Citation Nr: 21028893 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 15-27 655 DATE: MAY 12, 2021 ORDER Entitlement to an initial evaluation in excess of 50 percent for posttraumatic stress disorder (PTSD) with adjustment disorder, depressed mood and alcohol abuse is denied. Entitlement to a disability evaluation in excess of 10 percent for service-connected recurrent parotid hyperplasia with bilateral parotitis is denied. FINDINGS OF FACT 1. The severity, frequency, and duration of the Veteran's symptoms do not more closely approximate occupational and social impairment with deficiencies in most areas. 2. The Veteran's recurrent parotid hyperplasia with bilateral parotitis is not manifested with visible or palpable tissue loss and either gross distortion or assymetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial evaluation in excess of 50 percent for PTSD with adjustment disorder, depressed mood and alcohol abuse are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code (DC) 9411. 2. The criteria for entitlement to a disability evaluation in excess of 10 percent for service-connected recurrent parotid hyperplasia with bilateral parotitis are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.118, DC 7344-7800. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1978 to August 1985. This matter comes before the Board of Veterans' Appeal (Board) from a November 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In October 2018, the Veteran testified before the undersigned Veterans Law Judge at a Travel Board hearing. A transcript is of record. In July 2019, the Board remanded the issues on appeal for further development. There has been substantial compliance with remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). REFERRED The issue of entitlement to dental treatment related to service-connected recurrent parotid hyperplasia with bilateral parotitis is referred to the Agency of Original Jurisdiction (AOJ) for appropriate action. 38 C.F.R. §§ 3.381 (a); 17.161. See Mays v. Brown, 5 Vet. App. 302, 306 (1993). 38 C.F.R. § 4.150; 38 C.F.R. § 17.161. HIGHER RATINGS Disability ratings are determined by applying a schedule of reductions in earning capacity from specific injuries or a combination of injuries that is based upon the average impairment of earning capacities. 38 U.S.C. § 1155. Each disability must be viewed in relation to its entire history, with emphasis upon the limitations proportionate to the severity of the disabling condition. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is a question as to which of the two disability evaluations is applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence of record, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to an initial evaluation in excess of 50 percent for PTSD with adjustment disorder, depressed mood and alcohol abuse is denied. Historically, service connection for PTSD with adjustment disorder, depressed mood and alcohol abuse (PTSD) was granted in the November 2012 rating decision on appeal. A 50 percent evaluation was assigned under 38 C.F.R. § 4.130, DC 9411, effective May 25, 2011. The Veteran timely appealed the decision, seeking a 70 percent initial rating. During the pendency of the claim, the Veteran contested the effective date awarded for his service-connected PTSD in an August 2015 VA Form 9. An earlier effective date of December 17, 2003 was subsequently granted in the Board's July 2019 decision. As a result of this grant, the Board also remanded the issue of an initial evaluation for PTSD to the RO for consideration in the first instance. In a February 2020 rating decision, the RO's denied an initial evaluation in excess of 50 percent. The Veteran seeks a higher initial evaluation of his service-connected PTSD and asserts in his December 2012 notice of disagreement that his GAF score supports the higher evaluation. 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). The issue in this appeal is whether the Veteran's associated symptoms caused the level of impairment required for a disability rating of 70 percent or higher. The Board concludes that the Veteran's symptoms did not cause the level of impairment required for a disability rating of 70 percent or higher. The Veteran's symptoms more closely approximated the symptoms associated with a 50 percent rating, and resulted in a level of impairment that most closely approximated the level of impairment associated with a 50 percent rating. A 50 percent rating is assigned when symptoms such 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; or difficulty in establishing and maintaining effective work and social relationships cause occupational and social impairment with reduced reliability and productivity. A 70 percent rating is assigned when symptoms such as 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 cause occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood. A 100 percent rating is assigned for 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; or memory loss for names of close relatives, own occupation