Citation Nr: 21030575 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 17-15 780 DATE: May 19, 2021 ORDER An initial rating of 20 percent, and no higher, for the lumbar spine disability is granted. An initial rating higher than 10 percent for the left knee disability is denied. An initial rating higher than 10 percent for the right knee disability is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. During the course of the appeal, the Veteran's lumbar spine disability was at times manifested by muscle spasm and abnormal gait, but there is no evidence of forward flexion of 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least 4 weeks but less than 6 weeks. 2. The Veteran's left and right knee disabilities have not been manifested by flexion limited to 30 degrees or worse; or compensable limitation of extension. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 20 percent, and no higher, for the lumbar spine disability have been more nearly approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.71a, Diagnostic Codes 5235-5243. 2. The criteria for an initial rating higher than 10 percent for the left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5010, 5260 and 5261. 3. The criteria for an initial rating higher than 10 percent for the right knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had service in the Army Reserve from May 1979 to May 1982, with active service from May 1979 to October 1979. These matters come before the Board of Veterans Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). A transcript of the Veteran's February 2021 testimony at a virtual hearing before the undersigned Veterans Law Judge is of record. Since the Agency of Original Jurisdiction (AOJ) last considered the appeal, additional evidence has been associated with the record. Since the Veteran has waived initial review of this evidence by the AOJ, review of the evidence by the Board is appropriate. See 38 U.S.C. § 7105(e). Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. An initial rating higher than 10 percent for the lumbar spine disability Service connection for the lumbar spine disability was granted in the June 2013 rating decision that is the subject of this appeal; an initial rating of 10 percent was assigned under 38 U.S.C. § 4.71a, Diagnostic Codes 5010 and 5242, effective August 30, 2011. The Veteran seeks a higher initial rating, specifically noting that he wants a 60 percent rating for his back. He testified in February 2021 that he had nerve damage and was taking three medications, which helped but did not provide complete relief. On average, his pain was at a level five with medication and without medication, would be at a level eight or nine. The Veteran also testified that he had constant spasms (and was experiencing a spasm at the time of the hearing); that he had been prescribed bed rest by his private physician at times but she used more therapy like water therapy Disabilities of the spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. These criteria are to be applied irrespective of whether there are symptoms such as pain (whether or not it radiates), stiffness, or aching in the affected area of the spine, and they "are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine." 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). Ratings in excess of 10 percent pertinent to the lumbar spine are provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis (20 percent); forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine (40 percent); for unfavorable ankylosis of the entire thoracolumbar spine (50 percent); and for unfavorable ankylosis of the entire spine (100 percent). Id. For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Note (2) of the General Rating Formula provides that for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. See also Plate V, 38 C.F.R. § 4.71a. Alternatively, IVDS can be rated under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). This formula provides a 20 percent rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). The rating criteria for the spine were amended on February 7, 2021. Diagnostic Code 5242 was amended to make clear that its application was for degenerative arthritis/disc disease of the spine other than IVDS. Diagnostic Code 5243 was amended to make clear that it should only be applied for disc herniation with compression and/or irritation of the adjacent nerve root, and that all other disc diagnoses should be rated under Diagnostic Code 5242. Upon review of the record, and after resolving all doubt in the Veteran's favor, the Board finds that an initial rating of 20 percent is warranted for the lumbar spine disability during the entire appeal period. In this regard, the Veteran testified to constant spasms and private treatment records consistently reflect significant spasm and slow, deliberate gait. Additionally, the October 2016 VA examiner noted guarding and muscle spasm of the thoracolumbar spine, objective evidence of tenderness to the lower thoracic and lumbar spine, and that pain and lack of endurance would significantly limit functional ability with flare-ups with a loss of 10 degrees of flexion. The Veteran was unable to walk the treadmill during cardiac stress test due to back spasm as reflected in a May 2017 VA treatment record. Accordingly, after resolving all doubt in the Veteran's favor, a 20 percent rating is warranted during the appeal period. However, a rating higher than 20 percent is not warranted at any time during the appeal. The Board acknowledges the Veteran's assertions concerning the symptoms he has experienced as a result of his lumbar spine disability during the course of the claim. To merit the assignment of the next highest (40 percent) rating provided under the