Citation Nr: 21042770 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 09-33 867 DATE: July 13, 2021 ORDER Entitlement to an initial 20 percent disability rating, but no higher, for service-connected peripheral neuropathy of the right lower extremity is granted. Entitlement to an initial 20 percent disability rating, but no higher, for service-connected peripheral neuropathy of the left lower extremity is granted. FINDINGS OF FACT 1. The Veteran's service-connected peripheral neuropathy of the right lower extremity more closely approximates incomplete paralysis with moderate symptoms. 2. The Veteran's service-connected peripheral neuropathy of the left lower extremity more closely approximates incomplete paralysis with moderate symptoms. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 20 percent disability rating, but no higher, for service-connected peripheral neuropathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.1234.124a, Diagnostic Code (DC) 8520. 2. The criteria for entitlement to an initial 20 percent disability rating, but no higher, for service-connected peripheral neuropathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.120, 4.1234.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1982 to July 1983. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Claims for these exact issues never were filed by the Veteran. In an August 2018 decision, the Board adjudicated frostbite residual claims for the Veteran's bilateral upper and lower extremities, as well as claims for peripheral neuropathy of the bilateral upper extremities. The Board noted that, pursuant to DC 7122, peripheral neuropathy caused by cold injury residuals is to be rated separately under the appropriate DC. Remand, thus, was required to determine if the Veteran's peripheral neuropathy in his bilateral lower extremities was related to his service-connected cold injury residuals, warranting separate ratings The issue of entitlement to total disability based on individual unemployability (TDIU) was remanded as inextricably intertwined. In June 2019, the matters again were remanded because VA failed to secure a medical opinion ordered in the August 2018 decision. In a September 2020 rating decision, VA awarded the Veteran separate ratings for his peripheral neuropathy of the bilateral lower extremities. Each leg was assigned a 10 percent rating effective March 4, 2008 (the date the Veteran originally filed claims for cold injury residuals). In a January 2021 decision, the Board remanded the instant claims, as well as entitlement to TDIU, due to outstanding VA medical center (VAMC) and private treatment records. From then until April 2021, updated VAMC records and the missing, identified private treatment records were uploaded. Thus, the Board finds that VA substantially has complied with the most recent remand directives, permitting adjudication of these claims. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268, 271 (1998). In an April 26, 2021, Rating Decision, VA awarded the Veteran TDIU effective March 4, 2008. Because the TDIU award spans the entire appellate period, it is considered a full grant of benefits sought on appeal, so it herein will not be discussed. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009); cf. Grantham v. Brown, 114 F.3d 1156, 1158 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). VA subsequently issued a Supplemental Statement of the Case (SSOC) where it continued to deny the Veteran ratings in excess of 10 percent for his peripheral neuropathy of the bilateral lower extremities. Thus, these two issues now are before the Board, and the appellate period extends back to the March 4, 2008, filing for the Veteran's cold injury residuals. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). "The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (discussing 38 U.S.C. § 5110 and 38 C.F.R. § 3.400(o)). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. Ibid. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Neurological or convulsive disorders ordinarily are to be rated in proportion to the impairment of motor, sensory or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, injury to the skull, etc. In rating disability from the conditions in the preceding sentence refer to the appropriate schedule. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. See nerve involved for diagnostic code number and rating. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. See nerve involved for diagnostic code number and rating. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. The opening paragraph to 38 C.F.R. § 4.124a states that, with the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. The United States Court of Appeals for the Federal Circuit has held that the M21-1 Adjudication Procedures Manual (M21) of the Veterans Benefits Administration (VBA) does not "carry the force of law." DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017). It is "an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation." Ibid. (quoting 72 Fed. Reg. 66,218, 66,219 (Nov. 27, 2007)). The M21 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how VBA applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion. Ibid.; see also 38 U.S.C. § 7104(c). The regulations further clarify that the Board "is not bound by Department manuals, circulars, or similar administrative issues." 