Citation Nr: 21042026 Decision Date: 07/11/21 Archive Date: 07/11/21 DOCKET NO. 17-50 808 DATE: July 11, 2021 ORDER New and material evidence having been received, the petition to reopen a previously denied claim of entitlement to service connection for tinnitus is granted; the claim is granted to that extent only. New and material evidence having been received, the petition to reopen a previously denied claim of entitlement to service connection for left upper arm burn is granted; the claim is granted to that extent only. REMANDED Entitlement to service connection for thoracolumbar spine disorder is remanded. Entitlement to service connection for cervical spine disorder is remanded. Entitlement to service connection for migraine headaches is remanded. Entitlement to service connection for temporomandibular joint dysfunction (TMJ disorder) to include as secondary to service-connected disability is remanded. Entitlement to service connection for upper arm burns is remanded. Entitlement to service connection for tinnitus, to include as secondary to medications taken to treat the Veteran's service-connected other specified trauma disorder is remanded. FINDINGS OF FACT 1. After the issuance of March 2016 rating decision denying among other issues, entitlement to service connection for tinnitus and service connection to left upper arm burn, the Veteran did not submit any new evidence or appeal the issues with one year. Therefore, the March 2016 rating decision is final. 2. The evidence associated with the claims file subsequent to the March 2016 rating decision is not cumulative nor redundant of the evidence previously of record and relates to an unestablished fact necessary to substantiate the claim of entitlement to service connection for tinnitus and service connection to left arm burn. CONCLUSIONS OF LAW 1. The March 2016 rating decision denying the claim for service connection for tinnitus is final and new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for tinnitus. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. 2. The March 2016 rating decision denying the claim for service connection for left upper arm burn is final and new and material evidence has been received sufficient to reopen a claim of entitlement to service connection for left upper arm burn. 38 U.S.C. §§ 5108, 7104, 7105; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1994 to July 1997. These matters come to the Board of Veterans' Appeals (Board) on appeal from March 2016, April 2017, July 2017 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) of the Board in May 2021. A transcript of the hearing has been associated with the claims file. New and Material Evidence As a threshold matter, the Board must determine whether new and material evidence has been submitted to reopen a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001) (reopening after a prior unappealed RO denial) A rating decision becomes final when it has not been appealed within the prescribed time period and when no additional material evidence was received within a year of the decision; the decision is not subject to revision on the same factual basis. 38 U.S.C. § 7105(b); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In order to reopen a claim, there must be added to the record "new and material evidence." 38 U.S.C. § 5108. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can neither be cumulative or redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The law provides that new and material evidence necessary to reopen previously and finally disallowed claims must be secured or presented since the time that the claims were finally disallowed on any basis, not only since the time the claims were last disallowed on the merits. See Evans v. Brown, 9 Vet. App. 273, 285 (1996). 38 C.F.R. § 3.156(a), which defines new and material evidence, requires that evidence raise a reasonable possibility of substantiating the claim in order to be considered "new and material," and defines material evidence as evidence, that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. The Court of Appeals for Veterans Claims (Court) has held that the determination of whether newly submitted evidence raises a reasonable possibility of substantiating the claim should be considered a component of the question of what is new and material evidence, rather than a separate determination to be made after the Board has found that evidence is new and material. See Shade v. Shinseki, 24 Vet. App. 110 (2010). The Court further held that new evidence would raise a reasonable possibility of substantiating the claim if, when considered with the old evidence, it would at least trigger the Secretary's duty to assist by providing a medical opinion. Id. For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's claims for service connection for tinnitus and burns were denied in a March 2016 rating decision. Specifically, the rating decision indicates that the Veteran complained of tinnitus and burns due to active service; however, in both instances, the VA determined that the Veteran's tinnitus and burns were not caused by or related to service. Evidence considered in this rating decision included military personnel records, service treatment records, private medical treatment records, and VA examinations. There was no further communication regarding her claim of entitlement to service connection for tinnitus and burns until June 2017, when VA received a new VA 21-526EZ form seeking entitlement to service connection for burns and tinnitus. Therefore, the March 2016 rating decision is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. In this regard, the Board has considered the applicability of 38 C.F.R. § 3.156(b), which provides that, when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, in the instant case, such regulation is inapplicable as no relevant evidence pertaining to the Veteran's claim for service connection was received prior to the expiration of the appeal period stemming from May 1978 rating decision. See also Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); Roebuck v. Nicholson, 20 Vet. App. 307, 316 (2006); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Moreover, no additional service records (warranting reconsideration of the claim) have been received at any time. See 38 C.F.R. § 3.156(c). The Veteran filed the instant claim as an initial claim for entitlement to service connection for tinnitus and burns of the left arm, which was received by the VA in June 2017. The pertinent evidence that has been received since the March 2016 rating decision includes continuing post-service treatment records, lay testimonies, and Board hearing testimony. Presuming the credibility of the Veteran's sworn testimony before the Board, the Board finds that the evidence is new and material. In this regard, the it has not been previously considered by VA, and it raises a reasonable possibility of substantiating the claim of entitlement to service connection for burns and tinnitus. 