Citation Nr: 21041402 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 18-43 693 DATE: July 9, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for a back injury from June 6, 2013 to July 19, 2020 is denied. Entitlement to a disability rating in excess of 20 percent for a back injury on and after July 20, 2020 is denied. REMANDED Service connection for a heart disability is remanded. Service connection for a respiratory disability is remanded. Service connection for obstructive sleep apnea is remanded. FINDINGS OF FACT 1. From June 6, 2013 to July 19, 2020, the Veteran's back injury did not manifest as limitation of forward flexion to 60 degrees or less, a combined range of thoracolumbar motion of 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait or spinal contour, ankylosis, or intervertebral disc syndrome (IVDS). 2. On and after July 20, 2020, the Veteran's back injury did not manifest as limitation of forward flexion to 30 degrees or less, ankylosis, or IVDS. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a back injury have not been met from June 6, 2013 to July 19, 2020. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.71a, Diagnostic Codes 5010-5237 (2020). 2. The criteria for a disability rating in excess of 20 percent for a back injury have not been met on and after July 20, 2020. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.21, 4.71a, Diagnostic Codes 5010-5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from February 1984 to April 1999 and from June 2002 to September 2002, with additional service in the National Guard. The Veteran testified before the undersigned Veterans Law Judge during an August 2020 hearing and a transcript is of record. These matters are on appeal from November 2014 rating decisions. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist with regard to the claim being decided below. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Back Injury The Veteran contends that his back injury warrants ratings in excess of those currently in effect. It is currently rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5010-5237 with a 10 percent rating from June 6, 2013 to July 19, 2020 and a 20 percent rating on and after July 20, 2020. The full period of service connection is on appeal. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate Diagnostic Codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2020). Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. "Staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). 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. In determining the appropriate rating for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Factors of joint disability include increased or limited motion, weakened movement, excess fatigability, incoordination, and painful movement, including during flare-ups and after repeated use. DeLuca v. Brown, 8 Vet. App. 202, 206-08 (1995); 38 C.F.R. § 4.45. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40. Additionally, "pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Pain in a particular joint may result in functional loss, but only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, speed, coordination, or endurance. Id.; 38 C.F.R. § 4.40. Under 38 C.F.R. § 4.59, painful joints are entitled to at least the minimum compensable rating for the joint. In this case, at least the minimum compensable rating has been in effect for this disability during the entire appeal period. Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that are more favorable to the Veteran will be applied. Diagnostic Code 5010 pertains to traumatic arthritis. Prior to the amendment, Diagnostic Code 5010 provided for rating as degenerative arthritis under Diagnostic Code 5003. Diagnostic Code 5003 provides, when limitation of motion is noncompensable under the appropriate Diagnostic Code, for a 10 percent rating for each major joint or group of minor joints affected by limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. For rating purposes, the lumbar spine is considered a group of minor joints. 38 C.F.R. § 4.45. As the Veteran is already in receipt of 10 percent and 20 percent ratings based on limitation of motion throughout the period on appeal, an increased rating under Diagnostic Code 5003 is not applicable. Further discussion of Diagnostic Code 5010 under the prior criteria is not warranted. After the amendment, Diagnostic Code 5010 provides for rating as limitation of motion, dislocation, or other specified instability under the affected joint. Diagnostic Code 5237 pertains to lumbosacral strain and, whether under the prior or amended criteria, provides for rating under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area affected by residuals or injury or disease. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243 (2020). The General Formula was not affected by the amended criteria. With regard to the thoracolumbar spine, under the General Formula, a 10 percent rating is warranted for forward flexion of greater than 60 degrees but not greater than 85 degrees, a combined range of thoracolumbar motion greater than 120 degrees but not greater than 235 degrees, or muscle spasm or guarding not severe enough to result in abnormal gait or abnormal spinal contour. Id. A 20 percent rating is warranted for forward flexion of greater than 30 degrees but not greater than 60 degrees, a combined range of thoracolumbar motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Id. A 40 percent rating is warranted for forward flexion of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. Id. at Note (5). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is from zero to 90 degrees, extension is from zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are from zero to 30 degrees. Id. at Note (2). The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id. In addition, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, under both the prior and amended criteria, allows for the assignment of rating criteria based on the frequency and extent of incapacitating episodes during the preceding 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020). For VA rating purposes, 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. Id. at Note (1). The Veteran was afforded a VA examination for back conditions in February 2014. The clinician diagnosed lumbar strain and degenerative disc disease. The Veteran reported flare ups of increased pain with standing or sitting for over an hour and that these required rest but did not result in decreased range of motion. On examination, thoracolumbar motion was reported as 80 degrees of forward flexion, 20 degrees of extension, 30 or more degrees of right and left lateral flexion, and 30 or more degrees of right and left lateral rotation, with no objective evidence of painful motion. Range of motion was the same on repetition. The clinician found functional loss in the form of decreased movement. There was no localized tenderness or pain to palpation. There was no muscle spasm or guarding. Strength was normal, with no muscle atrophy. Reflexes were normal. Sensory examination was normal. Straight leg raising tests were negative. There was no radicular pain or any other sign or symptom of radiculopathy. There was no ankylosis. There were no other neurologic abnormalities. The Veteran did not have IVDS. The Veteran did not report using any assistive devices. The clinician found that the Veteran's low back disability would have an impact on his ability to work by limiting sitting and standing to one hour without changing positions. The clinician found that, other than the Veteran's comments regarding flare ups, there was no pain, weakness, fatigability, or incoordination that could significantly limit functional ability during flare ups or with repetition over time and that there would be "no additional decrease in R[ange] O[f] M[otion] with flare ups." In his January 2015 NOD, the Veteran reported that his back was "very painful whether sitting or moving." The Veteran was afforded an additional VA examination for back conditions on August 18, 2020. The clinician diagnosed degenerative arthritis of the spine. The Veteran reported ongoing chronic back pain, with more frequent flare ups. He reported burning pain and pressure in his low back. He reported flare ups three to four times a week, lasting four to five hours at a time, in which his back felt like hot pliers were gripping his spine. He reported functional impairment in the form of difficulty bending over and performing twisting motions. On examination, thoracolumbar motion was reported as 40 degrees of forward flexion, 15 degrees of extension, 20 degrees of right and left lateral flexion, and 30 degrees of right and left lateral rotation. Pain was noted on forward flexion, extension, and right and left lateral flexion and it caused functional loss. There was no evidence of pain with weight bearing. There was no objective evidence of localized tenderness or pain on palpation. Range of motion was the same on repetition. The examination was immediately after repetitive use over time and ranges of motion were impacted by pain and weakness as described above. The examiner stated that after repetitive use over time, the range of motion would be the same as the initial range of motion measurements. The examination was not during a flare up, but the clinician found that it was medically consistent with the Veteran's statements and that, during a flare up, pain, fatigue, weakness, lack of endurance, and incoordination would further limit range of motion to 35 degrees of forward flexion, 10 degrees of extension, 10 degrees of right and left lateral flexion, and 15 degrees of right and left lateral rotation. There was no guarding or muscle spasm. There were no additional factors contributing to disability. Strength was normal, with no muscle atrophy. Reflexes were normal. Sensory examination was normal. Straight leg raising tests were negative. There was no radicular pain or any other sign or symptom of radiculopathy. There was no ankylosis. There were no other neurologic abnormalities. The Veteran did not have IVDS. The Veteran did not report using any assistive devices. The clinician found that the Veteran's low back disability would have an impact on his ability to work by rendering him unable to climb stairs, lift heavy objects, bend over, stand, or sit for prolonged periods and that he had lost less than one week of work time due to his low back symptoms over the past twelve months. There was objective evidence of pain on non-weight bearing and the clinician found that it was not feasible to test the passive range of motion of the spine in a safe and reasonable manner. During the August 25, 2020 hearing, which was one week after the most recent VA examination, the Veteran testified that his low back symptoms had worsened since his first VA examination. He also testified that his "lower legs will get cold really easy" and, when his representative described the symptoms of radiculopathy, the Veteran responded that he had similar symptoms "especially down [his] left leg and into [his] foot is the worst." Based primarily on the results of the August 2020 VA examination, in a September 2020 rating decision, the Agency of Original Jurisdiction (AOJ) granted a 20 percent rating on and after July 20, 2020, the date VA received a redundant claim for an increased rating from the Veteran. The preponderance of the evidence described above shows that the Veteran's back injury does not warrant a rating in excess of 10 percent from June 6, 2013 to July 19, 2020. During that period, there is no evidence of forward flexion limited to 60 degrees or less, a combined range of thoracolumbar motion of 120 degrees or less, guarding, muscle spasm, or ankylosis, including with the impact of flare ups or repetition over time. The preponderance of the evidence described above also shows that the Veteran's back injury does not warrant a rating in excess of 20 percent on and after July 20, 2020. During that period, there is no evidence of forward flexion limited 30 degrees