38 C.F.R. § 20.105. In Overton v. Wilkie, 30 Vet. App. 257, 264 (2018), however, the CAVC held that the Board is required to discuss "any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision." The CAVC has stated, on at least two prior occasions, that, where the applicable rating criteria contains terms that are undefined, the Board must define those terms as it applies them to the veteran at hand in order to satisfy its obligation to provide adequate reasons or bases. Johnson v. Wilkie, 30 Vet. App. 245, 25455 (2018); Spellers v. Wilkie, 30 Vet. App. 211, 21920 (2018). Aside from instructing that the ratings for the peripheral nerves are for unilateral application with the ability to apply the bilateral factor, see 38 C.F.R. § 4.124a, Opening Paragraph to Diseases of the Peripheral Nerves, the Board notes that there is no binding authority on how to apply separate ratings for the various peripheral nerves in the lower extremities. In other words, there is no instruction on when different nerves can be assigned separate ratings without running afoul of the rule against pyramiding. This rule states that the evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. 38 C.F.R. § 4.14. When determining whether separate ratings are applicable, the critical element is that none of the symptomatology for any condition is duplicative of or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In this regard, the Board finds the M21 particularly insightful and instructive when determining whether separate ratings are warranted and for which nerves. The table below shows that the lower extremities have five nerve branches, and each nerve branch affects different muscles/joints. Thus, to the extent a veteran experiences peripheral neuropathy within the same nerve branch, the Board must be careful not to grant separate ratings where, although multiple nerves are involved, the same symptoms occur. See M21 at III.iv.4.N.4.e. Lower Extremity Nerve Branches Function Sciatic sciatic nerve (DCs 8520, 8620, and 8720) external popliteal nerve (common peroneal) (DCs 8521, 8621, and 8721) musculocutaneous nerve (superficial peroneal) (DCs 8522, 8622, and 8722) anterior tibial nerve (deep peroneal) (DCs 8523, 8623, 8723) internal popliteal nerve (tibial) (DCs 8524, 8624, and 8724), and posterior tibial nerve (DCs 8525, 8625, and 8725). Foot and leg sensory and motor function of the buttock leg knee muscles below knee lower leg fibula foot, muscles of foot, sole of foot, plantar flexion, and toes. Femoral anterior crural nerve (femoral) (DCs 8526, 8626, and 8726), and internal saphenous nerve (DCs 8527, 8627, and 8727). Thigh and leg sensory and motor function of the quadriceps muscle, front of thigh medial calf, and medial malleolus. Obturator (DCs 8528, 8628, and 8728) Motor and sensory function of the hip and muscles of the hip, and medial thigh. External cutaneous nerve of thigh (DCs 8529, 8629, and 8729) Sensory function of the lateral thigh. Illio-inguinal nerve (DCs 8530, 8630, and 8730) Motor and sensory function of the lower abdominal wall thigh scrotum, and labia majora. Section III.iv.4.N.4.c. of the M21 provides a table that assists VBA adjudicators in determining the appropriate level of severity for incomplete paralysis, neuritis, and neuralgia. That table is as follows: Degree of Incomplete Paralysis Description Mild As this is the lowest level of evaluation for each nerve this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for SC purposes. In general look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis. Moderate Moderate is the maximum evaluation reserved for the most significant cases of sensory-only impairment (38 C.F.R. § 4.124a). Symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. Moderate is also the maximum evaluation that can be assigned for neuritis not characterized by organic changes referred to in 38 C.F.R. § 4.123, or neuralgia characterized usually by a dull and intermittent pain in the distribution of a nerve (38 C.F.R. § 4.124). Moderately Severe The moderately severe evaluation level is only applicable for involvement of the sciatic nerve. This is the maximum rating for sciatic nerve neuritis not characterized by the organic changes specified in 38 C.F.R. § 4.123. Motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. Atrophy may be present. However, for marked muscular atrophy see the criteria for a severe evaluation under 38 C.F.R. § 4.124a, DC 8520. Severe In general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. For the sciatic nerve (38 C.F.R. § 4.124a, DC 8520) marked muscular atrophy is expected. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve (38 C.F.R. § 4.123). There is scant-to-no guidance on how to define the severity terms for the peripheral nerves. Where the Board is required to define these terms when adjudicating the Veteran's appeal, see Overton, 30 Vet. App. at 264, it likewise finds the guidance contained in M21 III.iv.4.N.4.c. helpful and instructive. The opening paragraph to the table for diseases of the peripheral nerves states that the term "incomplete paralysis," with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. An 80 percent disability rating is warranted for complete paralysis with the following symptoms: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. A 60 percent disability rating is warranted for incomplete paralysis with severe symptoms marked by muscular atrophy. A 40 percent disability rating is warranted for incomplete paralysis with moderately severe symptoms. A 20 percent disability