1. Tinnitus The claim for service connection for tinnitus was previously denied because there was no evidence showing that the tinnitus was etiologically related to active service. The VA examiner opined that the condition was not associated with service, stating instead that there was no initiating incident of noise the Veteran can recall which provoked tinnitus. However, during the May 2021 hearing with the undersigned Veteran Law Judge, the Veteran testified that the VA examiner who had provided her with the January 2016 examination had told her that her tinnitus was more likely due to medications she was taking although the examiner did not specify which medicine. The Veteran reported to taking medications to treat her service-connected other specified trauma and stressor-related and major depressive disorder, which is supported by medical treatment records associated with the claims file. Also, during the hearing, the Veteran reported that the Veteran had ringing in her ears since service, especially during her deployment in Germany. In support of this, the Veteran submitted a statement from her former spouse, who reported that the Veteran often complained of ringing while in service, including days when she was not scheduled at work. The Veteran and her representative provided new evidence and raised a new claim of entitlement of secondary service connection to include as due to medication taken to treat her service connected other specified trauma and stressor-related and major depressive disorder. Accordingly, reopening of the claim of entitlement to service connection for tinnitus is warranted. 2. Burns The claim for service connection for burns was previously denied because there was no evidence showing that the condition occurred in or was caused by service. The claim was also denied on a chronic disability basis because the evidence did not show that there were any residuals of burns post-service. The January 2016 VA examiner reported that the Veteran was a reliable historian but did not observe scarring on her left forearm. However, during the May 2021 hearing with the undersigned Veterans Law Judge, the Veteran testified that during service, she collided with someone carrying a large pot of boiling water which burned her upper left arm and that she still experiences sensitivity to heat on her upper forearms near the elbows as due to several in-service incidents in the kitchen where she experienced burns. It is unclear from the January 2016 VA examination whether the VA examiner had knowledge of this incident or the exact location of her burn. Accordingly, reopening of the claim of entitlement to service connection for burns of the left upper arm is warranted. REASONS FOR REMAND 1. Entitlement to service connection for thoracolumbar spine disorder is remanded. The Veteran asserts that she suffers from thoracolumbar spine disorder as a result of excessive weightlifting in performing her duties in service. Service treatment records show that the Veteran complained of and received treatment for low back pain in February 1995. In May 2021, the Veteran also submitted a copy of a letter she sent her family in March 1994, where she explained that she was dealing with some low back pain. The Veteran was provided VA examinations in March 2017. Both examiners provided a negative nexus opinion. Specifically, the March 2017 VA examiner stated that the February 1995 event was the only in-service event, that the Veteran's low back was found to be normal at separation, and that the Veteran's post-service treatment records did not show any disability until 2014, with no chronic symptoms between 1995 to 2014. However, as the new March 1994 letter shows that the Veteran has been experiencing low back pain prior to 1995, and presuming the probative value of the Veteran's testimony during her hearing where the Veteran reported that she did not report to sick call as frequently as she'd wanted for fear or being labelled as malingerer. Given the presentation of new evidence, an addendum medical opinion is necessary. 2. Entitlement to service connection for cervical spine disorder is remanded. The Veteran submitted a May 2021 statement, where the Veteran's former spouse asserted that during service, the Veteran had an incident where she was assigned to pick up strands of concertina wire, bundles of pickets, and sandbags, where she was struck by a picket on her head which fell on her from the top of a "Hemmit flat bed." During the May 2021 hearing, the Veteran contended that this incident impacted her cervical spine in such a way that led to constant pain. In a January 2018 medical treatment record, the Veteran's treatment provider diagnosed the Veteran with sublux stenosis IVF of the cervical spine. The record reveals a possible in-service event and a current diagnosis. However, the Veteran was not provided a VA examination. Therefore, on remand, the Veteran should be provided a VA examination to determine the nature and etiology of the Veteran's claimed cervical spine disorder to include the May 2021 report of an incident where picket item fell on the Veteran's head. McLendon v. Nicholson, 20 Vet. App. 79, 82-3 (2006). 