General Rating Formula, the evidence must show that the Veteran had forward flexion of the thoracolumbar spine of 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. The evidence in this case does not show either. Rather, the Veteran's thoracolumbar spine exhibited forward flexion limited, at worst, to 70 degrees; and there is no evidence of ankylosis. See VA examination reports; VA and private treatment records. Consideration has been given to any functional impairment and any effects of pain on functional abilities due to the Veteran's service-connected lumbar spine disability. The Board acknowledges the Veteran's subjective complaints made during testimony and during VA examination. The Board also acknowledges the objective evidence during the October 2016 VA examination of pain with flexion, extension, left lateral flexion, and left lateral rotation; and the objective evidence during the December 2020 VA examination of pain on rest/non-movement. In this case, the Board does not find any additional functional loss that is not contemplated by the currently assigned 20 percent rating. The Veteran has described functional limitations which are contemplated in the rating criteria, and the Veteran himself has not described additional motion loss or functional impairments during flare-ups that meet or more nearly approximate the criteria for the next higher (40 percent) rating. Indeed, he did not exhibit additional loss of motion during repetitive use testing during either VA examination and while the October 2016 VA examiner determined that pain and lack of endurance would significantly limit functional ability with flare-ups with a loss of 10 degrees of flexion to 70 degrees, this is still 40 degrees more than the amount needed to support a 40 percent rating. In addition, the December 2020 VA examiner concluded that pain, weakness, fatigability, and incoordination do not significantly limit functional ability with repeated use over a period of time. Considering the foregoing, the Board finds that a rating higher than the 20 percent rating assigned for the Veteran's lumbar spine disability is not warranted based on functional impairment at any time during the appeal period. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-06. Nor is the assignment of a rating higher than 20 percent for the Veteran's lumbar spine disability warranted under the IVDS Formula at any time during the appeal. This is so because there is no evidence of incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The Board acknowledges that the Veteran testified in February 2021 that he had been prescribed bed rest by his private physician; however, none of the records obtained from this provider corroborate this assertion since they do not indicate that any bed rest was prescribed. The Board has also considered whether the Veteran's service-connected lumbar spine disability manifests any associated objective neurologic abnormalities at any time during the appeal period. The Board acknowledges that the Veteran has had complaints related to pain radiating into his lower extremities and that private treatment record document decreased sensation to the right L4 root; and that the Veteran had a slight decrease in muscle strength with bilateral hip flexion and hypoactive bilateral reflexes during the October 2016 VA examination. During the October 2016 VA examination, however, sensory examination was normal and straight leg raise test was negative; during the December 2020 VA examination, muscle strength, reflex, sensory, and straight leg raise testing was normal; and both VA examiners reported that there was no radicular pain or any other signs or symptoms due to radiculopathy and no other neurologic abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). Thus, radiculopathy manifested by at least mild incomplete paralysis has not been shown in either lower extremity and a separate compensable rating is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520. As radiating pain is contemplated in the General Rating Formula, the Veteran's lower extremity symptomatology is already contemplated in the rating assigned for the lumbar spine disability. No other neurological disabilities associated with his lumbar spine disability have been shown. For these reasons, a separate rating for other neurological abnormalities is not warranted in this case. The Board has considered whether a separate, compensable rating would be warranted for the scar noted on the Veteran's back. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994) (evaluations for distinct disabilities resulting from the same injury can be combined so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition.) In this case, however, the Veteran does not contend, and the evidence does not show, that a separate compensable rating is warranted for the reported scar since it has not been described during VA examination as painful and/or unstable and the total area was not greater than 39 square cm (6 square inches). 