Citation Nr: 21032183 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 18-15 543 DATE: May 26, 2021 ORDER Entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional right middle finger disability is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional right knee disability is denied. Entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional left knee disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran's additional right middle finger deformity did not result from an event not reasonably foreseeable or any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of the part of VA. 2. The Veteran's additional right knee disability did not result from an event not reasonably foreseeable or any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of the part of VA. 3. The Veteran's additional left knee disability did not result from an event not reasonably foreseeable or any carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault of the part of VA. 4. The evidence does not indicate that the Veteran is unable to secure or follow substantially gainful employment as a result of service-connected disability. CONCLUSIONS OF LAW 1. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional right middle finger disability are not met. 38 U.S.C. § 1151 (2018); 38 C.F.R. §3.361 (2020). 2. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional right knee disability are not met. 38 U.S.C. § 1151 (2018); 38 C.F.R. §3.361 (2020). 3. The criteria for entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional left knee disability are not met. 38 U.S.C. § 1151 (2018); 38 C.F.R. §3.361 (2020). 4. The criteria for TDIU are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from October 1962 to October 1965. This case initially came before the Board of Veterans' Appeals (Board) on appeal from a September 2014 rating decision issued by a Regional Office (RO) of the Department of Veterans Affairs (VA). In June 2019, the Board remanded the claims for additional development. The case has since been returned to the Board. §1151 Claim Right Middle Finger The Veteran maintains that he has an additional right middle finger disability as a result of a December 2003 surgery at a VA facility. Specifically, he asserts that the wrong size spacer was used during the surgery. During a September 2002 VA general medical examination, the Veteran reported that he jammed his finger playing basketball during service in 1963. He stated that he did not seek medical attention, but noticed over the past five or ten years that he had been unable to make a fist with his right hand due to the swelling and deformity in the right second proximal interphalangeal (PIP) joint. On examination, the right middle finger PIP joint showed obvious hypertrophic changes with diminished extension and flexion. The impression was degenerative joint disease of the right second finger with a deformity. It was noted that he had diminished grip strength and diminished flexion and extension. A December 9, 2003 VA treatment record noted that the Veteran reported that his right long finger had gotten gradually crooked, hurt, and was stiff. He stated that he was unable to completely make a fist. On examination, he had considerable enlargement of the joint by about another 50 to 75 percent when compared to the same joint of the opposite hand. There was tenderness around the joint. The joint was leaning about 20 to 25 degrees to one side. He lacked about 34 to one inch touching the fingertip to the palm. X-rays showed calcium and bone build-up around the joint with what appeared to be an old fracture that had healed in a tilted position. It was also noted that he had severe narrowing of the joint space. The assessment was an old fracture of the PIP joint area resulting in traumatic arthritis and deformity. The surgeon had a long discussion with the Veteran concerning his options and that he elected to go ahead and try to improve the finger. He was informed that the finger would never be normal again and that they could try to improve his motions and symptoms, but no guarantees could be made. The Veteran opted to go ahead for an arthrotomy of the joint with decompression of the joint and insertion of a silastic joint spacer. A December 2003 informed consent document signed by the Veteran indicated that the risks/complications of the surgery included pain, stiffness, infection, and injury to the nerves, blood vessels, and tendons. A December 30, 2003 VA operative report indicated that the Veteran underwent replacement of implant with silastic PIP joint arthroplasty. It was noted that he went to the recovery room in apparently excellent condition with no problems having occurred. In January 2004, two weeks after the surgery, a VA treatment record indicated that the Veteran was doing very well and was not having any severe problems or difficulties. It was noted that he was exercising the finger very nicely. There was no redness, swelling, or drainage. He was able to flex his finger to 80 degrees with his PIP joint. His sutures were removed, and he was instructed to continue buddy taping the finger and exercising it. In February 2004, he stated