistent depressive disorder and alcohol abuse is granted. Legal Criteria Under the General Formula for Mental Disorders (General Formula), the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017); 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). A 70 percent rating is assigned when occupational and social impairment with deficiencies in most areas (such as work, school, family relations, judgment, thinking, or mood) cause symptoms such as, for example, suicidal ideation; obsessional rituals which interfere with routine activities; intermittently illogical, obscure, or irrelevant speech; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); or inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to symptoms such as, for example: 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; or memory loss for names of close relatives, own occupation or own name. Factual Background Immediately preceding the claim seeking service connection in this case, a November 2009 private psychiatric assessment identified nightmares increasing to 4 to 5 times per week with auditory hallucinations of hearing whispers at night. The Veteran reported experiencing a decreased appetite, increased use of alcohol to medicate his anxiety and depression symptoms, irritability, getting into arguments, and isolating himself. He reported having 3 children who he saw "sometimes." He denied suicidal and homicidal thoughts. At the time of this assessment, the Veteran was appropriately dressed and groomed, had good eye contact, was calm and cooperative with coherent speech, average/fair impulse control, organized thought process, and fair insight. The examiner did identify sad mood, blunted affect, and thought content positive for mood disturbance, anxiety, hallucinations, and paranoia. There was mild impairment of concentration and attention, and impaired short-term memory although long term memory remained intact. The Veteran's judgment was impaired. At a July 2011 VA examination, the Veteran described current symptoms of hypervigilance, anger, irritation, startling easily, social isolation, feeling like a failure, not trusting anyone, and being always "on guard" and feeling suspicious of others. He reported sleep impairment and a history of being argumentative and having a history of occasional violent outbursts. The examiner found that overall the Veteran's symptoms were most consistent with the criteria for a 30 percent rating based on occupational and social impairment with occasional decrease in work efficiency, but also endorsed a current difficulty in establishing and maintaining effective work/school/social relationships due to mistrust. A December 2012 disability benefits questionnaire (DBQ) completed by a private mental health treatment provider stated that the Veteran had prolonged depressed mood, neglected his personal care, had panic attacks 5 times per week, nightmares and sleep impairment and ultimately had total occupational and social impairment due to his mental diagnoses. This examiner endorsed symptoms of greater severity than is reflected in other treatment findings and examination reports to include disorientation to time or place, an intermittent inability to perform activities of daily living, including maintenance of minimal personal hygiene, persistent danger of hurting self or others, spatial disorientation, memory loss for names of close relatives own occupation, or own name, and gross impairment of thought processes or communication. This severity of symptoms, which would equate to a total or 100 percent rating, is not supported by the remainder of the record which generally reflects that the Veteran was appropriately oriented and groomed at multiple visits, denied suicidal or homicidal thoughts such as to be a persistent danger to himself or others, did not have grossly inappropriate behavior or grossly impaired thought processes or communication. Although he is shown to have some short-term memory loss, it was described as mild in nature and not of the severity reflected by this document. Similarly, although the Veteran mentioned hearing whispers at night which have been interpreted as auditory hallucinations, they are not shown to be persistent and were not generally reported as an ongoing symptom in subsequent treatment and examination notes. A February 2013 PTSD examination by VA presents a starkly contrasting picture of the Veteran's disability from that presented by the nearly contemporaneous DBQ from the private provider. The VA examination noted the Veteran's PTSD to be in full remission, alcohol abuse to be in remission, and an adjustment disorder with depressed mood to be the only active psychiatric diagnosis, leaving the Veteran "feeling like a loser, numb toward life, and feeling depressed." VA examination, February 2013. This examiner identified the Veteran's level of occupational and social impairment as being due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or having symptoms controlled by medication. The only symptoms identified by this examiner as applicable to the Veteran's diagnoses were depressed mood and chronic sleep impairment. This is particularly notable as this examination occurred mere weeks after the starkly contrasting findings were reported by the private provider. The VA examiner noted that any withdrawal from social engagement and dysphoria are attributed to the Veteran's lack of employment and financial resources, as he reported a fairly stable and gainful work history until recently where he interacted in the community and among people routinely as part of his job functioning. The Board is therefore required to reconcile these two contemporaneous but disparate reports regarding the severity of the Veteran's symptoms. Subsequent treatment notes from the Veteran's private provider, however, also reflect significantly less severe symptoms. Residual mental health symptoms due to PTSD/anxiety are described as "some mild