2. An initial rating higher than 10 percent for the left knee disability 3. An initial rating higher than 10 percent for the right knee disability Service connection for the bilateral knee disability was granted in the June 2013 rating decision that is the subject of this appeal. Initial ratings of 10 percent were assigned effective August 30, 2011. The left knee was rated under 38 U.S.C. § 4.71a, Diagnostic Codes 5010 and 5260 and the right knee was rated under Diagnostic Code 5260. The RO clearly noted that the provisions of 38 C.F.R. §§ 4.40 and 4.45 concerning functional loss due to pain, fatigue, weakness, or lack of endurance, incoordination, and flare-ups, as cited in DeLuca had been considered and applied under 38 C.F.R. § 4.59. The Veteran seeks higher initial ratings, specifically noting that he wants a 20 percent rating for each knee. He testified in February 2021 that his left knee is worse than the right and causes him the most pain, staying around a level four or five with the right knee being less intense around a level three, with the help of the same medication he takes for his lumbar spine disability. The Veteran also reported that his knees locked up and that his main problem was walking long distances. He reported that he uses a cane when he must walk longer and that he uses motorized scooters with baskets at stores. The Veteran also reported that he did not do that much anymore and that he lived with a brother who took care of most everything. He testified that his left knee is stiff and that he slept with a pillow between his legs to keep them from cramping and he keeps knee pads on given to him by VA. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after February 7, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. However, the Board may not apply a current regulation prior to its effective date unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Prior to February 7, 2021, Diagnostic Code 5010 provided that arthritis due to trauma was to be rated as degenerative arthritis and Diagnostic Code 5003 provided that degenerative arthritis established by x-ray findings would be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When, however, the limitation of motion of the specific joint(s) involved was noncompensable under the appropriate diagnostic code(s), a 10 percent rating was for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under diagnostic code 5003. Limitation of motion had to be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Under 38 C.F.R. § 4.59, painful motion was an important factor of disability from arthritis and painful joints were entitled to at least the minimum compensable rating for the joint. Effective February 7, 2021, Diagnostic Code 5010 provides that post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are two or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25. The rating criteria provided for limitation of motion of the knee and leg are found at 38 C.F.R. § 4.71a, Diagnostic Codes 5260 and 5261. These criteria underwent no changes when the February 7, 2021, amendments went into effect. Diagnostic Code 5260 provides ratings for limitation of flexion. Flexion of the leg limited to 60 degrees is noncompensable, flexion limited to 45 degrees merits a 10 percent rating, limitation of flexion to 30 degrees warrants a 20 percent evaluation, and a 30 percent evaluation requires that flexion be limited to 15 degrees. Diagnostic Code 5261 provides ratings for limitation of extension of the leg with the following ratings assigned: 0 percent for extension limited to 5 degrees, 10 percent for extension limited to 10 degrees, 20 percent for extension limited to 15 degrees, 30 percent for extension limited to 20 degrees, 40 percent for extension limited to 30 degrees, and 50 percent for extension limited to 45 degrees. For rating purposes, normal range of motion of the knee is from zero to 140 degrees. See 38 C.F.R. § 4.71a, Plate II. Separate evaluations may be assigned for compensable limitation of flexion and extension of the same joint. See VAOPGCPREC 09-2004. The Board finds that the preponderance of the evidence is against the claims for initial ratings higher than 10 percent for the left and right knee disabilities based on limited motion at any time during the appeal period. At no time has either of the Veteran's knees reflected motion limited to 45 degrees of flexion to support even a 10 percent rating under Diagnostic Code 5260. Rather, at worst, the Veteran exhibited flexion in the right knee limited to 120 degrees and in the left knee limited to 130 degrees during the October 2016 VA examination. A higher or separate rating for limitation of extension is also not warranted as the Veteran's knees have never reflected motion limited to 10 degrees of extension to support a 10 percent rating under Diagnostic Code 5261. Rather, bilateral extension has consistently been reported as normal during VA examinations. Consideration has been given to left and right knee functional impairment and effects of pain on functional abilities. The Board acknowledges the Veteran's assertions regarding functional impairment caused by his knees made in writing and testimony, as well as during VA examination and treatment. The VA examinations conducted in October 2016 and December 2020, however, did not reveal objective evidence of pain with weight bearing, localized tenderness or pain on palpation of the joint or associated soft tissue, or crepitus, and both examiners reported that pain noted on exam during range of motion testing does not result in/cause functional loss and that pain, weakness, fatigability and incoordination do not significantly limit functional ability with repeated use over a period of time for either knee. The Board finds that the functional impairment and effects of pain exhibited by the service-connected left and right knee disabilities have already been considered by the RO in the assignment of the 10 percent ratings. The Veteran's limitation of left and right knee motion has not risen to a compensable level under Diagnostic Codes 5260 and 5261. Thus, the 10 percent rating presently assigned contemplate the functional impact arising from the objective findings and the Veteran's subjective complaints of painful motion. Accordingly, a higher or separate rating based on limitation of flexion and extension is not warranted. The Board has also considered whether either of the Veteran's knees should be separately rated for recurrent subluxation or lateral instability under