Citation Nr: 21041235 Decision Date: 07/08/21 Archive Date: 07/08/21 DOCKET NO. 18-46 483 DATE: July 8, 2021 ORDER Service connection for bilateral hearing loss disability is granted. REMANDED Service connection for a low back disorder with radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran has current bilateral ear hearing loss disability for VA compensation purposes. 2. The Veteran's bilateral hearing loss disability is the result of hazardous noise exposure from F-18 aircraft engines, the flight deck, and from aircraft carriers he served on as part of his military occupational specialty (MOS) as an aviation technician during his period of active duty in the U.S. Navy from 1988 to 1994. 3. The Veteran is already service connected for tinnitus due to the same in-service hazardous noise exposure. CONCLUSION OF LAW Resolving all reasonable doubt in his favor, the criteria for service connection for bilateral hearing loss disability have been met. 38 U.S.C. §§ 1101, 1110, 1112, 1113, 1154(a), 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.385. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active duty service in the U.S. Navy from April 1988 to December 1994. He served in the Southwest Asia theater of operations in the early 1990s. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from an October 2017 rating decision issued by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). This appeal has been advanced on the Board's docket. 38 U.S.C. § 7107(b) (effective February 19, 2019); 38 C.F.R. § 20.800(c) (2020). In October 2020, the Veteran testified at a Board virtual tele-hearing before the undersigned. A transcript of that hearing is associated with the claims file. Finally, throughout 2020 and 2021, the Veteran's attorney submitted additional VA and private medical evidence, subsequent to certification of the Veteran's appeal in October 2018. On this issue, under the provisions of 38 U.S.C. § 7105(e) (2018) for Legacy appeals, a waiver of AOJ consideration of new, pertinent evidence submitted by the Veteran or his representative after the appeal has been transferred to the Board is no longer required. In other words, under this statute, a waiver of AOJ consideration is presumed, absent a written request from the Veteran that the AOJ review the new evidence first. While the Veterans Appeals Improvement and Modernization Act of 2017 (AMA) deleted the provisions of 38 U.S.C. § 7105(e) (2018), the Public Law specified that Legacy appeals (such as the current appeal) were to be treated differently than appeals under the AMA. See Pub. L. 115-55 § 2(x)(1). In any event, at the October 2020 virtual tele-hearing, the Veteran's attorney explicitly waived his right to have the AOJ initially consider any additional evidence submitted after certification. Moreover, at the October 2020 virtual tele-hearing, the undersigned gave the Veteran 90 additional days to submit any additional evidence. See 38 C.F.R. § 20.605 (2020) (formerly 38 C.F.R. § 20.709 (2018)). Therefore, the Board accepts this additional VA and private medical evidence for inclusion in the record and consideration by the Board at this time, with or without a waiver. See 38 C.F.R. §§ 20.605, 20.901, 20.1305(c) (2020). Finally, in the October 2017 rating decision on appeal (with a notice letter provided by the AOJ), the AOJ denied the separate issue of service connection for a left knee disorder. However, a review of the record shows that the Veteran has not yet submitted a Notice of Disagreement (NOD) or Substantive Appeal (e.g., VA Form 9 or equivalent statement) for this particular issue. See 38 U.S.C. § 7105(a); 38 C.F.R. §§ 19.20, 19.21, 19.22, 19.51, 19.52 (2020). Thus, the issue of service connection for a left knee disorder is not on appeal before the Board. Service Connection for Bilateral Hearing Loss The Veteran has contended that he had hazardous noise exposure during his service in the U.S. Navy from 1988 to 1994 from working on the noisy flight deck of two aircraft carriers. This was part of his duties of his military occupational specialty (MOS) as an aviation electrician / F-18 systems organization maintenance technician. His DD Form 214 and service personnel records (SPRs) confirm that he served in this capacity. He has maintained that he experienced the hazardous noise exposure on a daily basis from the engines of jet aircraft roaring upon take-off and landing on the flight line. He said the hearing protection was not as effective on the extremely noisy flight line of an aircraft carrier. He also banged his head when he sustained an electric shock during active duty, with his left ear causing problems after the resulting head injury. He has also asserted that he noticed occasional symptoms of hearing loss during active duty, gradually worsening over the years. Post-service, he testified that he first sought treatment for his hearing loss within one year of separation from active duty. Post-service, as a civilian, he has denied any work-related or recreational noise exposure from 1994 to the present. See June 2017 Application for Compensation (VA Form 21-526EZ); August 2017 Report of General Information (VA Form 27-0820); November 2017 NOD (VA Form 21-0958); June 2018 Veteran statement; September 2018 VA Form 9; and October 2020 virtual hearing testimony. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) the existence of a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the disease or injury incurred or aggravated during service the "nexus" requirement. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). But according to VA standards, impaired hearing will only be considered a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of these frequencies are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. In the present case, the Veteran's sensorineural hearing loss (an "organic disease of the nervous system") is considered by VA to be a "chronic disease" listed under 38 C.F.R. § 3.309(a); therefore, 38 C.F.R. § 3.303(b) applies. Walker v. Shinseki, 708 F.3d 1331, 1338-39 (Fed. Cir. 2013). Under 38 C.F.R. § 3.303(b), where the evidence shows an enumerated "chronic disease" in service (or within the presumptive period under § 3.307), or "continuity of symptoms" of such a disease after service, the disease shall be presumed to have been incurred in service. Walker, 708 F.3d 1335-1337. Service connection for certain enumerated diseases, such as sensorineural hearing loss (organic disease of the nervous system), may be also be established on a presumptive basis by showing that it manifested itself to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). VA is to give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). Thus, there is no categorical rule that medical evidence is required when the determinative issue is either medical etiology or a medical nexus. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The Board should make explicit findings regarding the competency and, if necessary, the credibility of the lay evidence of record. Miller v Wilkie, 32 Vet. App. 249, 257-262 (2020). Lay testimony is competent to describe the presence of readily observable features or symptoms of injury or illness that are not medical in nature, such as varicose veins, tinnitus, and flat feet. See 38 C.F.R. § 3.159(a)(2); Barr v. Nicholson, 21 Vet. App. 303, 307-310 (2007). The Federal Circuit has also clarified that lay evidence can be competent for the medical diagnosis or etiology of a condition if: (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). And if the disability is of the type for which lay evidence is competent, the Board must weigh the probative value of that lay evidence against other evidence of record in making its determination regarding the award of service connection. Buchanan v. Nicholson, 451 F.3d 1331, 1334-37 (Fed. Cir. 2006). In determining whether service connection is warranted, the Board shall consider the benefit-of-the-doubt doctrine. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1991). At the outset, the AOJ in an October 2017 rating decision already granted the Veteran service connection for tinnitus. This award was based on the same in-service hazardous noise exposure discussed above. Upon review of the evidence of record, the Board grants the appeal for service connection for bilateral hearing loss disability. The award of service connection is based on the following assessments: First, there is clear proof of a current disability for bilateral hearing loss. See 38 U.S.C. § 1110; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). In fact, in Palczewski v. Nicholson, 21 Vet. App. 174, 178-80 (2007), the Court specifically upheld the validity of 38 C.F.R. § 3.385 to define hearing loss for VA compensation purposes. Specifically, a November 2020 private audiology evaluation from Dr. M.W., Au.D., revealed profound to severe bilateral sensorineural hearing loss disability according to the clear, established requirements of 38 C.F.R. § 3.385. This was established by way of pure tone thresholds of 40 decibels or greater at various frequencies in the both ears and a speech discrimination score of less than 94 percent in the right ear. The Board acknowledges that this private audiology evaluation was provided in graphic representations without interpretation as to the exact puretone thresholds found. However, it is apparent from a close review of the November 2020 private audiogram that pure tone threshold results are 40 dB or higher at all frequencies. See Kelly v. Brown, 7 Vet. App. 471 (1995) (the Board should not discount audiograms just because they are in graphical form). Thus, the existence of a current disability for VA purposes is established for bilateral ear hearing loss. Second, as to an in-service injury, the Department of Defense's Duty MOS Noise Exposure Listing indicates that the Veteran's in-service MOS as aviation electrician / aviation technician in the Navy involved a "high" probability of noise exposure during service. This would include jet aircraft engine noise on the flight line of aircraft carriers. On this basis, combined with the Veteran's reports of in-service exposure and the prior finding that the Veteran had in-service noise exposure, there is a qualifying event, injury, or disease that had its onset during the Veteran's service. Therefore, hazardous noise exposure during his period of active duty from 1988 to 1994 is consistent with the circumstances of the Veteran's duties in the Navy. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a). Third, as to the second requirement of in-service incurrence, service treatment records (STRs) dated from 1988 to 1994 during the Veteran's service in the Navy are negative for any complaint, treatment, or diagnosis of bilateral hearing loss disability under § 3.385. All of his in-service audiograms from 1988 to 1994 fail to demonstrate any bilateral hearing loss disability under § 3.385. Moreover, at his December 1994 STR report of medical history upon separation, the Veteran denied any history of hearing loss symptoms or auditory symptoms. However, a May 1990 STR annual audiogram and November 1992 STR annual audiogram both documented a significant threshold shift (+15dB) for the right ear at the frequency of 3000 Hertz. This threshold shift did not meet the strict criteria for hearing loss disability by the standards of 38 C.F.R. § 3.385. But confirmation of significant threshold shifts during active duty match the Veteran's lay assertion of experiencing occasional diminished hearing during active duty. Moreover, during active duty the Veteran signed a November 1992 STR "notice of significant threshold shift." This document advised that "[t]he results of the hearing test provided to you as part of the Navy Hearing Conservation Program indicate that you may have suffered a deterioration in your hearing sensitivity. This condition is referred to as a Significant Threshold Shift (STS)." The Veteran was provided with and instructed to wear "properly fitted hearing protection devices." In short, the Veteran's lay assertion that the onset of his diminished hearing first occurred during active service is credible and supported various STRs. Barr, 21 Vet. App. at 308 (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). In any event, the Board emphasizes that to establish service connection, it is not required that a hearing loss disability by the standards of 38 C.F.R. § 3.385 be demonstrated during service, although a hearing loss disability by the standards of 38 C.F.R. § 3.385 must be currently present, and service connection is possible if such current hearing loss disability can be adequately linked to service. Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). That is, a claimant may establish direct service connection for a hearing disability initially manifest several years after separation from service on the basis of evidence showing that the current hearing loss is causally related to injury or disease suffered in service. Hensley v. Brown, 5 Vet. App. 155, 164 (1993); see also 38 U.S.C. § 1113(b); 38 C.F.R. § 3.303(d). Therefore, the lack of evidence of bilateral hearing loss disability per § 3.385 during active service or within one year of service is not fatal to the Veteran's claim; rather, it is merely one factor to be considered. Fourth, post-service, it is significant to the Board's present adjudication of bilateral hearing loss that the AOJ in the October 2017 rating decision on appeal already granted the Veteran service connection for tinnitus. This award was based on the same confirmed in-service hazardous noise exposure for the Veteran as an aviation technician on the flight line in the Navy from 1988 to 1994. Fifth, with regard to a nexus, there is probative medical evidence of record establishing a link between the Veteran's current bilateral hearing loss disability and his confirmed hazardous noise exposure during his period of active service in the Navy from 1988 to 1994. Holton, 557 F.3d at 1366. See also 38 C.F.R. § 3.303(a), (d). In particular, the Board has reviewed the findings of a November 2020 private audiology evaluation from Dr. M.W., Au.D. This private audiologist noted both the Veteran's history of "a significant amount of noise" during his service in the Navy (for 6 years) and his lack of post-service noise exposure. After conducting audiology testing for puretone thresholds and word recognition, the November 2020 private audiologist opined it is "at least as likely as not" that the Veteran's current bilateral hearing loss is caused by his in-service noise exposure and a head injury during an electrocution incident (a December 1994 STR report of medical history at separation and other in-service STRs verify the occurrence of this head injury). The private audiologist reasoned that the loud noise levels of F-18 aircraft, the flight deck, and the aircraft carrier itself are known to cause cochlear outer hair cell damage which can result in hearing loss and tinnitus. The configuration of the audiogram for the right ear, in particular, showed signs of noise damage. Thus, a nexus to service was established. Therefore, the requirement of a nexus is met. Sixth, and finally, the Board is cognizant that an earlier September 2017 VA audiology examiner proffered a "speculative" medical opinion on the issue of the etiology of the Veteran's bilateral hearing loss. This was because the audiology testing results and thresholds were "not consistent" with the Veteran's communication skills, meaning the test results were unreliable at that time. The Board can rely on an examiner's conclusion that an etiology opinion would be speculative, as long as the examiner explains the basis for such an opinion. Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). An equivocal or speculative medical opinion may still be competent and cannot be considered "non-evidence." Hogan v. Peake, 544 F.3d 1295 (Fed. Cir. 2008). But an etiological opinion should be viewed in its full context and not characterized solely by the medical professional's choice of words. See Perman v. Brown, 5 Vet. App. 237, 241 (1993); Lee v. Brown, 10 Vet. App. 336, 338 (1997). The Court has pointed out that an absolutely accurate determination of etiology is not a condition precedent to granting service connection, nor is definite etiology or obvious etiology. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In summary, despite the existence of this speculative VA medical opinion, the private audiology evaluation and opinion sufficiently demonstrates a nexus between current bilateral hearing loss and confirmed hazardous noise exposure during the Veteran's service in the Navy. On that point, the VA benefits system does not favor the opinion of a VA examiner over a private examiner, or vice versa. See 38 U.S.C. § 5125; White v. Principi, 243 F.3d 1378, 1381 (Fed. Cir. 2001) (declining to adopt the treating physician rule for adjudicating VA benefits). Accordingly, resolving doubt in the Veteran's favor, service connection for bilateral hearing loss disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. (When implementing this grant, the AOJ may schedule the Veteran for additional VA audiology testing, if necessary, in order to accurately rate the service-connected hearing loss disability. The Veteran is strongly advised to cooperate with the VA audiology examiner. Previously, the September 2017 VA audiology examiner determined that the audiology testing results and thresholds were "not consistent" with the Veteran's communication skills, meaning the test results were not valid for rating purposes at that time). REASONS FOR REMAND Service connection for a low back disorder with radiculopathy is REMANDED. First, the Veteran should be scheduled for a VA Gulf War examination to determine the etiology of his low back problems. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006); see also 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). Previously, no VA examination for the low back has been scheduled for the Veteran. Since the Veteran served in the Persian Gulf, the issue is raised as to whether any of his joint symptoms from his low back are due to a chronic disability pattern resulting from an undiagnosed illness or from a diagnosable but medically unexplained multi-symptom illness (MUCMI) without a conclusive etiology or pathophysiology. See 38 U.S.C. § 1117; 38 C.F.R. § 3.317(a)(2)(i), (ii). In this regard, the VA examiner should address whether either the etiology or the pathophysiology of the low back disorder is inconclusive or whether both the etiology and the pathology of the low back disorder are partly understood. See Stewart v. Wilkie, 30 Vet. App. 383, 390 (2018). In fact, the Veteran has already submitted a March 2020 private medical opinion from Dr. T.J.S., MD., a family medicine doctor. This private physician opined that the Veteran's low back disorder is an "undiagnosed illness" for purposes of the Gulf War presumption, with arthritis of the low back subsequently superimposed upon the undiagnosed illness. Also, a medical opinion is needed to address whether the Veteran's current low back arthritis developed over time due to heavy lifting and straining his low back into tight spaces due to his military occupational specialty (MOS) as an aviation technician. Second, as the appeal is already being remanded for further development (as explained above), the Board sees the Veteran's VA treatment records on file for the Atlanta, Georgia VA healthcare system date to June 2017. The Veteran has also submitted incomplete VA treatment records dated in 2018 and 2019. In addition, most recently, the AOJ secured VA treatment records dated in June 2021 documenting treatment for neuropathy in the lower extremities and a mention of "occasional" low back pain. However, any additional VA treatment records dated from June 2017 to the present are within VA's constructive possession and are considered potentially relevant to low back disorder issue on appeal. Therefore, a remand is required to allow VA to obtain all the Veteran's complete VA treatment records from the VA healthcare system in Atlanta, Georgia, dated from June 2017 to the present. Third, at the October 2020 virtual hearing, the Veteran testified he continues to be treated for his low back pain at a private provider Kaiser Permanente. The most recent private treatment records from Kaiser Permanente in the claims file are dated up until May 2019. Therefore, the Veteran potentially has identified relevant outstanding private treatment records for his low back dated after May 2019. A remand is required to allow VA to obtain medical authorization from the Veteran and request any such private records, if they exist. This matter is REMANDED for the following action: 1. Obtain the Veteran's complete VA treatment records from the VA healthcare system in Atlanta, Georgia, dated from June 2017 to the present and associate them with the claims file. 2. Ask the Veteran to complete a VA Form 21-4142 for any outstanding private treatment records pertaining to the low back from Kaiser Permanente, dated from May 2019 to the present. Make two requests for any authorized records from Kaiser Permanente unless it is clear after the first request that a second request would be futile. Finally, the Veteran is also asked to provide any of the above private treatment records himself, if he has them in his possession. 