rating is warranted for incomplete paralysis with moderate symptoms. A 10 percent disability rating is warranted for incomplete paralysis with mild symptoms. A July 2008 VAMC entry notes that the Veteran had normal strength in his legs. A January 2009 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The Veteran reported that he experiences pain in his toes and arches of his feet, as well as additional numbness and weakness. The Veteran is unable to stand for long periods of time due to poor circulation in his legs. The Veteran's feet were cool to the touch; his skin is dry and smooth to the touch with normal hair growth, and there is no muscle atrophy. The nails on the toes were not deformed or atrophic. Deep tendon reflexes were normal and symmetric, and there was decreased sensation to pinprick and light touch along all the toes. Range of motion in the lower extremities was normal with mild pain on manipulation of the joints in the feet. Peripheral pulses including dorsalis pedis, posterior tibial, and radial were normal and symmetric. No evidence of edema, hair loss, or shiny strophic skin was present. May 2009 VA medical center (VAMC) records note pain the Veteran's hips, legs, calves, and toes. L.W.a long-time friend of the Veteranwrote in an August and October 2009 statement that the Veteran has problems with his feet that interfere with employment. August 2009 private treatment records from the Mary Black Health System (MBHS) show that the Veteran has pain walking and standing up. These records also document a diagnosis of peripheral neuropathy and treatment for that condition. An August 13, 2009, entry indicates that the Veteran has 3+ leg strength bilaterally but normal deep tendon reflexes and down going toes bilaterally. An October 2009 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The Veteran still complained of numbness and pain in the toes and feet. Upon examination, he reported decreased sensation to the primary modalities distally in the toes and feet with poor use of his lower limbs. At this point in time, the examiner could not render a diagnosis of peripheral neuropathy. A November 2009 nerve conduction velocity was performed, and the examiner's opinion still was unchanged. The Veteran stated at a March 2010 VAMC visit that his neuropathy medication was not helping and that his pain was 8/10. A December 2010 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The Veteran was diagnosed with peripheral neuropathy of the bilateral lower extremities. Feet and toes were cool to the touch with normal color; no edema was noted. The skin was dry and smooth with no ulceration and normal hair growth. There was no muscle atrophy, swelling, and deformed or atrophic nails. There was decreased sensation to pinprick and light touch in all toes. Peripheral pulses were normal. A June 2010 VAMC entry shows a request that the Veteran be fitted for diabetic shoes as his peripheral neuropathy was secondary to his service-connected frostbite of his feet. Private treatment records from the Spartanburg Regional Medical Center are associated with the claims file and span from March 2014 to February 2015. The records do not contain particular treatment for the Veteran's neuropathy but occasionally notes that he does not have any numbness or weakness and that his motor sensory skills are intact. A March 2016 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The report noted that the Veteran did not suffer from neuropathy of the bilateral lower extremities and only confirmed a diagnosis of peripheral neuropathy in the radial, ulna, and median nerves. A September 2017 VAMC entry notes that the Veteran had very distressing pain (9/10) , in his legs and feet, rendering him unable to speak. The Veteran confirmed that this pain is constant. A March 2018 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. This report did confirm a diagnosis of peripheral neuropathy in the bilateral lower extremities. The severity of the symptoms applies to the bilateral lower extremities unless otherwise noted. The Veteran had severe constant pain, paresthesias and/or dysesthesias, and numbness. Knee muscle strength was normal, but ankle plantar and dorsiflexion was 4/5. Knee reflexes were normal, but ankle reflexes were hypoactive. Upon light touch, upper anterior thigh and the thigh/knee had decreased sensation; sensation for the lower leg/ankle and foot/toes was absent. There were no trophic changes, but there is a neuropathic gait; the Veteran slightly drags his foot then drops it when taking steps. The Veteran was noted to have mild, incomplete paralysis of the bilateral external popliteal nerve. In an August 2020 VA Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, the examiner noted that the Veteran's peripheral neuropathy causes considerable swelling and that he experiences leg weakness, stumbling, and a history of falling. The Veteran shuffles when walking, uses a lift chair to ambulate, cannot stand for periods of time due to leg weakness, and has leg pain. An August 2020 VA examination report noted physical examination of the Veteran and review of the claims file and recited the Veteran's complaints and medical history. The severity of the noted symptoms applies to the bilateral lower extremities unless otherwise noted. The Veteran had mild constant pain and paresthesias and/or dysesthesias and moderate intermittent pain and numbness. Right knee extension, ankle plantar extension, and