that his pain had significantly improved and that he had good motion, but still had moderate difficulty with extension. On physician examination, the PIP region was quite swollen, and the incision was well-healed. He lacked about 10 to 15 degrees of full extension and had about 80 degrees of flexion. He had some mild radial deviation of the distal portion of his long phalanx and there was some blanching and normal sensation to the distal tip of his finger. He was instructed to continue buddy taping the finger and exercising it. It was noted that he was getting pretty good motion at that point. A March 2004 VA treatment record noted that the Veteran was fairly satisfied with the finger surgery. He had about 80 percent of normal range of motion of his finger. He could flex the finger about 90 degrees and could bring his fingertip to touch the proximal palm. He lacked about 5 to 10 degrees of extension, although he could passively extend the joint fully. There was still some very mild swelling around the joint, but it was minimal. The impression was very good result from PIP joint arthroplasty. It was noted that it was believed his real problem was lack of full excursion of the extensor mechanism because it was trapped with a little bit of scar tissue overlying the PIP joint area. It was believed that the tendon was trapped in the overlying skin as well as the bone underneath. This was treated by injection over the top and underneath the extensor mechanism to break loose the scar tissue. A July 2004 VA treatment record indicated that the Veteran complained that his finger was now curved since the surgery and that he had a large bruise under the joint, which was painful. It was noted that the right middle finger was slightly tender with swelling and deformity of the PIP joint. It was also noted that he had decreased flexion. An X-ray report noted that there was abnormal appearance of the bones at the PIP joint, which was noted might related to prior bony resection at the PIP joint and implant placement. There was some bony spurring irregularity at the PIP joint and bone fragments. It was noted that the changes might all related to prior surgery, but the possibility of fracture or infection was not excluded on plain film. An August 2004 VA treatment record noted that the Veteran complained of pain to the right long finger radial aspect PIP joint. It was noted that his finger was drifting to the ulnar side with a large callus or bony prominence on the medial side. It was noted that the Veteran was seen at the VA in Las Vegas and was told by the doctor there that he needed to speak to the surgeon because there seemed to be a problem with the arthroplastic component. In September 2004, he was seen at the orthopedic clinic. It was noted that since the surgery, he had an increased amount of pain and swelling along with ulnar deviation of the right long finger. On examination, he had an ulnar deviated PIP joint with swelling over the radial aspect. There was a slight amount of radial collateral ligament laxity. X-rays that were taken in Las Vegas were reviewed. It was noted that the X-rays revealed an ulnar deviated PIP joint with increased calcific changes over the radial aspect of the joint, especially over the proximal phalanx. The implant appeared to be intact. He was instructed to buddy tape the finger to help relieve stress on the radial collateral ligament and to allow swelling to subside. In March 2005, he was seen at the orthopedic clinic. It was noted that he noticed some deviation of the joint since the surgery but had no pain or disability with it. He stated that he had some pain for approximately nine months to one year following the surgery, but that it had subsided. He had no other complaints at that time. A January 2015 VA occupational therapy record noted that the Veteran had a right middle finger PIP deformity. Right hand strength was 19 pounds compared left hand strength at 24 pounds. In June 2014, the RO obtained a VA medical opinion from a Board-certified orthopedic surgeon. The examiner reviewed the claims file and indicated that the operative records described a well-done silastic PIP arthroplasty and that the X-ray was good. The examiner also stated the rehab appeared normal and well done. The examiner noted that later that year, records indicated an ulnar drift. He noted that the X-ray showed the drift and some small fragments by the joint, which was not unseen in that type of surgery. There was no dislocation of the prosthesis noted. The examiner opined that the Veteran's treatment by VA was within community standards at the time, understanding that some PIP drift can happen. There was nothing in further notes to assume he had a lasting result outside community standards of care. The report of a December 2019 VA examination indicated that the Veteran had a right middle finger deformity. The Veteran stated that the December 2003 surgeon had verbally admitted that he used the wrong size joint replacement after he complained of pain, swelling, and crookedness. He stated that his handwriting and grip strength had been impacted and caused him to drop items. On physical examination, the