3. After completion of steps 1 and 2, schedule the Veteran for a VA Gulf War examination (Disability Benefits Questionnaire - DBQ) by an appropriate clinician to determine the etiology of the Veteran's current low back problems. The VA examiner must review the claims file. The Veteran must be interviewed. Any and all studies, tests, and evaluations deemed necessary by the VA examiner should be performed. The VA examiner must address the Veteran's relevant lay assertions, and if necessary, address whether the Veteran's lay assertions are consistent or inconsistent with his medical history and clinical data. Finally, the VA examiner must provide a clear rationale for the medical opinion. Alternatively, in light of the Covid-19 pandemic, the VA examiner can schedule a telehealth interview, review of the record, etc., if an in-person examination is not feasible for this Veteran. THE VA EXAMINER MUST RESPOND TO THE FOLLOWING INQUIRIES: (a.) The VA examiner should opine whether the Veteran's low back disorder is (1) an undiagnosed illness, (2) a diagnosable but medically unexplained chronic multisymptom illness (MUCMI) of unknown etiology OR pathophysiology, (3) a diagnosable chronic multisymptom illness with a partially explained etiology AND pathophysiology, or (4) a disease with a clear and specific etiology AND diagnosis AND pathophysiology. (b.) For any low back disorder that the VA examiner determines is NOT an undiagnosed illness or a MUCMI, the VA examiner should state whether it is at least as likely as not (i.e., an approximate balance) that this low back disorder is causally or etiologically related to the Veteran's service in the Navy from 1988 to 1994 specifically, due to heavy lifting and straining his low back into tight spaces due to his MOS as an aviation technician. In answering this particular question, the VA examiner should explain whether the Veteran's credible report that his MOS duties involving heavy lifting of 40-pound cockpit computers and fitting his body inverted into tight spaces in jet airplanes caused low back arthritis to develop over time post-service. (c.) For any low back disorder that the VA examiner determines is NOT an undiagnosed illness or a MUCMI, the VA examiner should state whether it is at least as likely as not (i.e., 50 percent or more probable) that this low back disorder is causally or etiologically related to the Veteran's service in the Navy from 1988 to 1994 specifically, due to a 1990 in-service head injury noted in his service treatment records (STRs), when he sustained an electric shock and fell down, thereby striking his head. See also lay description contained in October 2020 virtual hearing transcript. (d.) The response to the above Persian Gulf questions should include a discussion of both the pathophysiology and etiology of the Veteran's low back disability. Pathophysiology is the physiology of abnormal state, specifically - the functional changes that accompany a particular syndrome or disease. That is, pathophysiology is the actual biochemical processes that occur in the body as part of a specific disease. The VA examiner should indicate whether either the etiology or the pathophysiology of the condition is inconclusive / unknown, based on consideration of the Veteran's individual circumstances, in order to demonstrate the existence of a MUCMI. (e.) In providing the requested opinions above, the VA examiner should consider the Veteran's lay description of his in-service low back injuries and symptoms as well as his lay description of his post-service low back symptoms. It should be noted if there is any medical reason to accept or reject the proposition that the Veteran's reported injuries and symptoms in service and thereafter represented the onset of his current low back disability. Stated another way, do the Veteran's lay reports about his in-service and continuing post-service low back symptoms align with how the currently diagnosed low back disability is known to develop, or are the Veteran's lay reports generally inconsistent with medical knowledge or are they implausible? (f.) In rendering the above opinions, the VA examiner is advised of the following: Service treatment records (STRs) dated from 1988 to 1994 are negative for any complaint, treatment, or diagnosis of a low back disorder. The Veteran has advised that his in-service low back symptoms were "minor and intermittent" such that he did not report them to Navy medical examiners at that time. In a December 1994 STR report of medical history at separation, the Veteran reported a head injury back in 1990 when he fell after sustaining an electric shock. This resulted in loss of consciousness, overnight observation, and mild dizziness, but "no sequelae." Post-service, the Veteran has indicated that he first received treatment at UF Health Shands Hospital for his low back in 1997. However, this private provider indicated that it could not locate any medical records for this Veteran. Post-service, several VA treatment records documented the Veteran's reported history of his low back pain beginning during active duty sometime between from 1988 to 1994, as a result of his rigorous MOS duties as aviation technician. See e.g., August 2014 VA primary care attending initial evaluation note; January 2016 VA primary care initial evaluation note; March 2019 VA treatment record; April 2019 VA psychology note. Post-service, a March 2020 private medical opinion from Dr. T.J.S., MD., a family medicine doctor, assessed that the Veteran's low back disorder is an "undiagnosed illness" for purposes of the Gulf War presumption, with arthritis of the low back subsequently superimposed upon the undiagnosed illness. Post-service, at the October 2020 virtual hearing, the Veteran testified that he experiences "medically unexplained" signs and symptoms due to his low back, including fatigue and headaches. Post-service, in a June 2021 VA neurology consult, the Veteran was treated for peripheral neuropathy in the lower extremities, with a mention of "occasional" pain in the low back and mid-back. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.S. Rubin, 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.