Citation Nr: 21029328 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 10-34 239 DATE: May 13, 2021 ORDER Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. FINDINGS OF FACT 1. The preponderance of evidence is against finding that the Veteran's bilateral hearing loss had its onset during service, manifested to a compensable degree within the year following discharge, or is related to service. 2. Tinnitus was not shown during service or for many years thereafter, and the preponderance of the evidence is against finding that the current tinnitus was incurred in or caused by service. CONCLUSIONS OF LAW 1. The criteria to establish service connection for bilateral hearing loss have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.385 (2020). 2. The criteria to establish service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1112, 1131, 1137, 5107 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1974 to January 1984. This matter comes before the Board of Veterans' Appeals (Board) from an October 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A March 2014 Board decision reopened the claims for service connection for bilateral hearing loss and tinnitus, and remanded the matters for further evidentiary development. In May 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In October 2019, the Board denied entitlement to service connection for bilateral hearing loss and tinnitus. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claim (Court). In an August 2020 Joint Motion for Remand (Joint Motion), the parties requested that the Court vacate the October 2019 Board decision and remand the appeal to the Board for further action consistent with the Joint Motion. The Court granted the Joint motion in August 2020. In January 2021, the Board remanded the matters for further development. The Board notes that in the January 2021 remand the Board pointed out an inaccuracy in the Joint Motion to ensure that readjudication on remand was not impacted. Specifically, the Board noted that in the August 2020 Joint Motion, the parties inaccurately recharacterized both the March 2014 Board remand and the VA examiner's opinion in 2018. In this regard, the parties changed the wording in a quote of the Board 2014 remand to read, "based in part on the fact that [Appellant] had no hearing loss [until] six months after separation [from service]." See Joint Motion, p. 2. Likewise, the parties recharacterized the 2018 VA examiner's opinion as, "The 2018 VA opinion provided a negative nexus opinion based in part on the fact that Appellant's audiograms showed normal hearing until an audiogram conducted several months after separation from service." Id. The Board noted that the parties' addition of the word "until" into both sentences changes the meaning to suggest hearing loss was shown on examination six/several months after separation. As neither the 2014 remand nor the 2018 VA examiner's opinion used that term or implied that hearing loss was shown on the 1984 VA audiology examination, the Board found the parties' insertion of the word "until" into both sentences in the Joint Motion to be inappropriate. See McBurney v. Shinseki, 23 Vet. App. 136, 140 (2009). Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). Moreover, where a veteran served continuously for 90 days or more during active service and hearing loss or tinnitus becomes manifest to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. For the purposes of applying the law administered by VA, impaired hearing is considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz (specified frequencies) is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a 'disability' at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). 1. Service connection for bilateral hearing loss The Veteran asserts, in essence, that his bilateral hearing loss was caused by acoustic exposure while performing his service duties as an aircraft maintenance officer while working in close proximity to naval aircraft and engine noise, including on and near the flight deck of aircraft carriers. See May 2017 Board hearing transcript and February 2009, February 2010, August 2010, January 2011, September 2015, November 2017 and April 2021 statements. He also asserted that he wore hearing protection during service, described as plug-in foam inserts, and does not recall being near aircraft that were running without hearing protection; that he first noticed a loss in hearing in 1983 before he was discharged from service and reported it at the time of separation but was told that his hearing was normal; that the condition worsened over time; that he did not work on the flight deck while stationed onboard the carrier USS Independence, but worked closely with the squadron aircraft as a maintenance control officer and was close to aviation noise 10 to 12 hours per day while wearing hearing protection; and that while stationed onshore in Texas, he was deployed to the USS Lexington to perform carrier qualifications about five times per year for approximately three years for five days each time, during which he went onto the flight deck and was close enough to the jets that he could feel the jet exhaust. See May 2017 Board hearing transcript, September 2008 VA examination report and August 2010, February 2015, September 2016 and August 2017 statements. He additionally testified in May 2017 that he began wearing hearing aids in approximately 2014 and has not been told by a medical provider that his hearing loss is related to in-service noise exposure. During the October 2008 VA examination, the Veteran additionally denied post-service recreational noise exposure but reported occupational exposure about once per month for brief periods, during which he wore hearing protection. The record indicates that in-service noise exposure has been conceded. See January 2018 Board decision. The medical evidence shows the Veteran is diagnosed with bilateral hearing loss. See October 2008 VA examination report and April 2015 VA