3. Entitlement to service connection for migraine headaches is remanded. During the May 2021 hearing with the undersigned Veterans Law Judge, the Veteran reported that she had experienced headaches prior to enlistment, but that the headaches had cleared up until October 1995 when grease splashed onto her right eye, which then exacerbated the headaches. The April 2017 VA examiner opined that the Veteran's headaches were less likely than not caused or etiologically related to service. Presuming the credibility of the Veteran's sworn testimony before the Board, the VA examiner did not opine on whether the Veteran's headaches which might have pre-existed service was aggravated beyond its natural progression by service. Therefore, a remand is necessary to obtain an addendum opinion. 4. Entitlement to service connection for a TMJ disorder, to include as secondary to service-connected disability, is remanded. The Veteran submitted a May 2021 statement, where the Veteran's former spouse asserted that during service, the Veteran had an incident where she was assigned to pick up strands of concertina wire, bundles of pickets, and sandbags, where she was struck by a picket on her head which fell on her from the top of a "Hemmit flat bed," leading to The statement also explained that the Veteran suffered from lack of quality sleep. In the alternative, the Veteran and her representative also presented a new claim of entitlement during the May 2021 hearing, where they asserted that the Veteran's TMJ disorder could have been caused or aggravated due to the stress associated with her service-connected other specified trauma and stressor-related and major depressive disorder. The Veteran was not provided a VA examination to determine the nature and etiology of her claimed TMJ disorder. Based on the May 2021 hearing testimony and a new claim of entitlement, the Veteran should be provided with a new VA examination to determine the nature and etiology of her TMJ disorder to include the claimed head injury event as well as secondary to service-connected other specified trauma and stressor-related and major depressive disorder. See McLendon v. Nicholson, supra. 5. Entitlement to service connection for upper arm burn is remanded. During the May 2021 hearing with the undersigned Veterans Law Judge, the Veteran reported that she still feels sensitivity on her left upper arm due to a burn she experienced during service. She reported for a VA examination in January 2016 where the examiner found the Veteran a credible historian but opined that she did not observe any scars on the left forearm. The VA examiner opined that there was no evidence of burn or sensitivity on the Veteran's left forearm, but as the Veteran testified during the May 2021 that she has been experiencing heat sensitivity since the burn, and as the previous VA examiner has deemed her credible, this discrepancy between the Veteran's statements and the VA opinion should be addressed. A new VA examination should be provided to correctly locate the claimed burn and to determine the nature and etiology of the claimed left upper arm burn. 6. Entitlement to service connection for tinnitus, to include as secondary to medications taken to treat the Veteran's service-connected disability, is remanded. During the May 2021 hearing with the undersigned Veterans Law Judge, the Veteran reported that she has experienced ringing in her ears since service and submitted a statement from her former spouse who also stated that the Veteran constantly suffered from ringing in her ears, especially during days off due to the excessive noise she was dealing with in the kitchens or in other loud areas without adequate noise protection. Alternatively, the Veteran also testified that the VA examiner told the Veteran that she was likely experiencing ringing in her ears because of the medications she was taking. The Veteran reported to taking medications to treat her service-connected other specified trauma and stressor-related and major depressive disorder, which is supported by medical treatment records associated with the claims file. The Veteran and her representative provided new evidence and raised a new claim of entitlement of secondary service connection to include as due to medication taken to treat her service connected other specified trauma and stressor-related and major depressive disorder. The January 2016 VA examiner opined that the condition was not associated with service, stating instead that there was no initiating incident of noise the Veteran can recall which provoked tinnitus. Presuming the credibility of the Veteran's sworn testimony before the Board, an addendum VA opinion is warranted to determine the nature and etiology of the Veteran's claimed tinnitus disability, to include the May 2021 lay statement by the Veteran's ex-spouse and to determine whether the medicinal treatment for the Veteran's service-connected other specified trauma and stressor-related and major depressive disorder could have caused or aggravated the Veteran's claimed tinnitus disability. The matters are REMANDED for the following action: 1. The Veteran should be given the opportunity to identify any outstanding private or VA treatment records relevant to the claim on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and her representative and afford her an opportunity to submit any copies in her possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, the claims file, including a copy of this remand, should be sent to an appropriate examiner for opinion as to the nature and etiology of the Veteran's claimed thoracolumbar spine disorder. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for further in-person examination is left to the discretion of the examiner. The examiner must provide an opinion regarding the following questions: (A) Identify all of the Veteran's diagnosed thoracolumbar spine disorders. (B) For any diagnosed thoracolumbar spine disorder, is it at least as likely as not (50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to service, to include any incident thereof? The examiner should address the impact, if any, of the Veteran's complaint of back pain in her letter to her family in March 1994. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is 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. 