Citation Nr: 21029194 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 14-27 372 DATE: May 12, 2021 ORDER Entitlement to a rating in excess of 30 percent for left knee arthralgia, status post-operative is denied. Entitlement to an initial rating in excess of 10 percent for the right knee strain is denied. Entitlement to an initial compensable rating for left knee patella anesthesia is denied. FINDINGS OF FACT 1. The Veteran's left knee arthralgia, status post-operative did not manifest with tibia and fibula impairment, nonunion, with loose motion requiring a brace. 2. The Veteran's right knee strain is manifested by pain with flexion greater than 45 degrees. 3. The Veteran's left knee patella anesthesia results in numbness and mild loss of sensation and does not reflect severe to complete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 for left knee arthralgia, status post-operative are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.59, 4.71a, Diagnostic Code 5262; Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5262). 2. The criteria for an initial rating in excess of 10 percent for right knee strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.14, 4.20, 4.59, 4.71a, Diagnostic Codes 5299-5020. 3. The criteria for an initial compensable rating for left knee patella anesthesia have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.124, 4.124a, Diagnostic Code 8729. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from October 1981 to October 1985. These matters come before the Board of Veterans' Appeals (Board) from August 2010 and January 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded these issues to the RO in July 2020 for additional development. There has been substantial compliance with the remand instructions. Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141 (1999). INCREASED RATING Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1. VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). If there is a question as to which evaluation to apply to the Veteran's disability, 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. In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the Veteran undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Relevant Evidence Regarding Limitation of Motion in the Knees The Veteran attended a VA examination in July 2010. The Veteran reported left and right knee pain, stiffness, weakness, and giving way. He denied instability, incoordination, flare-ups, or locking. Range of motion testing revealed left knee flexion to 100 degrees with pain and extension to 0 degrees, and right knee flexion to 120 degrees with pain and extension to 0 degrees. There was no additional limitation of motion after three repetitive motion tests. There was no meniscal abnormality. He told the examiner that his knee disabilities interfered with his job, causing decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue decreased strength, and pain. He stated that he was unable to play sports and exercising was very difficult. In a September 2010 application for increased compensation based on unemployability, the Veteran stated that his back disability prevented him from securing or following any substantially gainful occupation. He did not list his knees. In the October 2010 notice of disagreement, the Veteran objected to the findings of July 2010 VA examination. He stated that protocol was not following during range of motion testing. During a November 2010 VA examination, the Veteran reported that his knee pain prevented him from performing full duties and climbing stairs. The Veteran submitted private treatment records from July 2011 which revealed bilateral knee flexion to 150 degrees and extension to zero degrees. He reported severe knee pain and functional limitation. The Veteran was observed walking with an antalgic gait and used a cane. December 2012 Social Security Administration (SSA) documents reveal that the Veteran's knee disabilities were not considered severe because they required little treatment and did not limit his ability to perform basic work-related activity. The Veteran attended another VA examination in May 2014. He reported a constant dull pain and knee flare-ups consisting of weakness. Range of motion testing revealed left knee flexion to 110 degrees and extension to 0 degrees. Pain was noted at 65 degrees flexion. Right knee flexion was to 125 degrees with pain noted at 80 degrees. His right knee extension was to 0 degrees. The Veteran's left knee flexion was reduced to 100 degrees and his right knee flexion was reduced to 100 degrees following repetitive use testing. The examiner determined that the Veteran's left and right knee disabilities caused less movement than normal, weakened movement, and pain on movement. She determined that the Veteran would have additional loss of motion during flare-ups but did not provide an estimate. Stability testing was all normal and the Veteran did not have shin splints. Diagnostic testing did not reveal any evidence of arthritis. The examiner stated that the Veteran's knee disabilities would prevent him from kneeling or crouching, as well as prevent him from standing or sitting for long periods of time. June 2014 VA treatment records reflect that the Veteran's knees moved normally without any evidence of ligamentous laxity or pathologic signs. He was observed walking with a normal gait. The treating physician remarked that he believed the Veteran was "more uncomfortable than disabled," and that he was able to work. On his July 2014 VA Form-9, the Veteran objected to the findings of the May 2014 VA examination because he believed his knee disabilities caused instability. June 2018 VA treatment records reflect that the Veteran reported knee pain and requested knee braces. Examination revealed that his strength and range of motion were within full limits. The Veteran attended another VA examination in