Citation Nr: 21029858 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 17-33 325 DATE: May 17, 2021 ORDER Entitlement to a rating in excess of 70 percent for posttraumatic stress disorder (PTSD) is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted for the entire period on appeal. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's PTSD symptoms manifested as social and occupational impairment with deficiencies in most areas; and did not more closely approximate total occupational and social impairment. 2. Affording the Veteran the benefit of the doubt, throughout the entire period on appeal the overlapping symptoms of his service-connected PTSD and alcohol abuse disorders prevented him from finding and maintaining gainful employment commensurate with his work and educational history. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 70 percent for service-connected PTSD have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.130, Diagnostic Code (DC) 9411. 2. For the period on appeal, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from July 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2015 rating decision issued by a regional office (hereinafter agency of original jurisdiction or AOJ) of the Department of Veterans Affairs (VA). The Veteran testified at a February 2020 travel Board hearing before the undersigned Veterans Law Judge, a transcript of which has been attached to the record. At the hearing, the Board advanced this case on the docket pursuant to 38 U.S.C. § 7107(b)(3). 38 C.F.R. § 20.900(c). The Board previously remanded this decision to the AOJ for further development in May 2020. Increased Rating The Veteran asserts entitlement to a rating for his PTSD in excess of 70 percent, the rating for the entire period on appeal. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. §1155; 38 C.F.R. §4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. The Veteran's PTSD is rated under 38 C.F.R. § 4.130, DC 9411. All psychiatric disabilities are evaluated under a general rating formula for mental disorders. Evaluation under § 4.130 is symptom-driven, meaning that symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating under that regulation. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). In Vazquez-Claudio, the United States Court of Appeals for the Federal Circuit explained that the frequency, severity and duration of the symptoms also play an important role in determining the rating. Id. at 117. Significantly, however, the list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). If the evidence shows that the Veteran suffers symptoms listed in the rating criteria or symptoms of similar severity, frequency, and duration, that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the criteria for a particular rating, the appropriate equivalent rating will be assigned. Mauerhan, 16 Vet. App. at 443. PTSD evaluated at 70 percent disabling requires the following manifestations: occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals that interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; 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 work-like setting); and/or the inability to establish and maintain effective relationships. 38 C.F.R. § 4.130, DC 9411. A 100 percent rating is assigned for mental conditions manifesting with 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 or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. 1. Entitlement to a rating in excess of 70 percent for PTSD Factual Background The Veteran was afforded a March 2014 VA psychological examination, in which the examiner failed to note his alcohol abuse disorder, despite the fact that a 2013 VA examiner described it and PTSD as "comorbid disorders." The examiner opined that the Veteran exhibited occupational and social impairment with reduced reliability and productivity due to symptoms of depressed mood, difficulty in establishing and maintaining effective relationships, suicidal ideation without intent, and impaired impulse control. The examiner described the Veteran's intellect as average and noted his 32-year employment history as a police officer and security guard as well as his 43-year marriage, opining that his PTSD did not preclude gainful employment. In his April 2015 claim for an increased rating, the Veteran stated he was unable to work due to PTSD, diabetes mellitus and back symptoms. According to VA treatment records, the Veteran and his wife participated in an April 2015 initial consultation with a social worker. The Veteran's wife reported sleeping in separate rooms due to the Veteran's sometimes violent nightmares and complained that he drank "on some days." She admitted that she, their only daughter and their granddaughter "fuss" at him, which the Veteran indicated caused him to drink more which in turn resulted in darker moods. The Veteran and his wife met with a VA staff psychologist in April 2016. He was described as pleasant, cooperative, with euthymic mood and flat affect, although his thought process was vague, using the past and present tense interchangeably and confusing timelines and details. He also demonstrated difficulty assessing his own symptoms, endorsing high levels of symptomatology with an inability to provide details or examples. He denied any recurrent hallucinations, suicidal or homicidal ideation, and described his relationship with his wife, daughter and granddaughter as "good" and "close." The examiner noted mild