symptoms" or "some difficulty" in social, occupational, or school functioning but "generally functioning pretty well" and having some meaningful interpersonal relationships. Private treatment, September 2014. A December 2014 biopsychosocial assessment by the same treatment provider noted the Veteran had inappropriate appearance, but did not describe what the deficiency may have been, and identified flat affect, depressed mood, feeling of worthlessness, and impaired recent memory, but otherwise found appropriate speech, full orientation, good judgment, unimpaired remote memory/recall, normal perceptions, coherent thought process, no hallucinations or delusions, improved anger, but increasing difficulties with concentration and memory. Subsequent VA examinations, private and VA treatment notes, and an additional June 2018 DBQ completed by a private provider are consistent with assignment of a 70 percent rating based upon occupational and social impairment with deficiencies in most areas. They reflect significant problems and a decrease in employment, but do not show the Veteran to be totally occupationally and socially impaired. Analysis The Board concludes that, considering the entirety of the record, the Veteran's service-connected psychiatric symptoms more nearly approximate the criteria for an initial 70 percent rating consistent with occupational and social impairment with deficiencies in most areas throughout the period on appeal. The Veteran's reports and the symptoms described in VA and private treatment records reflect troubles in interactions in work, family relations, judgment, thinking and mood which supports the assignment of a 70 percent rating. The remaining question for the Board is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 100 percent, but the Board finds that the evidence, taken as a whole, does not warrant a 100 percent rating. In other words, while the February 2013 DBQ noted symptoms contemplated by a 100 percent rating, the treatment provider did not provide examples but merely checked boxes in a list, and the severity of the symptoms described are not otherwise supported by evidence from both before and after the DBQ in question. The February 2013 DBQ must be viewed as an outlier in terms of the severity described, and as such has less probative value than other reports which show greater consistency over time. The February 2013 report is inconsistent with the other descriptions provided by VA and private examiners/treatment providers, and the evidence overall does not demonstrate the level of impairment associated with a 100 percent rating. VA and private treatment records, VA examinations, and the Veteran's lay statements show that the Veteran's PTSD with depression and alcohol abuse was manifested by symptoms associated with a 70 percent rating (e.g., near-continuous depression affecting the ability to function independently, appropriately and effectively, impaired impulse control, and difficulty in adapting to stressful circumstances). He also had symptoms that are not listed with a specific rating, such as poor appetite, nightmares, and easy startling. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms and other associated symptoms more closely approximate the symptoms contemplated by a 70 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 100 percent rating. See 38 C.F.R. § 4.126. The described unlisted symptoms are similar to difficulty in adapting to stressful circumstances, chronic sleep impairment, and panic attacks occurring more than once a week, which are contemplated by the assigned 70 percent or lower ratings. The Veteran's other remaining symptoms are also either contemplated by, or more consistent with, a 70 percent rating. Further, the Veteran is not shown to have total occupational and social impairment. Indeed, as will be discussed below, the Veteran was employed at least part-time through much of the appeals period, and an October 2019 annual performance evaluation noted the Veteran was a paraprofessional in a behavioral consultant company and exceeded occupational expectations in a number of areas despite experiencing some decreased productivity due to his health concerns. As such, the Veteran was not totally occupationally impaired as of the October 2019 performance evaluation, and had maintained employment with the same employer from 2014 to 2020. In short, the preponderance of the evidence weighs against finding that the severity, frequency, and duration of the Veteran's symptoms resulted in the level of impairment required for a 100 percent rating. The criteria for a 100 percent or higher rating are not met. Instead, the Board has resolved reasonable doubt in favor of the Veteran and finds that the disability picture more nearly approximates the criteria required for a 70 percent rating. As a result, an initial 70 percent rating is warranted throughout the period on appeal; to that extent, the appeal seeking a higher disability rating is granted. 2. As of February 1, 2020, a TDIU rating is granted. Legal Criteria A total rating based on individual unemployability (TDIU) may be granted where a Veteran is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16; see also 38 C.F.R. §§ 3.340(a), 3.341(a). If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). Here, based on the grant of a higher rating for his service-connected psychiatric disability above, the Veteran now meets the minimum threshold requirements for TDIU from December 9, 2009. However, the evidence does not reflect that he was unable to secure or follow a substantially gainful occupation until February 1, 2020. In determining whether the Veteran is entitled to TDIU, neither his non-service-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. § 3.341(a). In the Veteran's April 2020 Application for Increased Compensation Based on Unemployability, the Veteran self-reported that he first became too disabled to work on February 15, 