Citation Nr: 21032629 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 16-58 400A DATE: May 27, 2021 ORDER Service connection for tinnitus is granted. Entitlement to an effective date earlier than August 19, 2016, based on clear and unmistakable error (CUE), for service connection of anterior chest scar associated with coronary artery disease status-post coronary artery bypass grafting is denied. Entitlement to a 60 percent rating for coronary artery disease is granted, effective February 9, 2016. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted, effective February 9, 2016. REMANDED Service connection for pulmonary emphysema is remanded. Entitlement to a rating in excess of 60 percent for coronary artery disease is remanded. FINDINGS OF FACT 1. The Veteran's tinnitus had its onset in service. 2. The Veteran's initial claim of service connection for his heart and chest were granted in a February 2015 rating decision and a non-compensable rating was assigned for the chest scar. This rating decision became final because he did not submit a notice of disagreement as to the scar rating. He also did not submit new and material evidence within a year of the February 2015 rating decision. The March 2016 rating decision on appeal addressed entitlement to an increased rating for coronary artery disease. In September 2016, the Veteran submitted August 2016 private treatment records indicating that he had additional chest scars and related chest scar symptoms. He filed his claim for increased rating for chest scars in March 2017. 3. The correct facts, as known at the time, were before the VA adjudicators in and the statutory and regulatory provisions extant at the time were correctly applied. 4. Throughout the appeal period, the Veteran's coronary artery disease has resulted in a workload of greater than 3 METs but less than 5 METs resulting in dyspnea and fatigue. 5. The Veteran has been unable to obtain and maintain employment throughout the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria for entitlement to an effective date earlier than March 27, 2017, based on clear and unmistakable error (CUE), for service connection of anterior chest scar associated with coronary artery disease status-post coronary artery bypass grafting have not been met. 38 U.S.C. § 5109A; 38 C.F.R. §§ 3.104, 3.105(a). 3. The criteria for a rating of at least 60 percent for coronary artery disease have been met, effective February 9, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.100, 4.104, Diagnostic Code 7017. 4. Throughout the appeal period, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from February 1970 to January 1973, including service in the Republic of Vietnam. This matter comes before the Board of Veterans' Appeals (Board) on appeal from February 2015, May 2015, March 2016, and June 2017 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). Service Connection The Veteran seeks service connection for tinnitus. Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 U.S.C. § 3.303. To establish service connection for the claimed disorder, the following criteria must be met: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran has tinnitus. See April 2015 VA examination. He reports that his tinnitus started after a tank explosion in Vietnam. See November 2016 Form 9. His military personnel records show that he was stationed in Vietnam for several months. See DD Form 214. He reports following the tank explosion, he experienced constant ringing that continued after service. The Veteran is competent to report symptom onset and challenges he experiences as a result of the ringing in his ears. Flynn v. Brown, 6 Vet. App. 500, 503 (1994). His statements are entitled to probative weight, as they are internally consistent and consistent with other evidence of record, showing that the Veteran was stationed in Vietnam. 38 U.S.C. § 1154(a). The Board acknowledges the April 2015 VA negative nexus opinion indicating the Veteran's tinnitus is not related to service. However, even though his service treatment records are silent for reports of tinnitus in service, in light of the competent and credible evidence of tinnitus since service, service connection for tinnitus is warranted. See 38 C.F.R. §§ 3.303, 3.307, 3.309; Fountain v. McDonald, 27 Vet. App. 258 (2015). Accordingly, entitlement to service connection is warranted. CUE The Veteran assert that he is entitled to an earlier effective date based on CUE for service connection of anterior chest scar associated with coronary artery disease status-post coronary artery bypass grafting. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes such error, the prior decision will be reversed or amended. 38 C.F.R. § 3.105(a). The February 2015 rating decision became final with respect to the rating assigned for the chest scar because the notice of disagreement filed by the Veteran did not express any disagreement with the rating for the scar. Notably, after March 24, 2015 regulations changed requiring that notices of disagreement (NODs) be filed on the appropriate form. See 79 Fed. Reg. 57660 (Sept. 25, 2014) (requiring standardized claims forms after March 24, 2015). Once a decision becomes final, it may only be revised by a showing of CUE. 38 C.F.R. §§ 3.104, 3.105. CUE is a very specific and rare kind of "error." It is the kind of error of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Simply to claim CUE on the basis that previous adjudication improperly weighed and evaluated the evidence can never rise to the stringent definition of CUE. Similarly, neither can broad-brush allegations of "failure to follow the regulations" or "failure to give due process," or any other general, nonspecific claim of error." Fugo v. Brown, 