Diagnostic Code 5257. See VAOPGCPREC 23-97; 62 Fed. Reg. 63, 604 (1997). Prior to February 7, 2021, Diagnostic Code 5257 provided the rating criteria for other impairment of the knee. Ratings of 10, 20, and 30 percent were provided for slight, moderate, and severe recurrent subluxation or lateral instability, respectively. Diagnostic Code 5257 still rates recurrent subluxation or instability since the February 7, 2021, amendments went into effect. A 10 percent rating applies when there is a sprain, incomplete ligament tear, complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating applies when there is one of the following: a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), or a walker) or bracing for ambulation. A 30 percent rating applies when unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. The updated Diagnostic Code 5257 also includes ratings specifically for patellar instability. A 10 percent rating applies when a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. A 20 percent rating applies when a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: a brace, cane, or walker. A 30 percent rating applies when a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or walker. The evidence does not support a finding that the Veteran is entitled to separate ratings for either knee under the old or current version of Diagnostic Code 5257. The Board initially notes that while the Veteran has been issued knee braces and a cane by VA for his knee disabilities, he has consistently denied a history of recurrent subluxation, lateral instability, or recurrent effusions during VA examinations. Moreover, when asked by the undersigned at his hearing whether either of his knees give way, he indicated in response that they were stiff, with no indication that they were unstable or gave way during that hearing or in any other statements. In addition, joint stability testing was not indicated at the time of the October 2016 VA examination and was bilaterally normal at the time of the December 2020 VA examination. Finally, there is no indication of sprain, incomplete ligament tear, complete ligament tear (repaired, unrepaired, or failed repair), or that the diagnosed bilateral knee condition involves the patellofemoral complex (quadriceps tendon, the patella, and the patellar tendon). The Board has considered whether separate, compensable ratings would be warranted for the scars noted on the Veteran's knees. See Esteban, 6 Vet. App. at 262. In this case, however, the Veteran does not contend, and the evidence does not show, that a separate compensable rating is warranted for any of the reported scars since none have been described during VA examination as painful and/or unstable and the total area of all related scars was not greater than 39 square cm (6 square inches). In sum, the preponderance of the evidence supports the currently assigned 10 percent ratings for the left and right knee disabilities under Diagnostic Code 5260. The evidence in this case is not so evenly balanced to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to a TDIU is remanded. The law provides that a total disability rating may be assigned where the schedular rating is less than total, when the person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or 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. § 4.16(a). Marginal employment is not considered to be substantially gainful employment. Id. The Veteran is service connected for the lumbar spine and bilateral knee disabilities. In this decision, the Board is increasing the rating assigned for the lumbar spine disability to 20 percent but continuing the 10 percent ratings assigned to the knees. The Veteran's combined rating will not meet the schedular requirements set forth in 38 C.F.R. § 4.16(a) for consideration of a TDIU at any point during the appeal period even when the 20 percent rating is implemented. In the case of a veteran who is unemployable by reason of a service-connected disability, but who fails to meet these schedular percentage standards, the case should be submitted to the Director, Compensation Service, for extraschedular consideration. See 38 C.F.R. § 4.16(b). For a veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other veterans with equal rating of disability. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. This is so because a disability rating is recognition that the impairment makes it difficult to obtain or keep employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Board notes that the issue of entitlement to a TDIU was certified to the Board in July 2019, but that the RO continued development after certification following the Veteran's submission of a VA Form 21-8940 in December 2020. The evidence of record indicates that the Veteran stopped working full time in 1998, though he remained employed through a disability program until 2006, and was awarded Social Security benefits in May 2002. He also worked on a part time basis for a period of time between 2019 and 2020. The October 2016 VA examiner determined that the lumbar spine and knee conditions would impact the Veteran's ability to perform any type of occupational task, though sedentary work would be possible, and the December 2020 VA examiner determined that the lumbar spine condition would impact his ability to work but that he would be able to perform duties associated with light or sedentary work. The Board finds that referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted considering this evidence. The matter is REMANDED for the following action: 1. Submit the claim for entitlement to a TDIU to the Director of Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16 (b). 2. If the claim remains denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.