cognitive impairment, severe depressive symptoms, minimal anxiety symptoms and alcohol use disorder. Later in April 2016, the Veteran met with a different staff psychologist, and endorsed depressive symptoms (lack of interest in enjoyable activities, depressed mood), PTSD symptoms (intrusive trauma related memories, thoughts and dreams, avoidance of trauma reminders), and sleep difficulties. The Veteran endorsed self-isolation but denied angry outbursts or an effect on his relationships, describing his familial relations as "good." He claimed to have been abstinent from alcohol for two weeks, stating he no longer "drinks to get drunk." The Veteran described mild auditory hallucinations, hearing his name called but turning around to find no one there. He presented as alert, oriented, appropriate in appearance, logical, coherent, and denied homicidal and suicidal ideations with adequate insight and normal affect. May 2016 VA treatment records indicate the Veteran described his mood as "fair," stating "I like to be alone, I do talk to a few associates," but reporting significant social situations cause him dysfunction. He denied significant depressive or anxious symptoms but reported continuing intrusive thoughts, flashbacks, hypervigilance and hyperarousal, albeit without significant dysfunction. He described sleeping "too much," and endorsed a good relationship with his wife and family, although he reported drinking "socially." The Veteran presented with appropriate appearance, mildly flat affect, normal speech and thought processes with fair insight and judgment. He denied homicidal or suicidal ideation as well as hallucinations. In June 2016 VA treatment, the Veteran arrived 20 minutes late because he overslept. He endorsed passive thoughts about death and thinking life would be easier without him, although he denied thoughts about suicide and stated he would never harm himself. He presented as fully oriented, appropriate in appearance and affect, with logical and coherent thoughts and speech as well as adequate insight. The Veteran reported feeling less irritable and depressed now that he was finding ways to stay busy, and indicated he was making efforts to approach rather than avoid anxiety producing situations like crowds. In September 2016 correspondence, the Veteran stated his PTSD leaves him "unable to concentrate and perform [his] daily functions." January 2017 VA treatment records note the Veteran described his mood as "better," was appropriate in appearance with a brighter affect, organized thought process, normal speech with no homicidal or suicidal ideations or hallucinations. He stated he was feeling better due to new medications and reported he did not cry as easily while enjoying the holidays with his family. He also reported cutting down on his drinking. His VA clinician's impression was of PTSD, alcohol abuse disorder and insomnia. In June 2017 correspondence, the Veteran reported he was unable to maintain even a part time job due to "grossly inappropriate behavior" and an inability to get six to eight hours of sleep per night. June 2018 VA treatment records indicate the Veteran reported "feeling okay," and stated that while his drinking had decreased, he recently felt "really frustrated" over the weekend and returned to drinking heavily. He described his anger and frustration as "up and down" and claimed his wife had a gambling addiction. The Veteran presented as appropriate in appearance and fully oriented, with a euthymic mood, congruent affect, linear thought process, and intact memory with good insight, judgment, and concentration. He denied hallucinations or suicidal and homicidal ideations. In July 2018 the Veteran was taken to the emergency room by his family for suicidal ideation and recurring nightmares as well as recurring auditory hallucinations. His wife reported finding him at home with a gun before intervening and transporting him to the hospital. The Veteran denied previous suicide attempts but admitted to possessing suicidal ideation related to his depression. He presented as oriented and denied alcohol or drug abuse, reporting he had been sober for four years. In an August 2018 followup, the Veteran admitted to drinking heavily and "hearing a voice" before his wife found him outside after shooting twice into a tree. He stated that he was not taken to the hospital that day, but voluntarily went later. He reported his mood had been worsening for the past few months, and that while he stayed sober for two weeks after the hospital admission he had begun drinking again. During the appointment he denied any suicidal ideation, intent or plan, stating that he was scared to leave his family. The Veteran denied any audio or visual hallucinations since his hospitalization but reported sleeping poorly due to financial worries. The examiner categorized the Veteran's suicide risk as moderate, recommending additional outpatient followup. In September 2019, the Veteran reported continuing to drink alcohol every other day but stated "I don't crave it." He indicated his mood was stabilizing but reported continued irritation at home, requiring him to go on walks to "cool down." The Veteran described his overall condition as improving and denied thoughts of death or suicide. The treating VA clinician strongly recommended residential treatment, noting the Veteran did not possess the skills to get sober. January 2019 VA treatment records indicate the Veteran reported past suicidal ideation with