6. Vet. App. 40, 43-44 (1993). In addition, failure to address a specific regulatory provision involves harmless error unless the outcome would have been manifestly different. Id. at 44. CUE is established when the following conditions are met: (1) either (a) the correct facts in the record were not before the adjudicator, or (b) the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be "undebatable," not merely "a disagreement as to how the facts were weighed or evaluated[;]" and (3) the commission of the alleged error must have "manifestly changed the outcome" of the decision being attacked on the basis of CUE at the time the decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014), aff'd, 642 Fed. Appx. 982 (Fed. Cir. 2016); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). The error must be of a type that is outcome-determinative, and subsequently developed evidence may not be considered in determining whether an error existed in the prior decision. See Porter v. Brown, 5 Vet. App. 233, 235-36 (1993); Glover v. West, 185 F.3d 1328 (Fed. Cir. 1999). A manifest change in outcome of an adjudication means that, absent the alleged CUE, the benefit sought would have been granted at the outset. King v. Shinseki, 26 Vet. App. 433, 441 (2014). The standard is not whether it is reasonable to conclude that the outcome would have been different. Id. at 442. As a threshold matter, the Board finds the argument advanced by the Veteran allege CUE with the requisite specificity. See Simmons v. Principi, 17 Vet. App. 104 (2003). The Board will therefore adjudicate the merits of his claims. Veteran's Contentions The Veteran assert that he is entitled to an earlier effective date based on CUE for service connection of anterior chest scar associated with coronary artery disease status-post coronary artery bypass grafting. He contends that the effective date should be August 26, 2014, because he filed a request for reconsideration for a higher rating for his heart condition. He highlights that the records he submitted along with his request for reconsideration contain new medical evidence discussing the scar. He asserts that this should have been used by the RO as new evidence for the Veteran's chest scar and was submitted within a year from the prior rating decision. Analysis The Board finds that revision based on CUE is not warranted. In a February 2015 rating decision, the RO granted service connection for coronary artery disease and assigned a 10 percent rating. Service connection for chest and lower extremity surgical scars was also granted, and a noncompensable rating was assigned. As noted above, this rating decision became final as to the scar rating because the Veteran did not file a NOD on the prescribed form as required after March 24, 2015. In February 2016, he filed a NOD as to emphysema. In February 2016, he also submitted private treatment records for his heart, but these records also do not mention a chest scar. In March 2016, the RO issued a rating decision as to increased rating for the Veteran's coronary artery disease, listing the date of claim as the date of receipt of the February 2016 private treatment records. The Board notes that in April 2016, the Veteran filed a NOD for his heart condition. In April 2016, the Veteran filed an application for benefits for a psychiatric, right clavicle, and right shoulder condition. On August 17, 2016, the RO acknowledged this claim for benefits. On September 15, 2016, the RO received private treatment records dated August 19, 2016 that highlight the existence of complaints regarding the Veteran's chest scar. These complaints highlight the scar was itchy, painful, rough, and moderate in severity. On March 27, 2017, the Veteran filed a formal claim of service connection regarding the chest scar. See March 2017 VA Form 21-526EZ. The RO conducted a VA examination and subsequently granted service connection for additional scars of the anterior and non-linear chest, effective March 2017. See May 2017 rating decision. In May 2018, the RO found CUE in its previous decision and granted an earlier effective date of August 19, 2016 for the anterior chest scar. See May 2018 rating decision. The RO also assigned an earlier effective date for the non-linear chest scar, effective June 24, 2014. Id. The Board notes that based on these facts, the Veteran asserts that the RO should have assigned the August 26, 2014 effective date for the anterior chest scar because the August 2016 treatment records were received within a year of the March 2016 rating decision and the February 2015 rating decision was not final because he filed a NOD. However, the February 2016 NOD specifically expresses disagreement with the RO's decision to deny service connection for emphysema. The April 2016 NOD for the coronary artery disease was not received within a year of the February 2015 rating decision and specifically listed the March 2016 rating decision that denied a rating in excess of 10 percent for coronary artery disease. During August 2016, there does not appear to be any formal claim or challenge to the Veteran's scar rating. As a result, the February 2015 rating decision became final with respect to the scar rating. The March 2016 rating decision is currently on appeal but only with respect to the rating for the heart condition, not the scar rating. Further, even though the RO assigned an August 19, 2016 effective date for the anterior chest scar, the August 2016 private treatment records cannot constitute an informal claim for benefits. This is because during this time period, a claim for benefits must be filed on the prescribed form. See 38 C.F.R. § 3.1(p). These records received by VA in September 2016 also cannot constitute new and material