April 2019. He reported flare-ups of pain which limited his functional ability. The Veteran told the examiner that he was unable to stand for more than five minutes. Range of motion testing revealed left knee flexion to 110 degrees and extension to 0 degrees with pain. His right knee range of motion testing was all normal and no pain was noted. There was no additional loss of motion following repetitive use testing. The Veteran was examined immediately after repetitive use over time and although pain, fatigue, and weakness were noted, left knee flexion was to 110 degrees and extension was to 0 degrees, and right knee flexion was to 130 degrees and extension was to 0 degrees. The examiner estimated that during a flare-up the Veteran's left knee flexion would be limited to 90 degrees and extension to 0 degrees, and his right knee flexion would be limited to 115 degrees and extension to 0 degrees. The Veteran had full muscle strength in his knees and there was no ankylosis. There was no evidence of instability following testing and no history of recurrent subluxation or lateral instability. The Veteran had never had patellar dislocation or shin splints. There was no evidence of pain with passive range of motion testing. There was no indication of more movement than normal due to flail joints, fracture, or nonunion. The Veteran submitted private diagnostic testing dated May 2019 which revealed "Grade 2-3 patellar chondromalacia, a small suprapatellar joint effusion, and minimal prepatellar subcutaneous edema." In May 2019 correspondence, the Veteran reiterated that it was his belief that his knee disability evaluations were too low. He reported knee buckling that occurred weekly. He also stated that the examiner was able to move the Veteran's lower legs side to side and front to back without moving his upper leg. February 2020 VA treatment records reflect that the Veteran reported unexpected giving way and falling from his knees but no complaints of pain or locking. Examination revealed full range of motion in the knees with specific examination of the knees revealing no evidence of ligamentous laxity, effusion, or abnormal patellofemoral mechanics. X-rays revealed good cartilage space. The treating physician stated that because the Veteran's physical examination was normal, his ligaments were all intact, he had normal range of motion, and no significant radiographic findings, there was no need for knee braces. Upon VA examination in October 2020, the Veteran reported that he regularly iced his knee and took Motrin for inflammation. He reported flare-ups of severe pain bilaterally, lasting one to three days. He told the examiner that he wasn't able to walk with a normal gait and was unable to stand or sit for long periods of time. Range of motion testing revealed right knee flexion to 110 degrees with pain and extension to 0 degrees. Left knee flexion was to 90 degrees with pain and extension was to 0 degrees. Following repetitive use testing there was no additional loss of motion. The examiner did not observe the Veteran following repeated use over time or during a flare up, but estimated that there would not be additional loss of motion during those instances for either knee. The examiner noted that pain, fatigue and lack of endurance were factors causing functional loss in both knees. The Veteran had normal muscle strength in both knees and there was no evidence of ankylosis. There was no history of recurrent subluxation or lateral instability. Joint stability testing was performed and there was no evidence of any instability in either knee. There was no indication of more movement than normal due to flail joints or fracture nonunion. 1. Entitlement to a rating in excess of 30 percent for left knee arthralgia, status post-operative The Veteran contends that he is entitled to an increased rating for his left knee arthralgia, status post-operative (herein referred to as left knee arthralgia). The Veteran's left knee arthralgia is rated as 30 percent disabling under 38 C.F.R. § 4.71a, Diagnostic Code 5299-5262. The Veteran's left knee arthralgia is rated under hyphenated Diagnostic Codes 5299-5262. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5299 provides the rating criteria for general musculoskeletal disabilities, and Diagnostic Code 5262 pertains to a disability associated with tibia and fibula impairment. Prior to the regulatory change, under Diagnostic Code 5262, tibia and fibula, impairment of the knee and leg a 40 percent rating is warranted for nonunion of the tibia and fibula, with loose motion and requiring a brace. 38 C.F.R. § 4.71a, Diagnostic Code 5262. The Board notes that the Veteran's 30 percent rating under Diagnostic Code 5262 has been in effect since June 11, 1996. Thus, since this rating has been in effect for greater than 20 years and it is protected. Effective February 7, 2021, DC 5262 provides that impairment of the tibia and fibula will be assigned a 40 percent rating where there is nonunion with loose motion, requiring brace. Malunion of the tibia and fibula will be evaluated under Diagnostic Codes 5256, 5257, 5260, or 5261 for the knee. The revised criteria also provide for ratings where there is malunion of the tibia and fibula with medial tibial stress syndrome (MTSS) or shin splints. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5262). Diagnostic Code 5256 provides ratings for ankylosis of the knee. Diagnostic Code 5257 provides ratings for recurrent subluxation or lateral instability. Prior to February 7, 2021, recurrent subluxation or lateral instability warranted a 10 percent rating if it was "slight," 20 percent rating if it was "moderate," and 30 percent rating if it was "severe." 