PIP joint had full extension to 0 degrees and flexion was limited to 80 degrees. Pain was noted with flexion but not extension. There was no gap between the pad of the thumb and fingers, and no gap between the finger and proximal transverse crease of the hand on maximal finger flexion. The examiner noted that there was a 40-degree bend to the right of the middle finger at the PIP joint. Hand grip was 4/5 on the right and 5/5 on the left. The examiner opined that the Veteran's additional right middle finger disability was at least as likely as not a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of attending VA personnel (as a result of the December 2003 surgery). He noted that the Veteran was seen in October 2003 and that he had a slight finger deformity with the finger leaning to one side about 20 to 25 degrees, and that it was now leaning 40 degrees to the right. He also noted that follow-up records dated in July 2004 and March 2005 noted a PIP joint deformity. He stated that given the comparison in leaning degrees, it appeared that the joint had become increasingly deformed since the surgery. In October 2020, the RO requested an additional VA medical opinion. The RO noted that the December 2019 VA examiner failed to provide rationale or explain how there was carelessness, negligence, etc. on the part of VA personnel. In October 2020, a VA examiner reviewed the claims file and noted the Veteran's assertion that the surgeon admitted he had used the wrong spacer was not supported by the evidence. The examiner noted that a March 2004 VA treatment record indicated that the Veteran was basically satisfied with the surgical results and that a September 2004 VA treatment record noted osteoarthritis, which was a plausible cause of the inflammation and swelling months after the surgery and was beyond the control of the provider. Therefore, the examiner opined that the claimed additional disability was less likely due to carelessness, negligence, lack of proper skill, error in judgement, or similar instance of fault on the part of VA. For similar reasons, the examiner also opined that the claimed additional disability was less likely due to an event not reasonably foreseeable. In this case, the Board finds that the weight of the evidence is against the claim. As discussed above, the Veteran maintains that he has additional right middle finger disability resulting from as December 2003 surgery and that the VA surgeon told him that he used the wrong spacer during the surgery. Initially, the Board must determine whether he has additional disability, and, if so, whether it was caused by the December 2003 surgery. There is some evidence indicating that he has an additional middle finger deformity. As noted by the December 2019 VA examiner, prior to the surgery, his finger was leaning 20 to 25 degrees to the right at the PIP joint. Following surgery, the examiner indicated that it was leaning 40 degrees. In lay terms, his finger is now more crooked than it was before the surgery. On the other hand, there does not appear to be any additional functional impairment. Prior to the surgery, his finger was crooked, and he complained of stiffness, pain, lack of mobility, and decreased grip strength. He had decreased flexion and extension and there was a 34- to one-inch gap between the fingertip and palm when in full flexion. Following surgery, he continued to have pain, stiffness, and swelling; however, in March 2005, he reported that it had resolved. During the December 2019 VA examination, he reported similar symptoms; however, he had full extension without pain and although he had limited flexion with pain, there was no gap between the fingertip and palm when in full flexion. Therefore, from a functional standpoint, it appears that there was some improvement in the mobility of the finger following the surgery. Resolving reasonable doubt in the Veteran's favor and assuming that the additional crookedness of the finger constitutes an additional disability, the Board must now determine whether the disability was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing surgical treatment. 38 U.S.C. § 1151(a). Although the Veteran reported that he was told by doctors that the wrong spacer was used, there is no evidence of that. The records indicate that the surgery was without complications, that the Veteran showed improvement, and that he was initially satisfied with the results. Later records noted additional pain, swelling, and increased crookedness in the finger, but there is nothing in the record indicating that a mistake was made during the initial surgery or that he was offered corrective surgery. Although the December 2019 VA examiner opined that it was at least as likely as not that the Veteran had additional right middle disability as the result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of attending VA personnel, he provided not rationale for that opinion. His rationale was solely focused on whether there was additional disability and not whether there was any negligence on the part of VA. Therefore, the opinion lacks probative value in that regard. On the other hand, the October 2020 VA examiner