treatment record. Thus, the question becomes whether the Veteran's bilateral hearing loss was incurred in or is related to service. The Board acknowledges the Veteran's statements asserting that his hearing loss is related to in-service noise exposure, including that his hearing loss began during service before his January 1984 discharge; that he reported it at the time of his service discharge but was told his hearing was normal; and that his hearing loss worsened since service and has been continuous since service. The Veteran is competent to report sensory symptoms and his testimony in that regard is entitled to some probative weight. However, the Board finds these assertions are not consistent with the medical evidence and are not persuasive. See Madden v. Gober, 125 F.3d at 1481 (Board entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); see also Caluza v. Brown, 7 Vet. App. 498, 511 (1995) (finding that in weighing credibility, VA may consider inconsistent statements, internal inconsistency, and consistency with other evidence of record). Specifically, the Veteran's service treatment records do not contain any complaints, treatment or diagnosis pertaining to hearing loss. Audiograms performed in December 1977 and August 1979 show the Veteran's hearing was within normal limits bilaterally, and he denied hearing loss and ear trouble in the accompanying December 1977 and September 1979 reports of medical history. While an audiological evaluation was not performed at the time of his December 1983 separation examination, examination of the ears was normal, and the Veteran denied hearing loss or ear trouble and reported being in excellent health on his December 1983 discharge report of medical history. While complaints or findings related to left and/or right blocked ears, left otitis media, sinusitis, allergies and upper respiratory infection are noted in service records, including those in September 1977, January 1979, March 1979, February 1983 and April 1983, none document complaints or findings relating to hearing loss. Moreover, service treatment records show the Veteran frequently sought treatment for a range of conditions throughout his military service, including for symptoms relating to sinusitis, allergies, motion sickness, thumb, skin, ankle, wrist/hand, foot, elbow and stomach, which suggests that the Veteran raised concerns when he was not feeling well. It is likely that Veteran would have sought treatment for hearing problems during service had such been occurring and that any such complaints would have been documented in the service treatment records, including on his December 1983 discharge report of medical history. See AZ v. Shinseki, 731 F.3d 1303 (Fed. Cir. 2013) (recognizing the widely held view that the absence of an entry in a record may be considered evidence that the fact did not occur if it appears that the fact would have been recorded if present). The Veteran's contention that he reported hearing loss prior to his discharge are thus not persuasive. Further, the Veteran's hearing was within normal limits five months after discharge, as shown on a June 1984 VA audiological examination. While the examination report does show the Veteran reported a history of sensorineural hearing loss during the examination, audiometric findings revealed normal hearing bilaterally, no history of infections or otic pathology and fundi was normal. The examiner stated the reported hearing loss was sensorineural in etiology in the past, but no objective evidence of hearing loss was shown. Moreover, the Board notes that this statement was made in conjunction with his 1984 claim for service connection for hearing loss. See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence) Following service and prior to the filing of the Veteran's October 2007 claim for service connection, the medical evidence shows the Veteran denied hearing loss during VA treatment in December 2001, December 2003, June 2005, February 2006, June 2006, January 2007 and private treatment in December 2006. He also denied hearing loss during the pendency of the appeal during VA treatment in October 2007, May 2010, November 2010, May 2012 and July 2013. An exception is a December 2009 VA treatment record indicating the Veteran reported he was hard of hearing. The Board finds the evidence contemporaneous to service to be significantly more persuasive and probative than statements the Veteran made to VA for purposes of seeking compensation. Id.; see also Buchanan v. Nicholson, 451 F.3d 1331, 1336-1337 (2006) (the lack of contemporaneous medical records, the significant time delay between the affiants' observations and the date on which the statements were written, and conflicting statements of the veteran are factors that the Board can consider and weigh against a veteran's lay evidence). As the competent evidence of record does not establish a bilateral hearing loss disability during service or within the year following service, competent evidence linking the bilateral hearing loss to service is needed to establish service connection. On this question, the preponderance of evidence is against the claim. An October 2018 VA examiner opined that the claimed bilateral hearing loss was less likely than not incurred in or caused by in-service noise exposure. The examiner reasoned that the Veteran's hearing was within normal limits at the time of his entrance into service and during in-service audiological evaluations performed through August 1979 and there was no evidence of hearing loss in the service treatment records. He explained that, while an audiogram was not performed at the time of the Veteran's separation from service, an audiogram performed in June 1984 five months after his separation revealed normal hearing bilaterally. Thus, he concluded that the objective evidence does not support a nexus between the Veteran's current hearing loss and acoustic exposure during service. In support, he cited a 2006 Institute of Medicine study, which indicated