3. Following the receipt of outstanding records, schedule the Veteran for a VA examination to address the nature and etiology of her cervical spine disorder. A complete copy of the claims file must be made available to the examiner, including a copy of this remand. After a thorough review of the medical and lay evidence of record is complete, the examiner should discuss the following: (A) Identify all of the Veteran's diagnosed cervical spine disorders. (B) For any diagnosed cervical spine disorders, is it at least as likely as not (50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to service, to include any incident thereof? The examiner should address the impact, if any, of the Veteran's complaint of her being struck on the head as explained in the May 2021 statement from her former spouse. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is 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. 4. Following the receipt of outstanding records, obtain an etiology opinion as to the Veteran's claimed migraine headaches to an appropriate medical professional. The record must be made available to the examiner. The need for an additional examination of the Veteran is left to the discretion of the examiner selected to write the addendum opinion. The examiner should respond to the following questions: (A) Did the Veteran's migraine headaches clearly and unmistakably pre-exist her service? (B) If there is clear and unmistakable evidence that such disease pre-existed service, the examiner is asked to opine as to whether there is clear and unmistakable evidence that the pre-existing disease did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service? If there was an increase in the severity of the Veteran's disease, the examiner should offer an opinion as to whether such increase was clearly and unmistakably due to the natural progress of the disease. (C) If there is no clear and unmistakable evidence that the Veteran's headaches pre-existed service and was not aggravated by service, the examiner is asked to opine as to whether it is at least as likely as not (probability of 50 percent or greater) that the migraine headaches had its onset during, or is otherwise related to, the Veteran's military service. The examiner should address the Veteran's contention that her headache disability is the result of having grease splashed into her eye during service. A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is 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. 5. Following the receipt of outstanding records, the claims file, including a copy of this remand, should be sent to an appropriate examiner for opinion as to the nature and etiology of the Veteran's claimed TMJ disorder. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for further in-person examination is left to the discretion of the examiner. The examiner must provide an opinion regarding the following questions: (A) For any diagnosed TMJ disorder, is it at least as likely as not (50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to service, to include any incident thereof? (B) Is the Veteran's TMJ disorder at least as likely as not (50 percent probability or greater) that the disorder proximately caused by or aggravated by the Veteran's service-connected mental health disorders? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is 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. 6. Following the receipt of outstanding records, schedule the Veteran for a VA examination to address the nature and etiology of her left upper arm burn. A complete copy of the claims file must be made available to the examiner, including a copy of this remand. After a thorough review of the medical and lay evidence of record is complete, the examiner should discuss the following: (A) Identify all burns and symptoms on the left upper arm. If the examiner is unable to observe any burns on her left upper arm, please note this. (B) For any left arm burn or residual symptoms, is it at least as likely as not (50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to service, to include any incident thereof? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate for the Board to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is 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. 7. Following the receipt of outstanding records, the claims file, including a copy of this remand, should be sent to an appropriate examiner for opinion as to the nature and etiology of the Veteran's claimed tinnitus. The opinion should be rendered by an appropriate medical professional. The examiner should review the record and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The need for further in-person examination is left to the discretion of the examiner. The examiner must provide an opinion regarding the following questions: (A) For any diagnosed tinnitus, is it at least as likely as not (50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to service, to include any incident thereof? (B) Is the Veteran's tinnitus at least as likely as not (50 percent probability or greater) proximately caused by or aggravated by the medicines prescribed to the Veteran to treat the Veteran's service-connected other specified trauma disorder? A rationale should be provided for all opinions offered. If it is not possible to provide a specific opinion regarding the above questions, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The medical opinion must support the conclusions reached with an analysis that is adequate to consider and weigh against other evidence of record; medical opinions must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. If an opinion cannot be expressed without resort to speculation, ensure that the clinician so indicates and discusses why an opinion is not possible, to include whether there is 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. Then, the record should again be reviewed. If any benefit sought on appeal remains denied, the Veteran and her representative should be furnished with a supplemental statement of the case and be given the opportunity to respond. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. J. Kim, Associate 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.