38 C.F.R. § 4.71a. Under Diagnostic Code 5260, limitation of flexion to 60 degrees warrants a noncompensable rating; limitation of flexion to 45 degrees warrants a 10 percent rating; limitation of flexion to 30 degrees warrants a 20 percent rating and limitation of flexion to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5260 (2019). Under Diagnostic Code 5261, limitation of extension limited to 5 degrees warrants a noncompensable rating; limitation of extension limited to 10 degrees warrants a 10 percent rating; limitation of extension limited to 15 degrees warrants a 20 percent rating; limitation of extension limited to 20 degrees warrants a 30 percent rating; limitation of extension limited to 30 degrees warrants a 40 percent rating and limitation of extension limited to 45 degrees warrants a 50 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5261 (2019). The Board has considered the evidence of record and finds that the Veteran's symptomatology more closely approximates the criteria for a 30 percent rating. There is no showing in the record of nonunion of the knee joint, as required for a maximum 40 percent rating. There is also no evidence in the record that the Veteran has any laxity of his knee, nor excessive range of motion, indicating loose motion, as required for a 40 percent rating. Id. The Board recognizes that the Veteran uses a brace, but finds it highly probative that a VA physician determined it was not medically necessary following a normal physical examination, evidence of intact ligaments, normal range of motion, and no significant radiographic findings. See February 2020 VA treatment records. Furthermore, stability testing during the July 2010, November 2010, May 2014, May 2019, and October 2020 were normal. The objective evidence is more probative and more credible than non-specific lay statements because several different examiners over ten years determined that no instability was present following testing As such, the Board finds that the Veteran's left knee symptoms more closely approximate a 30 percent disability rating. The Board has considered alternative diagnostic codes, and there is no alternative code by which to award the Veteran a higher disability rating. The Veteran does not demonstrate ankylosis of the knee. See Diagnostic Code 5256. The Veteran's knee demonstrates full extension and was estimated to have 65 degrees of flexion, at worst, before experiencing pain, which does not more nearly approximate a 40 percent rating under Diagnostic Codes 5260 or 5261. There is no evidence of knee instability and no indication that the Veteran has a meniscal disability. See Diagnostic Codes 5257, 5258, and 5259. The Board has also considered whether the revised criteria might entitle the Veteran to a rating in excess of 30 percent beginning February 7, 2021. The revised criteria provide for a 40 percent rating for nonunion of the tibia and fibula with loose motion requiring brace, which, as discussed above, has not been shown. Alternatively, malunion of the tibia and fibula may be evaluated under the diagnostic codes for the knee or ankle, which ever results in the highest evaluation. 38 C.F.R. § 4.71a, Diagnostic Code 5262 (effective February 7, 2021). However, as explained above, a rating higher than 30 percent is not available under the corresponding rating criteria. The Board has considered the statements submitted by the Veteran in support of the claims. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain and stiffness. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to determine how specific reported symptoms are assigned to the appropriate diagnostic codes. The determination of the associated symptomology requires an expertise that the Veteran has not shown he possesses. Determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the nature and extent of the Veteran's left knee arthralgia have been provided by the medical personnel who examined him during the current appeal and who made pertinent clinical findings in conjunction with the examination. The medical findings, as provided in the examination report, directly address the criteria under which his disabilities are rated. The Board finds that evidence is the most persuasive and outweighs the Veteran's statements in support of his claims. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 30 percent for his left knee arthralgia. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to an initial rating in excess of 10 percent for the right knee strain The Veteran's right knee strain has been rated as 10 percent disabling for the entire appeal period pursuant to Diagnostic Code 5299-5020, which provides that synovitis is rated based upon limitation of motion of the affected parts, as degenerative arthritis. 38 C.F.R. § 4.71a, DC 5020 (2019). Diagnostic Codes 5260 and 5261 are unchanged by the revised rating criteria. As discussed above, in order to warrant a higher rating under Diagnostic Code 5260, the evidence will need to show that the Veteran's right knee flexion is limited to 30 degrees or less. A rating under Diagnostic Code 5261 is not warranted, as the evidence reflects that the Veteran has had normal right knee extension throughout the appeal period. After consideration of the record, the Board finds a higher rating is not warranted based on limitation of motion. The reported pain on motion and functional impairment of motion are already contemplated in the rating assigned, and the record consistently reveals motion from at least 0 to 110 degrees at the very worst and during a flare-up. In most cases, the VA treatment records do not reveal significantly limited range of motion. In sum, the Board finds the Veteran's range of motion does not approximate the limitation of flexion to 30 degrees needed for a higher rating, even after consideration of repeated use over time and during flare-ups. The Board has considered whether a higher rating is warranted based on limitation of motion. In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Additional diagnostic codes have been considered, but the evidence does not reflect, and the Veteran does not allege, that he has tibia or fibula impairment, genu recurvatum, a compensable limitation of extension or ankylosis. 