2020. February 1, 2020 is listed as the day he ceased working as a paraprofessional health care provider with a behavioral consultant employer. The Veteran reports this as the date that he last worked full-time, but other documents indicate that this was part-time employment at least for part of the time he worked for this employer. VA regulations establish that marginal employment is not to be considered substantially gainful employment, and marginal employment is generally considered to be when a Veteran's earned annual income does not exceed the poverty threshold for one person as established by the Bureau of the Census. In this instance, the annual income reported by the Veteran for his final year of employment, i.e. from February 2019 to February 2020, falls below this threshold and is therefore considered to be marginal employment based on the reported earned annual income. Of note, however, the Veteran reports annual income well above the poverty threshold in 2017, which is also reported to have been part-time employment with the same employer. Although the final year of employment from 2019 to 2020 may have been marginal employment only, this does not establish that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Instead, the record shows that although the Veteran had significant limitations resulting from various health conditions, including his service-connected psychiatric disabilities, this generally resulted in a decrease in productivity, not an inability to follow the occupation for which he had significant training, education, and experience. The Board now turns to that question, considering other factors in determining whether the Veteran could obtain and maintain substantially gainful employment. The phrase "unable to secure and follow a substantially gainful occupation" has both an economic and a noneconomic component. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). VA must consider the Veteran's individual history, education, skill, and training, and whether they have the mental ability to perform the activities required by the occupation at issue. Id. Factors that may be relevant include, but are not limited to, the limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. VA must discuss relevant factors that are raised by the evidence but need not run through a checklist of each factors in every case. Id. at 62. Analysis For the following reasons, the Board finds that from February 1, 2020, the evidence is evenly balanced for and against the claim (a legal term known as a state of "equipoise") that the Veteran's service-connected psychiatric disabilities preclude him from securing and following a substantially gainful occupation. The Board will first address the period on appeal before February 2020. As early as November 2011, a private psychiatrist noted that the Veteran was not employable "at this time" due to recurring symptoms of his PTSD. See, e.g., Correspondence from private provider, October 2012 & November 2011. This is contradicted by contemporaneous VA treatment notations that identify the Veteran's history of PTSD and depression but find no difficulty in concentration or mood changes at this time. A contemporaneous primary care follow-up visit notes instead that the Veteran reported "doing well" except for chronic back and knee pain, and did not report any psychiatric symptoms consistent with unemployability. VA treatment, October 2011. As above, the Board must attempt to reconcile disparate and contradictory medical evidence in this appeal. The Veteran asserts that he was not able to sustain employment due to flashbacks, nightmares, and increasing panic attacks. Board hearing transcript, June 2018. At the time, he was working part-time in what he described as a position as a life coach and mentor working with youth. He reports working in this field for over 19 years, and the evidence shows that he remained with the same employer from April 2014 to February 2020. See, e.g., Application for Increased Compensation Based on Unemployability, April 2020; Veteran's statement, July 2018. The Veteran holds a high school diploma and an associate's degree in criminal justice with a lengthy history of working as a paraprofessional in group home settings. At his hearing in 2018, the Veteran testified that he had nightmares due to his PTSD "sometimes" and that this, along with his non-service-connected sleep apnea, impaired his sleep causing him to sometimes fall asleep at work and causing a problem with other staff members. The Board may not consider any impairment presented by non-service-connected disabilities. The Board also notes that the Veteran reported his highest earning year in this position in 2017, the year prior to the hearing, earning well beyond the minimum threshold for marginal employment. The Veteran was engaged in substantially gainful employment at the time. Additionally, the record contains an annual performance evaluation from October 2019 that states the Veteran exceeded his employer's expectations in 4 of the evaluation areas and is listed as needing improvement in 9 of the evaluation areas. The comment area of this report notes that the Veteran has experienced a decline in productivity in hours since July 2019 and that he needed to be able to take time off to go to all of his scheduled doctor appointments. Neither the employee comments nor the employer comments on this annual evaluation indicate that the Veteran was considered unable to complete or follow his occupational tasks. In other words, the need to improve or having decreased productivity is not the equivalent of being unable to follow a substantially gainful occupation. Other documentation submitted in April 2020 and signed by the Veteran's last employer again states there was a "productivity decrease" and that the Veteran's underlying health conditions, including PTSD, prevented him from working. The statement elaborates that the Veteran's hours