there was insufficient scientific basis to conclude that permanent hearing loss attributable to noise exposure will develop long after noise exposure and the most pronounced effects of a given noise exposure on pure-tone thresholds are measurable immediately following exposure. Addressing the Veteran's assertions that he noticed and reported hearing loss at the time of separation and that his hearing loss had worsened since that time, the examiner concluded that the Veteran's assertions that he noticed and reported hearing loss in service is inconsistent with the objective evidence of record and the medical literature, as hearing loss is diagnosed by objective testing, such as audiograms in this case, and the audiograms in the record reveal that the Veteran's hearing was within normal limits during service and five months after separation. Addressing service treatment records in September 1977, March 1979, February 1983 and April 1983 that note treatment for ear problems, such as blocked ears, otitis media and allergies, the examiner opined that the current hearing loss was not related to the complaints and issues documented in these records, reasoning that these service treatment records noted middle ear pathology secondary to otitis media, allergies and upper respiratory infection and did not reference or document any hearing loss in service. He explained that hearing loss from otitis media, allergies and upper respiratory infection is typically temporary while the disease is present, and there was no objective evidence of hearing loss in service or of continuity of symptoms or residuals of hearing loss or middle ear pathology, as the Veteran's VA audiometric records revealed normal tympanograms indicating that his middle ear system function was within normal limits and showed sensorineural hearing loss, rather than conductive hearing loss, which is the type of hearing loss typically caused by middle ear pathology. In February 2021, the same examiner who provided the October 2018 VA opinion, opined that the Veteran's bilateral hearing loss was less likely than not incurred in or caused by service. He reasoned that all of the Veteran's military audiograms revealed his hearing was within normal limits, including those in November 1973, July 1975 and December 1977, and that his hearing was within normal limits on a June 1984 VA examination, five months after his separation. Addressing whether threshold shifts, if any, during service were significant, he opined that the only evidence of a threshold shift on the in-service audiograms showed an improvement, not a decrease, at the 500 Hertz frequency in the left ear on his July 1975 and December 1977 audiograms compared to the November 1973 baseline audiogram; that noise injury is evidenced by a significant decrease in thresholds, not an improvement; and that the 500 Hertz frequency is not a noise-susceptible frequency; thus, the two audiograms revealed normal hearing with improvement at the 500 Hertz frequency that is not a noise-susceptive frequency and is not indicative of the onset of hearing loss or of noise injury. Citing medical literature, he stated that the Institute of Medicine study indicates that there is insufficient scientific basis to conclude that permanent hearing loss directly attributable to noise exposure will develop long after noise exposure and the most pronounced effects of a given noise exposure on pure tone thresholds are measurable immediately following the exposure. He concluded that, as there is objective evidence that there was no onset of hearing loss or of any significant decrease in hearing during service and there is objective evidence that his hearing was still within normal limits 5 months after separation, there is no objective evidence of noise injury during service or within the year after service discharge. Thus, he opined that without evidence of an objectively verifiable noise injury in service or within a year of separation from service, there is no medical basis upon which to conclude that the Veteran's hearing loss began during service or is related to service, to include military noise exposure. The post-service VA and private treatment records show treatment for hearing loss beginning in 2014 and issuance of hearing aids in September 2015; however, the treatment records do not suggest an association between or otherwise link the Veteran's hearing loss to service. See May 2014 and August 2015 VA treatment records and undated private audiograms submitted by the Veteran in August 2017. The Board finds the combined VA opinions probative and persuasive and thus entitled to significant weight, as the opinions were based on a review of the record and relevant facts, the Veteran's medical and occupational history and are supported by an articulated rationale for the conclusions reached that is consistent with the evidence. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Taken together, the opinions establish that the Veteran's bilateral hearing loss did not begin during service or within the year following discharge; is not related to ear problems during service; has not been continuous since service; and is less likely than not related to noise exposure during service. The examiners reasoned that the Veteran's service treatment records show the Veteran's hearing was normal during service and in the year following service; that audiological evaluations showed his left ear hearing had improved, rather than decreased, during service; and that there is no objective evidence of hearing loss until three decades after service. The October 2018 examiner further opined that the Veteran's hearing loss was not related to treatment during service for ear problems and there was no objective evidence of hearing loss in service or of continuity of symptoms or residuals of hearing loss or middle ear pathology. Further, the October 2018 and February 2021 VA examiner reasoned that medical literature indicates there is insufficient scientific basis to conclude