reviewed the claims file, considered the Veteran's contentions, and provided a well-reasoned explanation for his conclusion that there was no carelessness, negligence, etc., on the part of VA. The Board finds the October 2020 VA examiner's opinion more probative. Finally, the Veteran does not contend nor does the evidence show that any additional right finger disability was caused by an event not reasonably foreseeable. The Veteran was informed of the risks of surgery, which included increased pain, swelling, and additional injury to the nerves, blood vessels and tendons of the finger. He was told his finger would never be normal again, but that they could try to improve his symptoms without any guarantees. Furthermore, the October 2020 VA examiner indicated that the claimed disability was not a result of an event not reasonably foreseeable. There are no medical opinions to the contrary. The Board has also considered the lay evidence. The Veteran is competent to describe what he has personally observed or experienced; however, to the extent his reports conflict with the contemporaneous medical evidence, the Board does not find his statements credible. Furthermore, the ultimate question of etiology in this case extends beyond the immediately observable cause-and-effect relationship and is beyond the competence of lay witnesses. Accordingly, the Board finds that the preponderance of the evidence is against the claim and that entitlement to compensation pursuant to 38 U.S.C. § 1151 for an additional right middle finger disability is not warranted. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). §1151 Claims - Knees The Veteran maintains that his has additional bilateral knee disability resulting from a bilateral total knee replacement performed by VA in September 2002. In a November 2012 statement, he reported that he was told that the cartilage in his kneecaps was wearing out and that it would not be long before he needed new replacements. A June 2002 VA treatment record indicated that the Veteran had a long history of knee pain and wished to pursue arthroplasty. Range of motion of the right knee was from 10 degrees of extension to 80 degrees of flexion with pain at the endpoints. Range of motion of the left knee was from 5 degrees of extension to 120 degrees of flexion. It was noted that the had bicompartmental knee arthritis. Surgery was scheduled for a date in September 2002. A September 5, 2002 VA general medical examination report noted that the Veteran had markedly diminished range of motion in his knees and known degenerative joint disease. Range of motion of the left knee was from 5 degrees of extension to 130 degrees of flexion with obvious hypertrophic changes, positive McMurray sign, positive apprehension sign, and negative Lachman sign. Range of motion of the right knee was from 5 degrees of extension to 90 degrees of flexion. Hypertrophic changes were present in both knees. It was noted that he had severe degenerative joint disease of the bilateral knees and was scheduled for surgery. A September 9, 2002 VA operative report indicated that the Veteran underwent a bilateral total knee arthroplasty. It was noted that he had a long history of bilateral knee pain and had previously underwent several arthroscopic procedures noting degenerative changes. He had been unable to work secondary to discomfort in his knees and wished to proceed with operative intervention. He was given the risks of the procedure including, but not limited to infection, bleeding, nerve or vessel injury, blood clots, stiffness, fracture, or repeat surgery. He elected to proceed. Following the procedure, he was transferred to the post-anesthesia care unit (PACU) in stable condition. He was later transferred for rehabilitation. He reported that prior to the surgery, he was unable to walk even a block. He reported considerable pain since the surgery and did not want to undergo physical therapy until his knees healed. The surgeon visited the Veteran and explained that physical therapy was the most important part of the procedure and if he did not regain his motion at an early stage that he would possibly not regain any motion at all. He stated that so far, he was happy with the procedure but wanted to do his own type of rehabilitation. Later that month, in September 2002, it was noted that following the surgery, the Veteran was in rehab for five days and then signed out against medical advice. He stated that he was not happy with rehab and that everything went well with the surgery. He had only slight swelling in his knees and felt that he was bending them okay. He felt he did not need any more physical therapy but needed advice on how much walking he should do. An October 2002 VA treatment record indicated that Adult Protective Services assigned the Veteran a caseworker who reported that his left leg was very swollen, and he was not doing well. She requested a visiting nurse. The Veteran did not feel that he needed a skilled nursing visit. He was informed that if his incision showed increased redness, drainage, fever, increased pain and temperature in his knees, he should come to the VA emergency room. Later