were reduced to 25 hours per week due to his health conditions which limited his ability to see clients daily and that his productivity decreased from November 1, 2019 to February 1, 2020. This statement generally indicates decreased productivity and limitations at work, which are contemplated by the assigned 70 percent rating for his psychiatric symptoms alone. It does not show that the Veteran was unable to follow the occupation. The disability rating in itself is a recognition of significant impairment including difficulties at work. The Veteran also provided a conflicting occupational history at his July 2019 VA examination to determine the severity of his PTSD symptoms. On this occasion, the Veteran reported that he was not working and not looking for work currently. This is contradicted by later statements, including verification from his employer, that he was employed, albeit part-time from 25-35 hours per week at times, for the same company from April 2014 to February 2020. The Veteran did report volunteer work with at-risk youth at his church, but did not report the ongoing employment shown by other evidence. The July 2019 examiner ultimately opined that the Veteran would "struggle" in occupational settings that required concentration, accuracy, attention to detail and alertness and that he would "have challenges" working where he would be required to successfully and diplomatically interact with other employees, staff, and/or the general public. VA opinion, July 2019. Again, while this does reflect significant occupational impairment due to his service-connected disabilities, that level of severity is contemplated by the assigned disability rating and does not equate to being unable to secure or follow a substantially gainful occupation. In all, neither the Veteran's statements, the VA medical evidence, nor the statements from the Veteran's latest employer show that he was unable to follow or complete his occupational duties, only that his ability to do so was impaired and he experienced a decrease in productivity. Some of the private opinion evidence shows that the Veteran was believed to be unemployable due to his service-connected psychiatric disabilities at times, but is otherwise contradicted by evidence from the same provider and subsequent evidence of success on the job. This is a difficult case, particularly given the factual conflicts and differences of opinion in the record, however, the Board finds that from February 1, 2020, the ending date of the Veteran's employment with the behavioral consultancy company, and when the Veteran himself reports that he became too disabled to work later in February 2020, the evidence is essentially at an equal balance for and against the finding that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected psychiatric disabilities. As a result, the Board will resolve that reasonable doubt in the Veteran's favor and find that a TDIU rating is warranted from February 1, 2020. The appeal is granted. REASONS FOR REMAND 1. Entitlement to higher initial ratings for service-connected right knee disability, including (but not limited to) based on limitation of motion and instability, is remanded. 2. Entitlement to higher initial ratings for service-connected left knee disability, including (but not limited to) based on limitation of motion and instability, is remanded. While the record contains multiple VA examinations regarding the severity of the Veteran's knee disabilities, the most recent August 2019 examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26 (2017) regarding the additional functional limitations experienced during a flare up, nor does it comply with the instructions presented in the Board's prior remand. See Stegall v. West, 11 Vet. App. 268 (1998) (holding a remand order by the Board imposes a duty to ensure substantial compliance with the terms of that remand). The August 2019 examiner found that pain significantly limited the knee joints' functional ability with repeated use over a period of time and with flare ups. She further indicated that she was able to describe this additional limitiaton in terms of range of motion. However, she then reported the same ranges of motion for the right knee in both examination report sections (with repeated use, and with flare us) as she had listed in the initial range of motion measurements shown on examination. In other words, the estimated degrees of flexion and extension of the right knee joint reported by the examiner as showning no additional limitaiton, do not match her findings regarding additional limititations of motion on repetitive use or during a flare up. An addendum opinion is necessary to clarify this discrepancy. The matters are REMANDED for the following action: Obtain an addendum opinion regarding the estimated range of motion of the knees after repetitive use over time, and during a flare up. A new in-person examination of the Veteran is not required unless the examiner determines this to be necessary. Further, if in the examiner's opinion, additional information is required from the Veteran regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss experienced during flare-ups and on repetitive use over a period of time, this information may be obtained from telephone, telehealth, or other appropriate means of communication as determined by the examiner. The examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups and repetitive use over time based on the other evidence of record and the Veteran's statements. Please note that the prior August 2019 examination found that pain would result in additional limitations on repetitive use over time and during flare ups, but then presented the same estimated range of motion measurements as observed during the examination. The addendum opinion must clarify that discrepancy. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDonald, 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.