that permanent hearing loss attributable to noise exposure will develop long after noise exposure and the objective evidence in this case did not show an onset of hearing loss or of any significant decrease in hearing during service. There is no opinion in the record to the contrary. The Board acknowledges that the Joint Motion found the Board needed to address the adequacy of the October 2018 VA opinion. The Joint Motion noted that the 2014 remand found the 2008 VA opinion was inadequate because it was based on the fact that the Veteran had no hearing loss six months after separation. As the October 2018 VA opinion also considered the absence of hearing loss in the audiogram conducted six months after service, the Joint Motion sought discussion of the adequacy of the 2018 VA opinion. In the March 2014 remand, the Board found the 2008 VA examination inadequate because the opinion was based in part on the fact that the Veteran had no hearing loss six months after separation, but that the absence of in-service evidence of hearing loss, including one meeting the requirements of 38 C.F.R. § 3.385, is not always fatal to a service connection claim. That remand also noted the negative medical opinion failed to consider or address the Veteran's report that he noticed and reported hearing loss at separation and that it had grown worse since that time. Review of the 2008 opinion reveals a rationale for the negative nexus opinion that the Veteran's hearing acuity was completely normal on the VA audiological testing done approximately 6 months after separation and therefore the hearing loss was a post service occurrence. No further explanation was provided by the examiner. Conversely, the 2018 VA examination explained why the normal hearing at the time of the 1984 VA audiogram was significant in determining whether current hearing loss was related to service, to include citing to medical literature pertaining to whether there is delayed onset of hearing loss due to noise exposure. The 2018 VA examination provided significantly more detailed rationale than the 2008 opinion and did not rely solely on the fact that hearing loss did not arise in service. It was not erroneous for the 2008 examiner to consider normal audiometric findings in service and shortly following service in the 1984 audiogram; rather, providing a negative nexus opinion based on the absence of hearing loss arising during service, without further explanation, was the reason the 2008 opinion was inadequate. As the 2018 VA examiner explained why the current hearing loss was not related to service, to include why it was not a delayed residual of noise exposure in service, the opinion is adequate. Regardless, the 2018 opinion combined with the 2021 VA opinion is highly probative, for the reasons set forth above. While the Veteran believes his bilateral hearing loss was incurred during service or is otherwise related to service, as a lay person, he has not been shown to have the specialized training sufficient to render such an opinion, as the diagnosis and etiology of hearing loss are matters not capable of lay observation and require medical expertise to determine. Therefore, the opinion of the Veteran as to the onset or etiology of his current hearing loss is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d at 1376-77 (Fed. Cir. 2007) (noting lay person's general competence to testify as to symptoms but not to medical diagnosis). The Board finds the medical evidence to be significantly more probative and persuasive than the lay assertions. In sum, the preponderance of competent and probative evidence is against finding that the Veteran's bilateral hearing loss had its onset during service, was manifested to a compensable degree in the year following service, or is otherwise related to service, and the claim for service connection for bilateral hearing loss is denied. 2. Service connection for tinnitus The Veteran asserts, in essence, that his current tinnitus is related to noise exposure during service. The Veteran has not asserted that he experienced tinnitus during service or continuous ringing in his ears since service. In fact, the Veteran testified in May 2017 that he did not recall a ringing sensation or crackling in his ear during service and had experienced tinnitus for the past 12 years. The Board accepts that the Veteran currently experiences tinnitus, as he is competent to report the presence of ringing and has done so credibly in this instance. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Thus, the question becomes whether his tinnitus is related to service. After reviewing the record, the Board finds that the preponderance of evidence is against the claim for service connection for tinnitus. The Veteran's service treatment records are silent for any complaints or findings pertaining to tinnitus. The first evidence in the record of complaints or findings pertaining to tinnitus is in 2008, which is three decades after discharge from service. Specifically, in a June 2008 statement, the Veteran reported a slight rushing in his ears at times and during an October 2008 VA audiological examination, he reported that he experienced tinnitus this year and the condition had worsened. The medical evidence prior to 2008 shows the Veteran consistently denied symptoms of tinnitus during medical treatment. See December 2001, December 2003, June 2005, June 2006, January 2007, October 2007 VA treatment and December 2006 private treatment. He also denied tinnitus during medical treatment after he filed his 2008 claim for service connection for tinnitus, including in May 2010, November 2010, May 2012 and July 2013. The Veteran complained of a history of tinnitus during VA treatment in August 2015, described as intermittent, high-pitched, non-pulsating ring, bilaterally for "several years." During the October 2008 VA examination, the Veteran reported recurrent tinnitus of an indeterminate location that had existed for "many years" and that his symptoms occur once or