intent but stated he never had a complete plan and went to the hospital in 2018 voluntarily. He described drinking "a few shots occasionally," but not heavily since "a few months ago." March 2019 VA treatment records indicate the Veteran reported in a timely manner, appropriately dressed, and fully oriented. He stated he last drank the previous weekend and had "one too many," with friends but went home to bed without consequences. He denied using alcohol as an avoidance tool and stated he only used it to relax and enjoy with friends. In May 2019 he reported spending more time outside with friends, neighbors, and his dog as well as a vegetable garden which he enjoyed. He stated he continued to drink alcohol regularly including sometimes binge drinking, despite the effect on his mood and interaction with his medications. He denied any thoughts of worthlessness or helplessness. June 2019 treatment records indicate he continued to feel a 'lack of motivation" daily and struggled with a dysfunctional homelife due to financial issues, although he denied suicidal or homicidal ideations. In October 2019, the Veteran reported he used alcohol to calm himself and did not wish to stop. In February 2020, the Veteran's wife indicated her concern for the Veteran's ongoing alcohol consumption as well as his intrusive dreams and nightmares. At the February 2020 Board hearing, the Veteran testified that he used alcohol to cope and reported panic attacks occurring approximately once per week, during which he can't be around people and has to self-isolate. He also described angry outbursts about once a week as well as severe nightmares on a daily basis. His wife and granddaughter described the events of the Veteran's July 2018 hospitalization when he was found with a gun in his hand after firing two shots into a tree. The Veteran described drinking to avoid bad memories, unpleasant thoughts and a lost friend. His family reported mood swings in which the Veteran goes from happy to very irritable and angry, and described suicidal ideation since 2017. The Veteran stated his belief that his diabetes combined with his "smelling like a still," prevent him from getting a job. He was afforded an additional PTSD examination in April 2020, during which he reported drinking "occasionally" and appeared unsure which medications he was prescribed. The Veteran indicated his "whole life is worse" and described worsening nightmares and irritability. He once again appeared a somewhat unreliable historian, describing the July 2018 events preceding his hospitalization as "three of four months ago," but stated since then he "scared himself" and no longer considers thoughts of self-harm. The examiner concluded the Veteran manifested occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood due to symptoms of depressed mood, anxiety, chronic sleep impairment, mild memory loss, impairment of short or long term memory, flattened affect, disturbances of motivation or mood, and difficulty in establishing and maintaining effective work and social relationships. However, the examiner did not find the Veteran to be a risk to himself or others. The Veteran underwent a private psychological evaluation in May 2020. The private examiner stated the Veteran's PTSD with depressive symptoms was suppressed while he was working full time, but that retirement caused a recurrence. After noting his 2018 hospitalization, the examiner described the Veteran as variable in mood, isolated, "currently abstinent from alcohol," experiencing audio and visual hallucinations, with no friends and a poor relationship with his wife and family. The Veteran presented as unremarkable in manner and appropriate in appearance, alert, well oriented, logical and coherent, although he reported vague auditory or visual hallucinations and suicidal ideation. He described sleeping poorly with regular nightmares and impaired attention and concentration due to overwhelming anxiety and depression. Upon examination he was slow in calculations with mildly impaired short- and long-term memory, although he exhibited average intelligence with unimpaired insight and judgment. The Veteran reported a low level of productivity and high level of isolation, verbalizing feelings of hopelessness; the examiner noted clear deficiencies in areas of work, mood, family and social relationships, adapting to stressful circumstances and establishing effective social relationships. The examiner concluded the Veteran exhibited total social and occupational impairment since 1969 due to gross impairment of thought processes, described as auditory and visual hallucinations, and that he remained a danger to himself. With regard to employment, the examiner stated the Veteran would "have good days and bad days," would be absent from work three or more times per month and would not be capable of performing occupational duties on full time basis. The Veteran was afforded an additional VA psychological examination in July 2020, during which reported completing the activities of daily living independently. He reported no marital strain with his spouse of 40-plus years, stating he liked to take his wife "out and do anything, happy go lucky guy, anything suits me." He also indicated no social deficits in his relationship with his cohabitating daughter and granddaughter and reported speaking with his brothers and sisters periodically as well as going fishing with his nephew a month earlier. The Veteran reported serving as