dorsiflexion were 4/5, but the left side was normal; there was no muscle atrophy. The right ankle and knee reflexes were hypoactive, but left reflexes were normal. Upon light touch, upper anterior thigh and the thigh/knee had normal sensation; sensation for the lower leg/ankle was decreased, and sensation for the feet/toes was absent. There were no trophic changes, but the Veteran drags his right side. He had mild, incomplete paralysis of the bilateral sciatic and external popliteal nerves. Records from the Spartanburg Regional Healthcare System span until June 2020. An entry from that month notes that the Veteran fell ten feet from his back porch onto a concrete walkway, injuring his head. The cause of the fall is not discussed within the records. Additional VAMC records span through April 2021, but they do not contain any evidence pertinent to the issues on appeal. The Board finds that, for the entire period on appeal, an initial 20 percent disability rating is warranted, as will be discussed below. As previously mentioned, VA has not defined the severity terms (mild, moderate, moderately severe, and severe) for the peripheral nerves. Thus, the Board must ensure that it defines that criteria as applied to the Veteran. See Johnson, 30 Vet. App. at 25455; Spellers, 30 Vet. App. at 21920. To satisfy that obligation, and to ensure that the Board discusses "any relevant provisions contained in the [M21]," it turns to, and, in the absence of any other prevailing authority, relies on, the various M21 charts noted herein. Overton, 30 Vet. App. at 264. Start with M21 Provision III.iv.4.N.4.c: the chart that pairs severity with expected symptoms/descriptions. Recall above that the highest rating the Veteran should receive for sensory-only impairments of the nerves is moderate. See 38 C.F.R. § 4.124a, Opening Paragraph for Diseases of the Peripheral Nerves. The record does not disclose that the Veteran experiences symptoms other than sensory-related ones. It shows that the Veteran perpetually has had problems standing for long periods of time, persistently has complained of pain levels in his feet of 8+/10, and even has absent sensation in response to light touch in his feet/toes. These represent the most significant types of sensory impairment. VA examinations also reveal slight reduction in right leg muscle strength and hypoactive reflexes. The Board believes these symptoms squarely fall within the description of moderate impairment. See 38 C.F.R. § 4.124a, DC 8520; M21 at III.iv.4.N.4.c. To receive a higher evaluation, with respect to the sciatic nerve only, the Veteran needs to exhibit moderately severe symptoms, which should have "[m]otor and/or reflex impairment . . . at a grade reflecting a high level of limitation"; one also could expect to see "hyperactive reflexes." M21 at III.iv.4.N.4.c. There is a possibility that atrophy "may also be present." Ibid. There is no indication that the Veteran's peripheral neuropathy causes such impairment. As noted, there is moderate sensory impairment, but there is no hyperactive reflexes, atrophy, or high level of limitation. With respect to the external popliteal nerve, the next highest evaluation is severe, 38 C.F.R. § 4.124a, DC 8521, and the record certainly does not disclose that the Veteran exhibits any of the hallmark signs for severe, incomplete paralysis. That level of impairment contemplates motor/reflex impairment and hyperactive changes reflecting a "very high level of limitation or disability." M21 at III.iv.4.N.4.c. Atrophy is expected, and trophic changes are expected to be seen in longstanding cases of neuropathy. The Veteran, at a minimum, has had peripheral neuropathy of the bilateral lower extremities for over thirteen years (since March 2008). Never once has there been any documentation of trophic changes, atrophy, or hyperactive muscle changes. Thus, for either nerve, the Board does not find that a rating in excess of 20 percent is warranted. See 38 C.F.R. § 4.124a, DCs 8520, 8521; ibid. Lastly, the Board notes that only one rating may be assigned for the impairment of the Veteran's sciatic and external popliteal nerves. There is no statutory, regulatory, or precedential authority from OGC regarding separate evaluations for various nerves. Because the Board lacks any substantive guidance on the topic, it finds the provisions of the M21 especially helpful and instructive in elaborating why the Veteran can receive only one rating. See Overton, 30 Vet. App. at 264. The chart contained in M21 Provision III.iv.4.N.4.e shows that there are five "branches" of nerves, each affecting different muscles/areas. The sciatic branch contains the sciatic, external popliteal, musculocutaneous, anterior tibial, internal popliteal, and posterior tibial nerves. Those nerves collectively affect the buttocks; leg; knee; muscles below the knee; lower leg; fibula; foot, muscles of the foot, sole of the foot, plantar flexion; and toes. Those areas precisely are where the Veteran experiences his pain, but mostly in the feet and toes. To award the Veteran separate ratings for both his sciatic and external popliteal nerves would be to compensate him for the same symptoms twice: a blatant violation of the rule against pyramiding. Thus, he is entitled to one rating only. See Esteban, 6 Vet. App. at 261; 38 C.F.R. § 4.14; M21 at III.iv.4.N.4.e. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Trevor T. Bernard, 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.