or less or ankylosis, including with the impact of flare ups or repetition over time. Given the existence of a range of thoracolumbar motion, the preponderance of the evidence is against a finding that the Veteran has had ankylosis of the thoracolumbar spine as defined above at any point during the period on appeal. "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 92 (33rd ed. 2020). In addition, no examiner or treatment provider has found ankylosis of the thoracolumbar spine and the Veteran's symptoms are not analogous to ankylosis of the thoracolumbar spine as defined above. The Board has additionally considered whether a higher rating is warranted under the formula for rating IVDS based on incapacitating episodes. There is no evidence of IVDS or of incapacitating episodes as defined above having a duration of at least two weeks in twelve months during the period on appeal. For this reason, a rating in excess of 10 percent based on incapacitating episodes caused by IVDS is not warranted. The Board therefore finds that there are no other potentially applicable Diagnostic Codes by which higher ratings can be assigned. The Board has considered the Veteran's lay statements. The Veteran is competent to report his own observations with regard to the symptoms of his low back disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). However, nothing in the Veteran's lay statements provides a basis for assigning a higher rating because the Veteran does not report that the predominant state of his thoracolumbar motion prior to July 20, 2020 was 60 degrees or less of forward flexion, a combined range of thoracolumbar motion of 120 degrees or less, guarding, muscle spasm, or ankylosis of the thoracolumbar spine, or that the predominant state of his thoracolumbar motion on and after July 20, 2020 is 30 degrees or less of forward flexion or ankylosis of the thoracolumbar spine. In addition, the Board considered whether a higher rating is warranted under the regulations relating to additional functional loss due to pain, weakness, fatigability, incoordination, and other factors under DeLuca, 8 Vet. App. at 204-07; 38 C.F.R. §§ 4.40, 4.45. There is nothing to indicate that the Veteran's pain causes functional impairment equivalent to 60 degrees or less of forward flexion, a combined range of thoracolumbar motion of 120 degrees or less, guarding, muscle spasm, or ankylosis of the thoracolumbar spine prior to July 20, 2020, or 30 degrees or less of forward flexion or ankylosis of the thoracolumbar spine on or after July 20, 2020. Any associated objective neurologic abnormalities caused by the Veteran's low back disability, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a at Note (1). The Board notes the Veteran's testimony regarding leg symptoms and hip pain during the August 2020 hearing, but no examiner or treatment provider during the period on appeal, including the clinician who examined the Veteran one week prior to the hearing, has found any sign or symptom of radiculopathy of either lower extremity. During both VA examinations, the Veteran reported no radicular symptoms at all and all examination findings pertinent to radiculopathy were normal, including his sensory examination. The Board finds that the examiners' detailed findings, including findings just seven days before the hearing, are of greater probative value with regard to radiculopathy than the Veteran's lay assertions. Additionally, an August 2020 private treatment record from Dr. K. C. states that the Veteran had back pain, with problems lifting, bending, sitting, and standing. He had no referred pain into his lower extremities. During his visit with Dr. K. C. he "denie[d] any lower extremity weakness or falling down," and had no bowel or bladder problems and "no saddle paresthesias." Although he reported left upper extremity weakness and other symptoms that were "consistent with his neck problems," he denied having radicular in his lower extremities and Dr. K. C. found none. It is reasonable to conclude that if he had been experiencing radicular symptoms at the time he saw Dr. K. C. specifically for his neck and low back pain, he would have reported them, especially when specifically asked. Instead he denied symptoms. The record from Dr. K. C. supports a finding that he does not have radiculopathy because a medical professional made inquiry into whether he had radicular symptoms and he denied experiencing them. Dr. K. C. noted that the Veteran had hip pain but did not diagnose radiculopathy. In September 2020, the Veteran returned to Dr. K. C. to clarify that he had restless leg syndrome when laying in a prone position. Dr. K. C. stated that hip pain, back pain, and restless leg syndrome were consistent with his disability picture. However, radiculopathy still was not diagnosed. Instead, he had hip pain and restless leg syndrome. The evidence supports a finding that the Veteran does not have neurological abnormalities that need to be separately evaluated. At the Veteran's hearing, his representative asked him questions about radiculopathy, and stated that the term meant when "...the bones in your back are pushing on the nerves," and stated that it causes problems like legs feeling like they are asleep, numbness, and tingling. He also stated that from the sciatic or femoral nerve, one could have shooting or burning pain. His representative then asked the Veteran if he had those symptoms, and stated that he could obtain separate ratings if he had radiculopathy. The Veteran's representative stated at the hearing that he is a registered nurse and therefore he is a medical professional, not a layperson. However, he did not diagnose the Veteran with radiculopathy. Instead he defined the term and asked the Veteran whether he had symptoms. His representative's statements and questions regarding radiculopathy are not afforded more probative weight than the VA examiner who conducted the examination one week earlier, who performed specific tests and determined that radiculopathy was not present. The medical evidence is the most probative and supports a finding that the Veteran does not have radiculopathy. REASONS FOR REMAND 1. Service connection for a heart disability is remanded. Once VA undertakes the effort to provide an examination when developing a service connection claim, even if not statutorily obligated to do so, it must provide one that is adequate for purposes of the determination being made. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran was afforded a VA examination in November 2014. The clinician diagnosed valvular heart disease and opined that it was less likely than not that it was related to active duty service because his service treatment records were "silent." A February 1989 service treatment record includes an electrocardiographic record noting sinus arrythmia. A medical opinion based on an inaccurate factual premise has limited, if any, probative value. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). For this reason, a remand is warranted to obtain an additional medical opinion. 2. Service connection for a respiratory disability is remanded. The Veteran was afforded a VA examination in November 2014. The clinician diagnosed reactive airway disease and opined that it was less likely than not that it was related to active duty service because there were no symptoms consistent with reactive airway disease or asthma in active duty service and the diagnosis was "many years post service." In his January 2015 Notice of Disagreement (NOD), the Veteran contended that his in-service symptoms may have been misdiagnosed. Because the VA clinician's opinion does not address this contention, a remand is warranted to obtain an additional medical opinion. 3. Service connection for obstructive sleep apnea is remanded. The Veteran was afforded a VA examination in November 2014. The clinician diagnosed obstructive sleep apnea and opined that it was less likely than not that it was related to active duty service because there was "no objective medical" in service treatment records. During the August 2020 hearing, the Veteran testified that his respiratory symptoms during active duty service might have represented undiagnosed sleep apnea. Because the VA clinician's opinion does not address this contention, a remand is warranted to obtain an additional medical opinion. The matters are REMANDED for the following action: 1. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran's heart disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is as likely as not (a probability of 50 percent or greater) that any current heart disability began in service, was caused by service, or is otherwise related to the Veteran's active service, including as a result of environmental exposure during service in Southwest Asia. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. A February 1989 service treatment record including an electrocardiographic record noting sinus arrhythmia. b. The Veteran's testimony during an August 2020 hearing regarding his symptoms during active duty service. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 2. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran's respiratory disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is as likely as not (a probability of 50 percent or greater) that any current respiratory disability began in service, was caused by service, or is otherwise related to the Veteran's active service, including as a result of environmental exposure during service in Southwest Asia. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. Multiple service treatment records reflecting reports of and treatment for respiratory symptoms, including in April 1984, November 1986, January 1987, January 1988, April 1990, June 1990, March 1992, March 1998, and September 1998, as well as a March 1999 Report of Medical Assessment. b. The Veteran's contention in his January 2015 Notice of Disagreement (NOD) that his respiratory symptoms during active duty service might have been misdiagnosed. c. The Veteran's testimony during an August 2020 hearing regarding his symptoms during active duty service. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 3. Arrange for an opinion by an appropriate clinician for the purpose of determining the etiology of the Veteran's obstructive sleep apnea. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician must provide an opinion as to whether it is as likely as not (a probability of 50 percent or greater) that any current obstructive sleep apnea began in service, was caused by service, or is otherwise related to the Veteran's active service, including as a result of environmental exposure during service in Southwest Asia. Although an independent review of the claims file is required, the Board calls the clinician's attention to the following: a. Multiple service treatment records reflecting reports of and treatment for respiratory symptoms, including in April 1984, November 1986, January 1987, January 1988, April 1990, June 1990, March 1992, March 1998, and September 1998, as well as a March 1999 Report of Medical Assessment. b. The Veteran's contention in his January 2015 Notice of Disagreement (NOD) that his respiratory symptoms during active duty service might have been misdiagnosed. c. The Veteran's testimony during an August 2020 hearing regarding his symptoms during active duty service. The rationale for any opinion expressed should be provided. Note that the fact that a disability is not mentioned in treatment records cannot serve as the sole basis for a negative finding. If an opinion cannot be made without resort to speculation, the clinician should so state and provide reasoning as to why a conclusion would be so outside the norm that such an opinion is not possible. 4. Ensure that the directives specified in this remand have been implemented. If they have not, appropriate corrective action must be undertaken before readjudication. Stegall v. West, 11 Vet. App. 268 (1998) 5. Then, readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Ryan Frank, 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.