evidence. See 38 C.F.R. § 3.156(b). This is because service connection or increased rating for an anterior chest scar was not previously before the RO at the time of receipt of the August 2016 private treatment records. The Board notes that the RO granted an earlier effective date for the non-linear chest scar, likely in part because of the receipt of the August 2016 private treatment records showing that the scars were symptomatic. See 38 C.F.R. § 3.156(b). Still, it is unclear to the Board why the RO granted an earlier effective date back to 2014 when the February 2015 rating decision became final with respect to the non-linear scar rating and effective date rules indicate that the effective date is either the date entitlement arose or the date of the claim for benefits, whichever is later. Nonetheless, here, it appears the RO, after applying the benefit of the doubt, assigned the earliest possible effective date in its grant of service connection for the anterior and non-linear chest scar. The RO assigned an effective date of August 19, 2016, the date of the private treatment record showing the existence and severity of the anterior chest scar. Under the law, the effective date for a grant of service connection is the date of receipt of the application for benefits or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Prior to March 24, 2015, for VA compensation purposes, a "claim" is defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). The essential elements for any claim, whether formal or informal, are (1) an intent to apply for benefits, (2) an identification of the benefits sought, and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). VA must look to all communications from a claimant that may be interpreted as an application or claim for benefits and is required to identify and act on informal claims for benefits. See Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The August 19, 2016 private treatment records could not constitute an informal claim of service connection for the scars because they were received after March 24, 2015. The formal claim for an increased rating of the scars was filed on September 27, 2017. The August 2016 private treatment records highlighting the Veteran's scar and scar symptoms was received by VA on September 15, 2016. Here, the RO assigned an effective date earlier than when the Veteran filed his claim for benefits, August 19, 2016, the date medical evidence shows existence of and symptoms related to the anterior chest scar. Thus, under the law, there is no basis, including based on CUE, to assign an earlier effective date for service connection of the anterior and non-linear chest scar. Increased Rating The Veteran seeks an increased rating for his coronary artery disease. The appeal period before the Board, regarding his heart disability, begins on February 9, 2016, the date the Veteran filed his formal claim of increased rating. From February 9, 2016 to October 24, 2019, the Veteran received a 10 percent for his coronary artery disease under Diagnostic Code 7017. As of October 25, 2019, his heart disability is rated 60 percent disabling. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may also be assigned for separate periods of time based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2007). Under Diagnostic Code 7017 (for coronary bypass surgery), a 100 percent rating is warranted for the three months following hospital admission for surgery; thereafter, chronic congestive heart failure, or; workload of 3 metabolic equivalents (METs) or less resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent warrants a 100 percent rating. 38 C.F.R. § 4.104. A 60 percent rating is warranted for more than one episode of acute congestive heart failure in the last year, or; workload of more than 3 but less than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction (LVEF) of more than 30 percent but less than 50 percent. A 30 percent rating is warranted for workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A 10 percent ratting is warranted for workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication required for control. 38 C.F.R. § 4.104. Here, the Board finds that at least a 60 percent rating is warranted throughout the appeal period. The Veteran takes continuous medication for his disability. He has constant cardiac arrhythmia and atrial fibrillation. The February and October 2016 VA examinations found that the Veteran had LVEF of 55 percent and 7-10 METs functioning. However, these VA examinations concluded that the Veteran never had a myocardial infraction, but evidence shows that he had multiple myocardial infractions. Therefore, the Board finds these examinations to be of limited, if any, probative value as they appear to be based on an inaccurate, and at the very least incomplete, factual premise. See Reonal v. Brown, 5 Vet. App. 548 (1993). The Veteran was afforded another VA examination in July 2020. The examination documented the Veteran's medical history and noted that his LVEF was 65 percent. The VA examiner noted that exercise testing was not required as part of the Veteran's current treatment plan and performing the test was not without significant risk to the Veteran. The interview based METs test revealed that the Veteran had 3-5 level METs functioning and experienced dyspnea, fatigue, and angina. Throughout the appeal period, the Veteran reports difficulty with dyspnea and fatigue and that his heart disability resulted in difficulty functioning. His report of symptoms was eventually confirmed at the first adequate and probative VA examination of record in July 2020. As a result, the Board finds that a rating of at least 60 percent is warranted throughout the appeal period. Entitlement to a rating in excess of 60 percent is discussed in the REMAND portion of this decision. TDIU Entitlement to a TDIU has been raised by the record. Throughout the appeal period, there is evidence asserting that the Veteran's service-connected disabilities result in his inability to obtain and maintain employment. Rice v. Shinseki, 22 Vet. App. 447 (2009). A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his 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 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. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the following: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Pursuant to this decision, the Veteran meets the schedular requirements for TDIU for the entire appeal period, beginning on February 9, 2016, the date he filed a claim of increased rating for his heart condition. The Veteran attended four years of high school. See October 2019 VA Form 21-8940. His work history consists of work as a metal sheet worker. Id. After a review of the evidence of record, the Board finds, resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), that the evidence supports the conclusion that the Veteran's service-connected disabilities prevented him from securing and following substantially gainful throughout the appeal period. He reports that he last worked full time in June 2007 but did not become too disabled to work until June 22, 2014. See October 2019 VA Form 21-8940. He filed his claim of increased rating for his heart condition on February 9, 2016, thus that is the date the appeal period begins. In reaching this determination, the Board notes that during the course of this appeal the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Based on the physical limitations by the Veteran's service-connected disabilities, the Veteran is unable to perform jobs consistent with his manual labor occupational history. He is limited in his ability to perform work requiring lifting, using his upper body strength, and walking. He has fatigue and lack of stamina due to his heart disability. See July 2020 VA examinations. His family and friends also submitted lay statement detailing his difficulty with work and physical activity. His wife reports he has muscle weakness, is unable to bathe independently, unable to walk for extended periods of time or perform other household chores, like mowing the lawn, grocery shopping, and meal preparation. See August 2016 lay statement. His service-connected depression further limits his ability to function in a work like setting. His depression results in depressed mood, anxiety, near continuous panic/depression, chronic sleep impairment, disturbances in mood and motivation, and difficulty establishing and maintaining effective relationships, including those in a work-like setting. See September 2019 VA mental disorders examination. Based on his specific occupational history, the Veteran was unable to obtain and maintain employment throughout the appeal period. Thus, entitlement to TDIU is warranted. REASONS FOR REMAND Coronary artery disease In November 2020 correspondence, the Veteran and his representative assert that the Veteran's disability is worse than depicted by the latest VA examination. As a result, remand is warranted for a new VA examination to determine the current nature and severity of the Veteran's heart disability and if a rating in excess of 60 percent is warranted. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Pulmonary Emphysema The Veteran seeks service connection for pulmonary emphysema. The Veteran provided a number of in-service events he believes resulted in his development of pulmonary emphysemas. See September 2016 correspondence. More specifically, he notes that he was exposed to solvents, diesel fuel, exhaust fumes, contaminated water at Camp Lejeune, herbicides, asbestos from tanks, and explosives. He also asserts that his pulmonary emphysema is due to his heart surgery for his service-connected coronary artery disease. To date, there is not a VA medical opinion adequately addressing the different exposures the Veteran highlights as resulting in his pulmonary emphysema. As a result, remand is warranted for a new VA examination and medical opinion. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the current nature and severity of his coronary artery disease. 3. Schedule a VA examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) to determine the onset and etiology of the Veteran's pulmonary emphysema. The VA examiner should issue a medical opinion indicating whether the Veteran's pulmonary emphysema had its onset in or is otherwise related to service. The VA examiner should address the Veteran's statements regarding in-service exposure to exposed to solvents, diesel fuel, exhaust fumes, contaminated water at Camp Lejeune, conceded herbicide exposure in Vietnam, asbestos from tanks, and explosives. See September 2016 Veteran statement. The VA examiner should also opine whether it is at least as likely as not that the Veteran's pulmonary emphysema is caused or aggravated by the Veteran's service-connected heart disability. The examiner must provide a rationale for all opinions expressed. Failure to provide a rationale will result in the opinion being found to be inadequate. If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. Please note that it is not necessary that a service-connected disability be diagnosed or even service-connected at the time the pulmonary emphysema is incurred to establish service connection, and reliance on this fact will render any secondary opinion inadequate. Jarrette A. Marley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ijitimehin, Kemi D. 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.