or own name. The U.S. Court of Appeals for the Federal Circuit (Federal Circuit) has emphasized that the list of symptoms under a given rating is a non-exhaustive list, as indicated by the words "such as" that precede each list of symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013). In Vazquez-Claudio, the Federal Circuit held that a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage or others of similar severity, frequency, and duration. Id. at 118. Other language in the decision indicates that the phrase "others of similar severity, frequency, and duration," can be thought of as symptoms of like kind to those listed in the regulation for a given disability rating. Id. at 116. The DSM-5 eliminated GAF scores, and GAF scores should not be considered in determining the appropriate rating in cases where the DSM-5 applies. Golden v. Shulkin, 29 Vet. App. 221, 225 (2018). As noted above, this appeal was certified to the Board in March 2018; thus, it was still pending before the AOJ on August 4, 2014, and the DSM- 5 criteria apply. Turning to the evidence, VA and private treatment records, the February 2018 VA examination, and the Veteran's lay statements show that the Veteran's PTSD was manifested by symptoms associated with a 50 percent rating (disturbances in motivation and mood, anxiety, depressed mood), and symptoms associated with a 70 percent rating (unprovoked irritability with periods of violence). He also had symptoms that are not listed with a specific rating, such as easy startling. The Board finds the severity, frequency, and duration of the Veteran's unlisted symptoms more closely approximate the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. See 38 C.F.R. § 4.126. Further, easy startling is similar to panic attacks, which are contemplated by the assigned 50 percent rating. The Board also finds the level of impairment caused by the Veteran's symptoms more closely approximates the level associated with a 50 percent rating. The Veteran experienced occupational and social impairment with reduced reliability and productivity. In October 2002 the Veteran was seen by VA for a mental health intake assessment, seeking help for what he "went through in the service." His recent stressors included interpersonal conflicts; occupational problems; inability to cope with physical or emotional discomfort; and family losses. He endorsed symptoms of depression, nightmares, and inability to sleep due to his in-service stressor. He denied any acute psychotic symptom, history of anxiety attacks, periods of mood swings, and active suicidal or homicidal ideations. On examination, the Veteran was alert and cooperative; neatly dressed and gave good eye contact. He had a good fund of knowledge; normal rhythm of speech and flow; no looseness of associations or flight of ideas noted. He was oriented to time, date, place, and person. The Veteran's immediate recall was intact and showed no recent or remote memory deficits. Attention and concentration span were intact and digit span testing was normal. The Veteran's thoughts were logical, goal oriented, coherent, and relevant. His insight and judgement were intact. The Veteran's diagnosis was depressive disorder, not otherwise specified. A July 2003 VA social work note reported that the Veteran lacked energy and motivation to do the necessary things to keep going. His affect was noted as full range. In October 2003 the Veteran underwent a VA PTSD evaluation. His symptoms included difficulty falling asleep and staying asleep and anger he reported that it was very common for him to "cuss people out" because he thought they were trying to "get one over" on him. He reported that his mind would go blank at times; he passed the exit to his house several times, ending up in another neighborhood; he was suspicious about everything, constantly thinking someone could be "trying to do him wrong again." On examination he appeared appropriately groomed with good eye contact. His speech was logical but not consistently goal-directed; insight and judgement were fair. Slight paranoia was demonstrated; no suicidal or homicidal ideation were reported. The Veteran's diagnoses were PTSD, chronic with impact on social and vocation function, and depression. The Veteran's VA PTSD group sessions generally reported that the Veteran was appropriate at all times and did not appear to have any cognitive, physical, or literacy barriers present or voiced during the sessions. An April 2004 treatment note indicates that the Veteran continued to experience intrusive thoughts and nightmares. On examination he was described as casually dressed. He had good eye contact, was interactive during the session and able to verbalize feelings. The rhythm and flow of his speech was normal; he had a good fund of knowledge. His attention and concentration span were fair, and no memory problems were noted. The Veteran's thoughts were logical, and goal directed; his mood was dysphoric with full range of affect. His insight and judgment were fair. He denied any active thoughts of suicide