38 C.F.R. § 4.71a, Diagnostic Codes 5256-5263. As explained in more detail above, although the Veteran reports instability, there is no probative objective evidence to support his contentions. Multiple VA examiners and VA physicians did not find any indication of joint instability. The Board has considered the statements submitted by the Veteran in support of the claims. Layno v. Brown, 6 Vet. App. 465 (1994). However, as discussed above, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. Competent evidence concerning the nature and extent of the Veteran's right knee disability have been provided by the medical personnel who examined him during the current appeal and who made pertinent clinical findings in conjunction with the examination. The medical findings, as provided in the examination report, directly address the criteria under which his disabilities are rated. The Board finds that evidence is the most persuasive and outweighs the Veteran's statements in support of his claims. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for his right knee disability. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to an initial compensable rating for left knee patella anesthesia The Veteran seeks a compensable rating for his left knee patella anesthesia. The Veteran's left knee patella anesthesia is rated under Diagnostic Code 8729 pertinent to neuralgia of the external cutaneous nerve of the thigh. 38 C.F.R. § 4.124a, Diagnostic Code 8729. Under Diagnostic Code 8729, a noncompensable rating is warranted where neuralgia of the external cutaneous nerve of the thigh results in mild to moderate paralysis. A 10 percent rating is warranted where such disability results in severe to complete paralysis. 38 C.F.R. § 4.124a. Further, the relevant regulations provide that neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The Veteran attended a VA examination in August 1996. He reported left knee problems stemming from his in service arthroscopy, but did not report any numbness or neuralgia. Upon VA examination in April 1997 he did not report any numbness or neuralgia. The Veteran testified at a hearing at the RO in February 1998 that he had lost feeling in his kneecap following the left knee in-service arthroscopy. Upon examination in September 2001, the Veteran reported some numbness of his knee medial to the scar. In January 2010 correspondence, the Veteran stated that he had nerve damage and numbness in his left knee. During a July 2010 VA examination, the Veteran reported numbness in his left kneecap and that he was unable to "feel objects falling on it." Examination revealed decreased vibration, normal pinprick, normal position sense. Light touch was absent. There was no paralysis, no neuritis and no neuralgia. The examiner determined that the Veteran's left knee nerve issue would not impact his ability to work. On his October 2010 notice of disagreement, the Veteran argued that his left knee nerve condition warranted a higher rating because he had a complete loss of feeling in that area. July 2011 private treatment records reveal that the Veteran underwent a sensory examination and light touch and pinprick were intact in his lower extremities. There was no mention of nerve pain or numbness in the left knee. The Veteran underwent a sensory examination during a VA examination in May 2014. His thighs, knees, and lower legs were all normal to light touch testing. January 2019 VA treatment records reveal that the Veteran's strength and sensation were grossly intact. The Veteran reported loss of sensation on the top of his left patella during an April 2019 VA examination. In May 2019 correspondence, the Veteran argued that he was entitled to a compensable rating for his left knee nerve condition because he had total numbness in that area. Following an examination and review of the claims file, a November 2020 VA examiner determined that the Veteran had mild loss of sensation of skin over the left patella. VA treatment records reflect that the Veteran reported numbness and received neurological treatment for his wrists. It does not appear that he has ever received treatment for his left knee nerve condition. The evidence of record does not reveal that the Veteran's left knee patella anesthesia causes severe to complete paralysis. Accordingly, a compensable rating is not warranted. The Board has considered the statements submitted by the Veteran. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain and numbness. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. The identification of neuralgia and the determination of the associated symptomology requires an expertise that the Veteran has not shown he possesses. Determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the nature and extent of the Veteran's left knee patella anesthesia and the residuals for such a disability have been provided by the medical personnel who examined him during the current appeal and who made pertinent clinical findings in conjunction with the examination. The medical findings, as provided in the examination report, directly address the criteria under which his disabilities are rated. The Board finds that evidence is the most persuasive and outweighs the Veteran's statements in support of his claims. As the Veteran's decreased sensation of the left knee has consistently been described as resulting in no more than mild numbness or decreased sensation, the Board finds that such results in no more than mild or moderate paralysis of the external cutaneous nerve of the thigh. Therefore, the Board finds that a compensable rating for the Veteran's decreased sensation of the left knee is not warranted. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Fitzgerald, 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.