that month, in October 2002, an orthopedic note indicated that the Veteran was doing extremely well with no constitutional symptoms and that the incisions had healed well. His staples were taken out. He had good range of motion - 10 degrees short of full extension bilaterally and flexion to about 90 degrees without pain. There was good patellofemoral tracking. He was instructed to continue exercise and physical therapy and return in six weeks. In November 2002, he reported that he was going to the gym, walking a little bit without a cane, using a treadmill and rowing machine, and walking in the pool almost every day. Later that month, in November 2002, an orthopedic note indicated that he was doing excellent and had good range of motion from 0 to 95 degrees without pain. He had good engagement and good stability. X-rays showed well-aligned, well-fixed implants with no evidence of loosening. An April 2003 VA treatment record noted that the Veteran had undergone total knee replacements in September 2002 and now had less pain and improved ambulatory ability. A September 2003 orthopedic note indicated that the Veteran was doing well. He stated that he had some occasional tightness and pain in his right knee; however, he admitted that he had been walking 10 to 15 miles sometimes in a day and was really quite satisfied with the results. He stated that when he had discomfort and pain, he used Naproxen and that it resolved. On physical examination, it was noted that he had well-healed scars with no evidence of induration, separation, or infection. He had full extension and flexion to an excess of 120 degrees bilaterally. The knee joints were stable. X-rays revealed no loosening or evidence of hardware failure. He was advised to return to the clinic in two years for repeat evaluation. A December 2003 VA treatment record indicated that the Veteran complained of a new onset right knee pain. He stated that he had been experiencing increased swelling, stiffness, tightness, and pain in the right knee over the last couple of weeks. Physical examination noted mild to moderate effusion, minimal warmth, and no erythema. He lacked 5 degrees of full extension. Flexion was to 95 degrees. He had 1+ varus opening and appeared to be stable to varus and valgus stress. A bone scan was ordered. In February 2004, it was noted that a bone scan showed no significant abnormalities. In August 2004, it was noted that he had bilateral chondromalacia of the patella and that he would continue wearing knee braces and doing exercises. It was noted that he was doing well. A May 2009 VA treatment record noted that the Veteran had a total knee replacement in September 2002 with excellent result. A May 2011 VA orthopedic record indicated that the Veteran had bilateral knee replacements done in 2003 and had did well over the years. More recently, he stated he was having some pain and discomfort with his left knee and denied any problems with the right knee. On physical examination, he wore bilateral hinged braces. He had moderate instability of both knees to varus and valgus stresses. On the left knee, he had full flexion and extension with some lateral parapatellar tenderness. The incisions were well-healed. There were no signs of infection. X-rays demonstrated bilateral knee replacements. It was noted that his patellae appeared to be wearing out in both knees, right worse than left. The diagnosis was bilateral total knee replacements with patella femoral wear and mild instability. The surgeon stated that he thought the Veteran was developing some bilateral patella wear of the component, but in general was doing well. His symptoms were minimal, and he was well-compensated with the braces. If the condition worsened, he was advised to return and that a revision of the left knee would be considered by redoing the patella and adding a thicker polyethylene component. In June 2014, the RO obtained a VA medical opinion. The examiner reviewed the claims file, noting that he was a Board-certified orthopedic surgeon with many years of experience. He noted that the operative report described the proper indications for total knee replacements and that the Veteran gave permission willingly apparently knowing the risks and benefits of surgery versus no surgery. The examiner stated that the records described a well-done surgery and good post-operative care, noting that the Veteran signed out against medical advice and was doing well as far the last records showed. The examiner did note that a single September 20, 2002 X-ray report noted that there was some unexplained left side space widening but that it was not further taken up prior to the Veteran leaving the facility on his own. At that time, the examiner stated that the knees were performing as expected and that he was making good progress. The examiner stated with the available information, his treatment by VA was within community standards at the time he volitionally left the care of VA. He stated that the treatment rendered was without aberration from that which would be done by a similarly qualified surgeon in a like or similar situation at that point in time. The report of a December 2019 VA