or homicide. At his November 2005 VA PTSD follow-up visit the Veteran denied lethal ideations and psychotic symptoms. He reported that his prescribed medication helped with his PTSD symptoms; he was sleeping well; and had a good appetite. Although he reported physical pain for other medical conditions, the Veteran stated that the pain did not exacerbate his depression. He shared that he had a girlfriend who he enjoyed spending time with, and recently went fishing one of his favorite hobbies. A January 2008 private treatment note for the Veteran's sleep disorder reported his PTSD as stable. At an August 2011 VA examination the Veteran reported symptoms such as difficulty falling asleep and remaining asleep; recurrent nightmares; intrusive flashbacks during waking hours; socially avoidant; irritability; anxiousness; anger; paranoia and suspiciousness; and easily startled. The Veteran endorsed symptoms of depression such as inadequacy, guilt, depressed mood, crying, fleeting suicidal thoughts, lack of interest in usual activities and diminished concentrating ability. On mental status examination, the examiner noted that the Veteran was polite and cooperative. The Veteran had well-maintained eye contact along with goal-directed speech and thought process. No psychomotor abnormalities were noted. The Veteran's memory function was good with no memory deficit elicited. The Veteran's mood and affect were angry then sad. The examiner indicated that the Veteran was not acutely suicidal, homicidal violent, psychotic, manic, hypomanic, obsessive or compulsive. His fund of knowledge was good as was his abstracting ability, insight and judgement. At the Veteran's VA examination conducted February 2018, the examiner characterized the Veteran's psychiatric disability as resulting in occupational and social impairment with reduced reliability and productivity. The examiner noted that the Veteran was in his second year of marriage with his second wife and that it was going well. The Veteran reported having a strained relationship with his daughter and a good relationship with his son. The Veteran reported having a distanced relationship with family and no friends or social life due to his difficulty with trusting others. The Veteran reported unemployment since 2000 due to physical problems related to having three heart attacks. The examiner endorsed the following symptoms: depressed mood; anxiety; chronic sleep impairment; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships; and impaired impulse control, such as unprovoked irritability with periods of violence. On observation the examiner noted the Veteran's appearance as well groomed; his speech rate and tone were normal; and his thoughts were goal directed. The Veteran's mood was euthymic as was his affect. He was fully alert and oriented with fair insight and judgment. There was no evidence of current lethal intent or plan, psychotic thinking, or clouded sensorium. After review of the evidentiary record, the Board finds that the Veteran's psychiatric disorder has been properly evaluated at the 50 percent level since the grant of service connection. The Veteran's symptoms have not more nearly approximated the criteria for a rating in excess of 50 percent at any time, and the evidence is not approximately evenly balanced. The Board finds the severity, frequency, and duration of the Veteran's symptoms more closely approximate to the symptoms contemplated by a 50 percent rating, which are less severe, less frequent, and shorter in duration than those contemplated by a 70 percent rating. His nightmares are more similar to chronic sleep impairment which is contemplated by a lower 30 percent rating. The Veteran's flashbacks and hypervigilance are similar to panic attacks more than once a week, which are contemplated by the assigned 50 percent rating. The evidence, by in large, also does not reflect a neglect of personal appearance and hygiene as indicated in the 70 percent criteria; VA treatment records show that the Veteran consistently appeared alert, well oriented, and well-groomed at his regular VA appointments. The level of impairment associated with a 70 percent rating includes an inability to establish or maintain effective work and social relationships. Consistent with his self-report of having difficulties interacting with others, the February 2018 VA examiner noted that the Veteran has difficulty establishing and maintaining effective work and social relationships, and reports he was fired three times from the same which he maintained for over a decade. Despite these difficulties, the cumulative evidence does not reflect an inability to establish and maintain effective work and social relationships. Rather the evidence indicates the Veteran's retirement was due to a physical disability. Furthermore, the evidence shows that the Veteran had a girlfriend and is currently married. These findings do not closely demonstrate an inability to establish or maintain effective social relationships. Indeed, the Veteran endorsed impaired impulse control or unprovoked