Citation Nr: 21031914 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 17-36 573 DATE: May 25, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease (DDD) cervical spine is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis prior to May 29, 2020 is remanded. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. FINDING OF FACT The Veteran's service-connected DDD of the cervical spine (cervical spine disability) more nearly approximated forward flexion limited to 45 degrees, and pain not severe enough to cause abnormal spinal contour, but not forward flexion limited to 30 degrees or less, combined range of motion of 170 degrees or less, muscle spasm or guarding severe enough to result in abnormal gait or abnormal spinal contour, or symptoms of comparable severity, to include consideration of flare-ups and functional impairment/loss. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for the Veteran's cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242-5237. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from December 1977 to December 1981, December 1985 to March 1986, and April 1986 to September 1986. These matters come before the Board of Veterans' Appeals (Board) from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a March 2019 decision, the Board denied entitlement to a higher initial rating for a neck disability and denied TDIU. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (Court). In a February 2020 order, the Court granted the parties' joint motion for remand (JMR). The order vacated the Board's decision and remanded the matters to the Board for action consistent with the JMR. In November 2020, the Board granted entitlement to a TDIU from May 29, 2020 and remanded the remaining claims for further development. Increased Rating Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Entitlement to an initial disability rating in excess of 10 percent for degenerative disc disease (DDD) cervical spine The Veteran contends that the symptoms of her cervical spine disability warrant an increased disability rating. The Veteran has been in receipt of a 10 percent rating for DDD of the cervical spine under 38 C.F.R. § 4.71a, DC 5242-5237. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Here Diagnostic Code 5242 reflects DDD of the cervical spine. During the pendency of the Veteran's increased rating claim on appeal, the rating criteria for evaluating arthritis and certain musculoskeletal disabilities were amended in November 2020, December 2020, and February 2021. See 85 Fed. Reg. 76,453-76,469 (Nov. 30, 2020); 85 Fed. Reg. 85,523-85,524 (Dec. 29, 2020); 86 Fed. Reg. 8,142-8,144 (Feb. 4, 2021). The change, effective February 7, 2021, added certain diagnostic codes and amended the rating criteria for several diagnostic codes listed under 38 C.F.R. § 4.71a. The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board may not apply a current regulation prior to its effective date, unless the regulation specifically provides otherwise. See VAOPGCPREC 7-2003 (Nov. 19, 2003); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 307 (1991) to the extent that it conflicts with the precedents of the United States Supreme Court and the Federal Circuit). However, the Board is not precluded from applying prior versions of the applicable regulations to the period on or after the effective date of the new regulation if the prior versions were in effect during the pendency of the appeal. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); see also DeSousa v. Gober, 10 Vet. App. 461, 467 (1997)." As there is no indication that the above amendments were intended to be applied retroactively, the changes do not apply before the date they became effective. See Kuzma, 341 F.3d at 1329. For the entire appeal period, the criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. See 38 C.F.R. § 4.71a. The General Rating Formula provides that with or without symptom such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings are assigned: A 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees, but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees, but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Id. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. Id. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. Id. The highest rating, 100 percent rating, is assigned for unfavorable ankylosis of entire spine. Id. Note (2) provides that normal forward flexion, extension, and left and right lateral flexion of the cervical spine are all zero to 45 degrees and left and right lateral rotation of the cervical spine are both zero to 80 degrees. The regulations applicable to rating musculoskeletal disabilities require that VA must also consider the extent that a veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ('flare-ups') due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45. Intervertebral disc syndrome is rated either under the General Rating Formula or alternatively under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, pursuant to Diagnostic Code 5243, whichever method results in a higher disability rating. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 20 percent disability rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the preceding 12 months. A 40 percent disability rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the preceding 12 months. The maximum 60 percent disability rating is warranted for incapacitating episodes having a total duration of at least six weeks during the preceding 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. VA regulations provide that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See Note (1). For VA 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. 