an active member of his church, attending services every Sunday prior to Covid-19 restrictions, and stated his alcohol use was down to "one beer per month." He presented as fully oriented, with fair mood, euthymic affect, adequate memory and attention, average intelligence, adequate judgment, logical thoughts and he denied hallucinations or homicidal/suicidal ideation. The examiner concluded the Veteran manifested occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication due to symptoms of anxiety, chronic sleep impairment and disturbances of motivation or mood. Finally, August 2020 VA treatment records indicate the Veteran reported drinking more alcohol lately due to the death of a friend. Analysis As noted above, a January 2013 VA examiner documented comorbid diagnoses of PTSD and alcohol dependence, stating it was impossible to differentiate between the symptoms of the two disorders. The May 2020 Board remand noted that the March 2014 and April 2020 VA examinations of record did not consider the Veteran's alcohol abuse disorder, and remanded for an opinion on whether this disorder should be considered as due to his PSTD and, if not, whether it was possible to differentiate which symptoms were attributable to each disorder. The July 2020 VA examiner opined that the Veteran's alcohol abuse disorder was not due to or a result of his PTSD but stated that it was impossible to differentiate the symptoms of the two disorders without resort to speculation. VA is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). If the conditions cannot be sufficiently distinguished, entitlement to the benefit sought is determined based on the overlapping symptoms, which are attributed in whole to the service-connected disability. 38 C.F.R. § 3.102; Id. at 181. As two separate VA examiners were unable to identify the particular symptoms of the Veteran's comorbid psychological disorders, both the Veteran's alcohol abuse disorder and PTSD symptoms will be considered when determining whether to award an increased rating. Upon review of the evidence, the Board finds that the Veteran's PTSD symptoms do not more closely approximate total occupational and social impairment at any time during the period on appeal. As noted above, an analysis conducted under 38 C.F.R. § 4.130 should be primarily symptom driven. Although the May 2020 private examiner opined that the Veteran demonstrated total social and occupational impairment, this assessment reflects neither the results of the concurrent May 2020 examination nor the overall record. While the Veteran has endorsed occasional auditory hallucinations, described as someone calling his name, he has stated in the past that he does not let them affect him. Similarly, while the Veteran was hospitalized once in 2018, his expression of suicidal ideation has been otherwise consistently passive in nature, and he has been regularly regarded as a low suicide risk by treating VA clinicians, as opposed to a consistent danger to himself or others. As such, while the Veteran might demonstrate some of the symptomatology contemplated by the 100 percent rating, the frequency and severity of these symptoms does not rise to the level of total impairment. The Board observes that the Veteran has been married for over 40 years and has at times endorsed a close relationship with his wife, daughter, and granddaughter, as well as other family members. He has also consistently presented as appropriate in appearance, with normal and logical thought and speech processes as well as adequate insight and judgment. Although he has exhibited some problems with short- and long-term memory as well as minor difficulty with cognitive exercises, there is no indication he has at any point been unable to perform the activities of daily living. The frequency and severity of the Veteran's other symptoms: depressed mood, anxiety, chronic sleep impairment with nightmares, mild memory loss, disturbances of motivation or mood, irritability, avoidance of crowds, impairment of short and long term memory, flattened affect, difficulty in establishing and maintaining effective work and social relationships, are contemplated by the 70 percent and lower criteria. 38 C.F.R. § 4.130, DC 9411. As such, a rating in excess of 70 percent must be denied. 2. Entitlement to a TDIU The Veteran asserts an inability to work as a result of his service-connected diabetes mellitus and PTSD. Total disability ratings for compensation may be assigned where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation because of service-connected disabilities. If there is only one such disability, this disability shall be ratable as 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16. In this case, the Veteran has PTSD, rated as 70 percent disabling as well as diabetes mellitus type II, rated as 20 percent disabling, both for the entire period on appeal, thereby meeting the criteria for consideration of a TDIU. For TDIU purposes, marginal employment is not to be considered substantially gainful employment. 38 C.F.R. § 4.1. Factors to be considered, however, will include the Veteran's employment history, educational attainment, and vocational experience. 