examination noted diagnoses of status-post bilateral total knee replacement and bilateral knee strain. The Veteran stated that he had knee weakness and some pain, restricted use, and could not stand for long periods of time. He stated that he could not walk more than one mile without pain and flare up. Range of motion of the right knee was from 0 degrees of extension to 85 degrees of flexion with pain on flexion. Left knee range of motion was from 0 degrees of extension to 90 degrees of flexion with pain on flexion. There was no evidence of recurrent subluxation or lateral instability. The examiner reviewed the claims file and opined that the Veteran's additional knee disability (knee strain) was less likely as not a result of carelessness, negligence, lack of skill, or similar incidence of fault on the part of attending VA personnel as a result of the September 2002 surgery or an event not reasonably foreseeable. The examiner noted that the Veteran was seen for knee pain following surgery, but that he was now 17 years out from surgery and it was more likely than not that the bilateral knee pains and strains were a symptom that the knee replacements had met the end of their life expectancy prior to being needed to be replaced. The examiner also noted that no deformity was noted on examinations following the surgery and that there was no additional damage to potential ligaments and tendons. Initially, the Board must determine whether the Veteran has additional disability, and, if so, whether it was caused by the September 2003 surgery. The December 2019 VA examiner indicated that he had bilateral knee strains, but that it was not caused by the total knee replacements. Rather, he indicated that it was a sign that the knee replacements were coming to an end of their life expectancy. This is also supported by the May 2011 VA orthopedic record, which noted that it appeared that his patellae were wearing out that if they worsened, the replacements would have to be revised. There is no indication that the knee strains or wearing of the patellae was caused by the surgery itself. Furthermore, there is no evidence that the knee strains or wearing of the patellae was caused by carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of VA in furnishing surgical treatment. 38 U.S.C. § 1151(a). The records indicate that the surgery was without complications, that the Veteran showed improvement, and that he was satisfied with the results. Prior to the surgery, he stated that he was unable to walk a block without pain. One year after the surgery, he stated that he was walking 10 to 15 miles at a time. While later records note some pain, patella wearing, and strain, there is nothing in the record indicating that those symptoms were a result of the surgery or that a mistake was made during the surgery. Finally, the Veteran does not contend nor does the evidence show that any additional knee disability was caused by an event not reasonably foreseeable. The Veteran was informed of the risks of surgery, which included infection, bleeding, nerve or vessel injury, blood clots, stiffness, fracture, or repeat surgery. Thus, he was told at the time that he might need repeat surgery at some point. Furthermore, the December 2019 VA examiner indicated that the claimed disability was not a result of an event not reasonably foreseeable. There are no medical opinions to the contrary. The Board has also considered the lay evidence. The Veteran is competent to describe what he has personally observed or experienced; however, to the extent his reports conflict with the contemporaneous medical evidence, the Board does not find his statements credible. Furthermore, the ultimate question of etiology in this case extends beyond the immediately observable cause-and-effect relationship and is beyond the competence of lay witnesses. Accordingly, the Board finds that the preponderance of the evidence is against the claim and that entitlement to compensation pursuant to 38 U.S.C. § 1151 for additional right and left knee disabilities is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 53 (1990). TDIU The Veteran maintains that he is unable to work due to his bilateral knee and right middle finger disabilities. He also stated that he suffers from a chronic low back condition, arthritis, an index finger condition, and an enlarged prostrate condition, which affected his ability to work. In a March 2014 statement, a friend (L.B.) stated that the Veteran's knees and finger had progressively worsened and that he was unable to work. A TDIU may be assigned when a Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In this case, the Veteran is not service connected for knee or right middle finger disabilities, and, as explained above, compensation pursuant to 38 U.S.C. § 1151, is not warranted. He is only service connected for tinea versicolor, rated at 10 percent. He does not contend nor does the evidence show that his tinea versicolor renders unable to work. Therefore, there is no basis for a TDIU, and the claim is denied. Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Mishalanie, 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.