38 C.F.R. § 4.71a, Diagnostic Code 5242, Note (5). Turning to the evidence of record, a January 2010 VA examination report reflects that the Veteran complained of neck pain that began following her initial injury. She reported that the pain has progressed since then and is aggravated by overhead activities, particularly showering or doing her hair. She complained of a popping sensation in her neck, associated stiffness, and flare-ups that occur several times a week and are precipitated by getting up in the morning, doing dishes, or showering/grooming. She denied walking or standing limitation due to neck pain. She denied use of any assistive devices. She reported that the effect of activities of daily living include her husband braiding her hair for her and helping her dress. She also reported that she has some difficulty with using the toilet and particularly with wiping; however, she is independent in that. She denied any incapacitating episodes in the past 12 months in which she was prescribed bedrest by a physician. On examination, there was some tenderness to palpation of the cervical and upper thoracic paraspinal muscles. Forward flexion of the neck, extension, and left and right lateral flexion were 0 to 45 degrees with pain at the end of range of motion (ROM). On repetitive testing, there was no additional limitation due to painful motion, fatigue, weakness, or incoordination, and ROM values were unchanged from baseline testing. The Veteran was not experiencing a flare-up during the examination; thus, the examiner found that it would be speculative for him to report on limitation during a flare-up. A May 2014 VA examination report reflects that the Veteran reported she believed her C-2, C-3, and C-4 were "messed up" as her neck cracks, hurts all the time, and she cannot turn it sometimes. She reported that the pain clinic will not see her anymore. The Veteran did not report flare ups of her disability. On examination, the examiner found the Veteran's forward flexion, extension, right lateral flexion, and left lateral flexion to be to 45 degrees or greater with no objective evidence of painful motion and with no additional loss of range of motion after repetitive use testing. Right lateral rotation was to 70 degrees with no objective evidence of painful motion and left lateral rotation was to 80 degrees with no objective evidence of painful motion. The examiner noted the Veteran did not have muscle spasm, guarding, or ankylosis. The examiner noted the Veteran did not have IVDS. She did not use any assistive devices. In her February 2016 NOD, the Veteran reported that she has incapacitating episodes "all the time" and it is documented in her VA medical records. She reported that she lost her job because of the frequency of her DDD. She requested a 100 percent disability rating. The Veteran had another examination for her neck disability in August 2017. She reported neck pain "all the time" described as a 7 out of 10 (10 indicating the highest level of pain). The Veteran reported flare ups of her disability, saying she had neck pain all the time with flare ups occurring activities of combing her hair, putting clothes on, and when driving. The Veteran reported functional loss/impairment described as difficulty combing her hair, putting on clothes and underwear, and driving for a long period of time. On examination, initial ROM revealed forward flexion, extension, and right and left lateral flexion to 35 degrees. Right and left lateral rotation were normal. The examiner found that ROM itself contributed to functional loss described as limitation in ROM. Pain was noted on examination but did not result in/cause functional loss. There was no evidence of pain with weight-bearing and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. The Veteran was able to perform repetitive use testing with no additional loss of function or ROM after three repetitions. The examiner noted that while the Veteran was not being tested during a flare up, the examination was medically consistent with the Veteran's statements of functional loss during a flare up. He noted that pain, weakness, fatigability, or incoordination did not significantly limit functional ability with flare-ups. The examiner opined the Veteran did not have muscle spasm, guarding, or ankylosis. The examiner also observed the Veteran regularly used a cane but did not have IVDS. A December 2020 VA examination report reflects that the Veteran reported that the symptoms of her cervical spine disability have progressed/worsened since her initial injury. She described her current symptoms as popping, neck stiffness, muscle spasms, pain, and difficulty sleeping. She reported flare-ups described as neck stiffness and difficulty turning side-to-side. She also reported functional loss/impairment described as inability to turn her head from side-to-side. On examination, initial ROM testing was normal on forward flexion, extension, right lateral flexion, and left lateral flexion. Right lateral rotation was to 70 degrees as well as left later rotation. Range of motion itself contributed to functional loss described as difficulty moving neck side-to-side. Pain was noted on examination and caused functional loss on right and left lateral rotation. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive-use testing with at least three repetitions with no additional loss of function or ROM after three repetitions. Pain caused functional loss. Pain significantly limited functional ability with repeated use over a period of time. The examiner was able to describe this in terms of ROM which remained the same as the initial ROM. The examination was not conducted during a flare-up however the examination is medically consistent with the Veteran's statements describing functional loss during flare up. Pain significantly limits functional ability with flare-ups. The examiner was able to describe this in terms of ROM which remained the same as the initial ROM findings. The Veteran did not have guarding or muscle spasm. She did have disturbance of locomotion and pain when moving neck from side-to-side. There was no muscle atrophy. There was no ankylosis. The Veteran did not have IVDS of the cervical spine. She did not use an assistive device for her cervical spine disability. There was no objective evidence of pain on non-weight bearing. Passive ROM was the same as active ROM. The Veteran's medical treatment records show she continues to be treated for chronic neck pain that often results in a stiff neck and loss of range of motion. Upon review of the evidence of record, the Board finds that an initial disability rating in excess of 10 percent for the Veteran's cervical spine disability is not warranted. Throughout the entire period on appeal, the Veteran's ROM testing for her cervical spine revealed flexion to 45 degrees, with the exception of the August 2017 ROM findings which revealed flexion to 35 degrees. The combined range of motion was consistently well above 170 degrees. The Veteran's flare-ups in 2010 were described as pain with stiffness and limitation in turning her head from side-to-side that were precipitated by activities of daily living. In May 2014, she did not complain of flare-ups. In 2017, her complaint of flare-ups returned and were described as increased pain in doing daily activities and driving. The examiner found that her flare-ups did not significantly limit functional ability. In 2021, she described functional impairment/loss due to flare-ups as neck stiffness and difficulty turning her head from side-to-side. The Veteran's competent reports of pain resulting in functional impairment has been considered, and under the General Formula, the Veteran is in receipt of a 10 percent rating as the minimum evaluation available for a joint with painful motion per 38 C.F.R. § 4.59. However, a rating higher than 10 percent is not warranted at any time during the period on appeal. As previously discussed, the Veteran's range of motion in flexion ranged from 35 degrees to 45 degrees during the period on appeal. The evidence of record, including the Veteran's medical treatment records, do not at any time note symptomatology that more nearly approximated forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees, combined range of motion of the cervical spine not greater than 170 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. In fact, the 2014, 2017, and 2021 VA examination reports specifically reflect that the Veteran's neck disability did not include guarding or muscle spasms, and at no time does the Veteran otherwise report suffering from neck disability symptomatology that more nearly approximates that contemplated by a higher than 10 percent rating under DC 5237 at any time during the period on appeal. While the Veteran consistently complained of difficulty turning her head, ROM results revealed that bilateral rotation never fell below 70 degrees. The Board has also considered whether a higher rating is warranted under an alternate diagnostic code. However, as indicated by the examination reports, the Veteran does not have IVDS, thus, a higher evaluation under DC 5243 is not available. Notably, the Veteran has consistently reported that she has been incapacitated due to her neck disability. However, the medical treatment records as well as the VA examination reports do not support this contention as a physician has never described her bedrest. Finally, the amended criteria under 38 C.F.R. § 4.71a for musculoskeletal disabilities effective February 7, 2021 do not have any impact on the rating assigned for the cervical spine disability in this case, as the general rating formula for diseases and injuries of the spine was not changed. Turning to the Veteran's claim for extraschedular consideration for her neck disability, the VA Rating Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). Under those circumstances, where the schedular evaluations are found to be inadequate, a Veteran may be awarded a rating higher than that encompassed by the schedular criteria. 38 C.F.R. § 3.321 (b)(1). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. Id. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (b)(1) (2016). The United States Court of Appeals for Veterans Claims (Court) has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) ("[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted"). With respect to the first prong of Thun, the evidence in the instant appeal does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The schedular rating criteria for neck disabilities contemplates loss of range of motion and pain. Here, the Veteran's symptoms are contemplated by the schedular rating criteria. The Veteran's neck disability has manifested by chronic pain, loss of range of motion, and inability to perform certain life activities due to her disability, which the Veteran has indicated cause difficulties in her daily life. Functional impairment due to pain, stiffness and spasms, are taken into account under §§ 4.40 and 4.45 in determining whether these factors cause an additional level of disability within the rating schedule beyond the measured limitation of motion. The Veteran's