twice per month, last 15 to 30 seconds and do not interfere with activities of daily living. The examiner opined that the Veteran's tinnitus was less likely than not related to service, reasoning that the Veteran's description of tinnitus was not consistent with tinnitus symptoms due to noise exposure. An April 2014 VA examiner opined that the Veteran's tinnitus was less likely than not related to in-service noise exposure. She reasoned that the in-service audiologic evaluations showed normal hearing and the Veteran did not report tinnitus during service or during a June 1984 VA examination performed 5 months after discharge which showed the Veteran's hearing was normal at that time. In support, she cited medical literature indicating that only seldom does noise cause a permanent tinnitus without causing hearing loss and hearing loss was not shown in this case. She concluded that the tinnitus was more likely due to civilian noise exposure, presbycusis or other etiology. An October 2018 VA examiner opined that the Veteran's tinnitus was less likely than not related to service or in-service noise exposure. He reasoned that the Veteran's service treatment records, including the in-service audiograms performed through August 1979 and the June 1984 audiogram performed five months after discharge were silent for tinnitus. In support, he cited medical literature indicating that noise seldom causes permanent tinnitus without also causing hearing loss and in this case the service treatment records are silent for complaints of or treatment for tinnitus and there is no objective evidence of onset of hearing loss in service or complaint of tinnitus on the June 1984 examination and no objective evidence of noise injury during service or 5 months after separation. Addressing the January 1979 service treatment record that noted a popping sensation in the left ear and observation of bilateral fluid and tympanic membrane that looked red and irritated, the examiner opined that the popping sensation was not tinnitus, as defined, as tinnitus is not a sensation but, rather, a perfection of sound with no external sound sources, and tinnitus from noise exposure is most typically accompanied by hearing loss; that the popping sensation is not indicative of the onset of tinnitus during service; and that any tinnitus the Veteran may currently be experiencing is unrelated to the popping sensation noted in the service treatment records. He explained that the popping sensation appeared to be associated with acute middle ear pathology, and there was no objective evidence of continuity of symptoms or residuals of middle ear pathology. He noted that the Veteran's VA audiology examinations revealed normal tympanograms, indicative of normal middle ear system function, with no evidence of conductive hearing loss, and there were no complaints of a popping sensation in the VA treatment records. The Board finds the October 2018 VA opinion the most probative and entitled to significant weight. See Nieves-Rodriguez, 22 Vet. App. at 302-04. The opinion was rendered following review of the claims file, including in-service and post-service medical evidence, and after obtaining a medical history and description of symptoms from the Veteran. Additionally, the examiner provided a reasoned explanation that is consistent with the evidence and supported by medical research, which he applied to the Veteran's specific circumstances. The examiner reasoned that the record does not show complaints of tinnitus during service or for decades thereafter; that the objective evidence shows the Veteran's hearing was normal during service and five months after service and noise exposure seldom causes permanent tinnitus without also causing hearing loss, which was not shown in this case; and that the Veteran's reported popping sensation during service was not indicative of the onset of tinnitus or related to the current tinnitus and was associated with acute middle ear pathology which was not shown to be continuous since service. There is no medical opinion to the contrary. The Board acknowledges that during a February 2011 VA examination to address service connection for sinusitis, the Veteran reported a medical history of recurrent tinnitus, noted as stable, with the onset in 1982 during service. However, the Board finds this report of tinnitus is inconsistent with the other evidence of record, including his hearing testimony noting only a 12 year history of tinnitus, his denial of tinnitus numerous times during VA treatment from 2003 to 2017, and his report in August 2015 that it existed for "several years". The Board finds his statements during treatment and under oath during his Board hearing to be more probative than the statement made during the February 2011 sinus examination. See Buchanan v. Nicholson, 451 F.3d at 1337 (the Board can consider conflicting statements of the veteran in weighing credibility). Although the Veteran believes his tinnitus is related to acoustic exposure during service, as a lay person, he has not been shown to have the specialized training sufficient to render such an opinion. See Jandreau, 492 F.3d at 1376-77. While the Veteran is competent to report symptoms of tinnitus, the etiology of tinnitus which began many years after his in-service noise exposure requires medical expertise to determine. Thus, the opinion of the Veteran regarding the etiology of his current tinnitus is not competent medical evidence. The Board finds the VA examiner's October 2018 opinion to be significantly more probative than the lay assertions. As there is no competent evidence in the record linking the Veteran's tinnitus to service, service connection for tinnitus must be denied. In reaching these decisions, the Board has considered the benefit of the doubt doctrine; however, as the preponderance of the evidence is against the claims, the doctrine does not apply. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. C. Birder 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.