irritability with periods of violence; however, based on a holistic view of the evidence, occurrence of these symptoms did not rise to the frequency or severity contemplated in a 70 percent rating. Additionally, while the August 2011 VA examination notes "fleeting" suicidal ideation, the Veteran overwhelmingly denied suicidal or homicidal ideations in treatment records. Moreover, any fleeting or infrequent suicidal ideation has not been demonstrated to have resulted in significant or severe impairment in terms of occupational or social functioning as is contemplated by a 70 percent rating. Bankhead v. Shulkin, 29 Vet. App. 10, 19 (2017). The Board acknowledges the Veteran's contention regarding his GAF score representing a higher evaluation; however, as noted earlier, the DSM 5 applies in this case. The Board is also cognizant that despite the February 2018 VA examiner's finding of a symptom listed in the 70 percent rating criteria, the examiner determined that it along with other symptoms resulted in a level of social and occupational impairment that was more akin to 'reduced reliability and productivity;' which is consistent with the 50 percent rating currently in effect. The Board finds this assessment highly persuasive as it was provided by a mental health professional with the clinical training and expertise suited to render an opinion about the severity of the Veteran's service-connected psychiatric disorder. In sum, the severity, frequency, and duration of the Veteran's symptoms do not result in the level of occupational and social impairment contemplated by a rating in excess of 50 percent. There is no doubt to be resolved; a higher rating is not warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § §§ 3.102, 4.3, 4.7; Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to a disability evaluation in excess of 10 percent for service-connected recurrent parotid hyperplasia with bilateral parotitis is denied. The Veteran seeks a higher rating for his recurrent parotid hyperplasia with bilateral parotitis (skin disability). The appeal period before the Board begins on May 25, 2010, one year prior to the date VA received the claim for an increased rating. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran's service-connected skin disability is rated under 38 C.F.R. § 4.118, DC 7800. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, the applicable DC in this case was not changed. Under DC 7800, a 10 percent rating is warranted for disfigurement of the face with one characteristic of disfigurement. A 30 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement. A 50 percent rating is warranted for visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement. An 80 percent rating is warranted for visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement. Id. Note (1) following DC 7800 identifies 8 characteristics of disfigurement, for the purposes of evaluation under § 4.118: (1) scar 5 or more inches (13 or more cm.) in length; (2) scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) scar adherent to underlying tissue; (5) skin hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). Id. For the reasons that follow, the Board finds that an evaluation in excess of 10 percent for the Veteran's skin disability is not warranted. Historically, the Veteran filed a service connection claim for sleep apnea as "secondary to hyperplasia of the parotid glands and neck disfigurement because (hyperplasia) swelling causes narrowing of the airway which causes sleep apnea." In developing this claim, the Veteran was afforded a VA examination in September 2011 for sleep apnea and neck disfigurement. While assessing the Veteran's condition, the VA examiner diagnosed the Veteran's neck disfigurement as partitas. The examiner's description noted subjectively, parotid enlargement. The objective factors were, no tenderness, swollen parotids. VA medical records and private treatment records do not contain any evidence apart from the findings of the VA examination report. Specifically, there is no competent medical treatment record identifying visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features, or; with two or three characteristics of disfigurement. The Board has also considered the application of other DCs, however no other DCs are applicable or would provide higher ratings for the Veteran's skin disability. Thus, a schedular rating in excess of 10 percent is not warranted for the Veteran's disability. Extraschedular Consideration The Board has also considered whether an extraschedular rating is warranted. At his October 2018 Board hearing, the Veteran indicated that he suffers from residual symptoms caused by his service-connected skin disability blurry vision and recurrent infections in the lower teeth. Referral for an extraschedular rating, requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule; meaning, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the Veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment and frequent hospitalization. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. In consideration of his hearing testimony, the Board remanded the appeal in July 2019, determine whether there indeed was a causal relationship between the Veteran's reported symptoms and his service-connected recurrent parotid hyperplasia with bilateral parotitis. The remand directives instructed that if these symptoms were found to be related to the service-connected disability, then the appeal was to be referred to VA's Director of Compensation Service for extraschedular consideration. Pursuant to the Board's July 2019 remand, the Veteran was afforded a VA eye examination in November 2019 and a VA oral and dental examination in December 2019. At the eye examination, the VA examiner diagnosed a left eye cataract and opined that it was unrelated to the Veteran's parotid hyperplasia and unrelated to his military service. The examiner reasoned that reduced uncorrected vision is due to refractive error and is fully correctable with standard spectacles. Regarding the Veteran's oral examination, the examiner reported there was no diagnosis, but the Veteran has severe periodontitis and bone loss proximately due to the parotid hyperplasia with bilateral parotitis disability. To the extent the Veteran raises his additional symptoms of blurry vision and lower teeth infection, only the dental condition is shown to be related to the service-connected disability. Dental and oral conditions are contemplated by the rating schedule. That is, VA compensation is available for certain types of dental and oral conditions. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. To warrant compensation for a dental disability the evidence must show that a trauma has caused a loss of substance of the body of the maxilla or mandible resulting in a loss of teeth, or that disease (such as osteomyelitis, but not periodontal disease) has caused a loss of substance of the body of the maxilla or mandible resulting in a loss of teeth. The competent evidence of record does not indicate that the Veteran's had any jaw problems or loss of teeth due to any dental trauma during service. To the extent, however, that the service-connected recurrent parotid hyperplasia with bilateral parotitis has resulted in symptoms of severe periodontitis and bone loss, this can be service-connected only to establish eligibility for outpatient dental care, not to receive disability compensation. 38 C.F.R. § 3.381 (a). The Board has referred this matter to the RO for appropriate consideration. Regarding the claimed blurriness, the competent medical evidence demonstrates that this symptom is not etiologically associated with the service-connected parotid hyperplasia with bilateral parotitis disability. The Veteran does not meet the first requirement as noted in Thun. The evidence demonstrates that the schedular rating criteria otherwise adequately contemplate the Veteran's disability picture from his parotid hyperplasia, which is manifested by dermatological symptoms. He also does not meet the second Thun requirement of an exceptional disability picture. Throughout the course of the appeal, there has been no competent evidence, or lay report from the Veteran demonstrating an exceptional disability picture. Indeed, the Veteran testified at his Board hearing that he suffers from lower teeth infections; however, they occur periodically, "three times a year." VA examination reports and medical treatment records do not reflect factors such as marked interference with employment or frequent hospitalization, due to his skin disability. Thus, a referral for extraschedular consideration is not warranted. The Board acknowledges that the RO did not follow-up with a January 2020 advisory opinion from the Director of Compensation Service regarding extraschedular consideration. However, the Board considers this a harmless error as the evidence shows the assigned schedular evaluation is adequate, and a referral for extraschedular consideration is not warranted. Lastly, the Board acknowledges the Veteran's contention that his service-connected parotid hyperplasia with bilateral parotitis has been misdiagnosed. At his Board hearing, the Veteran reports that he was told that he has sarcoidosis and his representative noted that parotid hyperplasia is one of the characteristics of sarcoidosis. However, a May 1985 service treatment record (STR) reports that the Veteran was negative for sarcoidosis. The STR further reported that a pulmonary function laboratory at Walter Reed Medical Center found "no evidence of sarcoidosis." Additionally, the Veteran's service connection claim for sarcoidosis was denied in a final, unappealed November 2014 rating decision. In conclusion, the preponderance of the evidence is against the Veteran's claim for an evaluation in excess of 10 percent for parotid hyperplasia with bilateral parotitis. Therefore, the claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. D. JOHNSON Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Telamour, Associate 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.