reported radiculopathy are already service connected and appropriately rated separately under DC 8510. As the threshold issue is not applicable, the criteria for referral for an assignment of an extraschedular rating of the disability are not met. 38 C.F.R. § 3.321 (b)(1). As such, referral for extraschedular consideration is not warranted. Notably, her claims of unemployability and the inability to take care of herself due to her neck disability are being addressed in the remand below. For the foregoing reasons, an increased rating in excess of 10 percent for the Veteran's cervical spine disability is not warranted. As the preponderance of the evidence is against higher ratings, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to a TDIU on an extraschedular basis prior to May 29, 2020 is remanded. The Veteran contends that her service-connected disabilities prior to May 29, 2020, migraine headaches, cervical radiculopathy of the bilateral upper extremities, impingement syndrome of the left shoulder, DDD of the cervical spine, and maxillary sinusitis disability prevent her from securing or following substantially gainful employment. Total disability ratings for compensation may be assigned pursuant to 38 C.F.R. § 4.16 (a) where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system and/or disabilities resulting from common etiology or a single accident are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. The Veteran does not meet the threshold percentage requirement for consideration of entitlement to a schedular TDIU prior to May 29, 2020. The Veteran's combined disability rating prior to that date was 30 percent from October 2003 and 60 percent from August 2017 (excluding a period of 100 percent convalescence). Even when the above threshold percentage requirements are not met, entitlement to a total rating, on an extra-schedular basis, may nonetheless be granted in exceptional cases, when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 3.321 (b), 4.16(b). According to her VA 21-8940, the Veteran last worked full-time in 2003 when she reported she became too disabled to work. However, she worked part-time until 2015 where she reported that she lost "6+ d/mo" from illness. She also reported that she attended community college but did not obtain a degree. Significantly, an April 2012 administrative note from her provider found that the Veteran had multiple medical ailments that make her disabled and prevent her to be gainfully employed. Additionally, the Veteran is in receipt of Social Security benefits due to her functional limitations. Finally, the Veteran's attorney has submitted a wealth of argument and evidence in support of her claim. Accordingly, the claim is referred to the Director of the Compensation Service or appropriate designee for this special consideration initially. Bowling v. Principi, 15 Vet. App. 1 (2001); See also Barringer v. Peake, 22 Vet. App. 242 (2008). Accordingly, before the Board can make any determination in this case, the claim must be remanded for referral to the Director of Compensation Service for initial consideration of entitlement to an extra-schedular TDIU. 2. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is remanded. In March 2021 correspondence, the Veteran, through her attorney, raised a claim for SMC. Specifically, she argues that she has an inability to dress herself, clean herself, feed herself, use the toilet, or keep herself safe from dangers in daily environment. When the Board has jurisdiction over a claim for an increased rating or a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), the Board must consider whether entitlement to any special monthly compensation (SMC) is raised by the record, regardless of whether the appellant has specifically pled it. SMC has been raised by the record. See Rice v. Shinseki, 22 Vet. App. 447, 45354 (2009); Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). The following basic considerations are critical in determining the need for the regular aid and attendance of another person: inability of the Veteran to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352 (a). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. The 2010 VA examination report for the cervical spine reflects that she reported that her husband braided her hair for her and helped her dress. As noted above, she is service-connected for cervical radiculopathy, PTSD, and impingement syndrome that may require personal assistance from others. As such, the Board must consider whether the combined impact of the Veteran's service-connected disabilities render her in need of aid and attendance. An opinion is warranted as to whether the Veteran's service-connected disabilities results in the need for aid and attendance. The matters are REMANDED for the following action: (Continued on the next page) 1. Refer the claim for TDIU to VA's Director of Compensation Service for extraschedular consideration. 2. Schedule the Veteran for a VA Aid and Attendance examination. The examiner should address whether the Veteran's service-connected disabilities result in disability (physical or mental) requiring the regular aid and attendance of another person to assist with activities of daily living such as dressing and undressing, keeping herself ordinarily clean and presentable; feeding; attending to the wants of nature; frequently adjusting of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; or protecting her from hazards or dangers incident to her daily environment. Z. SAHRAIE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Laroche, N. 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.