38 C.F.R. § 4.16. In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Appeals for Veterans Claims (Court) discussed the meaning of "substantially gainful employment." In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. To receive TDIU, the Veteran's service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). However, the Court has indicated that a veteran's ability or inability to engage in substantial gainful activity has to be looked at in a practical manner, and that the thrust is whether a particular job is realistically within the capabilities, both physical and mental, of the appellant. See Moore, 1 Vet. App. at 83. VA treatment and Social Security Administration records reflect that the Veteran has an 11th grade education. Upon discharge from service, he worked as a factory worker for a time before moving home and becoming a police officer for 25 years. After retirement, he worked as a security guard for a casino for seven years before being laid off in 2009 "due to the economy." He has not worked since. As noted above, the Veteran stated in September 2016 that his PTSD leaves him "unable to concentrate and perform daily activities;" and in June 2017 reported he was unable to maintain even a part time job due to "grossly inappropriate behavior" and an inability to get six to eight hours of sleep. A history of the nature and extent of the Veteran's service-connected PTSD symptomatology is given above. The Board notes that the Veteran's other service-connected disability, diabetes mellitus type II, has a minimal impact on his ability to find and maintain gainful employment. An April 2014 VA examiner noted the Veteran's diagnosis as well as his prescribed insulin and oral hypoglycemic agent, stating the condition had no complications and did not impact his ability to work. An April 2015 VA examiner observed the same as well as the absence of hospitalizations due to the condition and noted that the Veteran's hypertension and neuropathy were unrelated to his diabetes mellitus. In July 2018, a VA examiner observed no loss of strength or weight or any other complications and opined that the condition had no effect on the Veteran's ability to work. During a September 2019 VA examination, the Veteran described the impact of his diabetes mellitus as "[they] told me to exercise, what to eat and not to eat and to have blood sugar checked occasionally;" he reported no episodes, reactions or other complications. The examiner noted the Veteran manifested erectile dysfunction and opined that his diabetes mellitus could affect his employment by making him sleepy. However, an August 2019 VA examiner noted no complications from diabetes or functional impact on the Veteran's ability to work. After a review of the record and resolving all reasonable doubt in favor of the Veteran, the Board finds that he has been unable to find and maintain gainful employment as a result of his psychological disorders. As discussed previously, the Veteran's PTSD and alcohol abuse disorders are comorbid, with overlapping symptomatology, and all such symptoms must therefore be attributed to his service-connected PTSD. The Veteran does not possess a high school degree, and his only post-military employment experience is in law enforcement and security. As noted above, entitlement to a TDIU must be looked at in a practical manner to see whether a particular job is within his capabilities. Throughout the period on appeal, several clinicians have observed that the Veteran's alcohol use has a negative effect on his mood, causing increased irritability and decreased ability to interact with others, leading to self-isolation. A private examiner opined that the Veteran would have "good days and bad days" but would be unable to complete a normal workweek, interact with the public or get along with others due to psychological symptoms. Finally, the Veteran testified at the Board hearing that it would be difficult to obtain employment "smelling like a still." Given the regularity of the Veteran's alcohol abuse disorder symptoms and his inability to accept instructions or to positively interact with others on a daily basis, the Board finds that he lacked the ability to engage in substantially gainful activity commensurate with his prior education and experience.. A March 2014 VA psychological examiner did not note the Veteran's alcohol abuse disorder, but observed occupational impairment with reduced reliability and productivity due to symptoms of depressed mood, anxiety, chronic sleep impairment, disturbances of motivation or mood, difficulty in establishing and maintaining effective work relationships, suicidal ideation and impaired impulse control. An April 2016 VA clinician noted mild cognitive impairment, severe depressive symptoms, minimal anxiety symptoms and alcohol use disorder. Throughout the remainder of the appeal period, any improvement in the Veteran's symptoms, as well as his alcohol abuse, appears generally temporary, and most symptoms have actually worsened. Although the July 2020 PTSD examination indicated an overall decrease in the Veteran's symptomatology, August 2020 VA treatment records document an increase in alcohol use, making sustained improvement unlikely. As such, and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's PSTD prevented him from finding or maintaining gainful employment for the entire period on appeal. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) ("By requiring only an 'approximate balance of positive and negative evidence'..., the nation, 'in recognition of our debt to our veterans,' has 'taken upon itself the risk of error' in awarding... benefits.") T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. C. Schumacher, 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.