Citation Nr: 21042818 Decision Date: 07/13/21 Archive Date: 07/13/21 DOCKET NO. 15-33 407 DATE: July 13, 2021 ORDER New and material evidence has not been received to reopen a claim for service connection for a right hip disability. Entitlement to service connection for bilateral hearing loss is denied. Entitlement to service connection for tinnitus is denied. Entitlement to service connection for a right knee disability is denied. FINDINGS OF FACT 1. In a final April 2013 rating decision, the RO denied the Veteran's claim for service connection for a right hip disability. 2. Evidence received since the April 2013 rating decision, while new, is cumulative or redundant of the evidence previously of record or does not relate to an unestablished fact necessary to substantiate the claim for service connection for a right hip disability. 3. The most probative evidence of record indicates that neither tinnitus nor bilateral hearing loss were caused or aggravated by a period of active duty for training (ACDUTRA), nor have they been shown to be caused or aggravated by an injury while on inactive duty for training (INACDUTRA) or ACDUTRA. 4. The most probative evidence of record indicates that a right knee disability was not caused or aggravated by a period of ACDUTRA, nor is it shown to be caused or aggravated by an injury while on INACDUTRA or ACDUTRA. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim for service connection for a right hip disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(c). 2. The criteria for entitlement to service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.385. 3. The criteria for entitlement to service connection for tinnitus have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for a right knee disability have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant served on ACDUTRA from February 1985 to May 1985, with additional service in Army National Guard and Reserve service from August 1984 and June 2001, with periods of ACDUTRA and INACDUTRA. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2015 rating decision. In June 2019, the Board reopened the claims for service connection right knee disability, bilateral hearing and tinnitus, and remanded the appeal for additional development, which has been completed. New and Material Evidence Claim Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108. "New" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "Material" evidence means 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 be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Court interpreted the language of 38 C.F.R. § 3.156(a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). In an unappealed April 2013 rating decision, the RO denied service connection for a right hip disability because the claimed disorder was note shown to be caused or aggravated during a period of qualifying service. The Veteran was notified of the rating decision, but did not appeal the decision. As such, the April 2013 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. A final decision cannot be reopened unless new and material evidence is presented. 38 U.S.C. § 5108. At the time of the April 2013 rating decision, the evidence of record consisted of service personnel and treatment records, which showed that on enlistment examination in August 1984, the Veteran reported a history of a right hip injury at the age 10. The examiner noted no disabling residuals. The remainder of the service treatment records failed to document any findings pertaining to the right hip. Also of record was a VA examination dated March 2013, that documented the Veteran's report of nonspecific injury to his right hip during summer camp several years earlier. Reportedly, he did not seek treatment at that time or at any time thereafter. The Veteran described a gradual onset of right hip pain since 2011. The examiner diagnosed right hip arthritis. The evidence received subsequent to the April 2013 rating decision includes, in pertinent part, VA treatment records and additional service personnel and treatment records, which do not document any complaints or treatment for a right hip disability. This evidence is not material to that claim and some of it provides evidence against the claim. The Board has also considered lay statements asserting that he developed a right hip disability as due to service. However, the lay statements are simply a reiteration of previously considered general assertions of service connection. Even assuming their credibility for new and material evidence analysis, the statements are cumulative and cannot be considered new and material evidence. He is simply repeating the prior claim. In any event, it is important for the Veteran to understand that event if the Board found new and material evidence, that new evidence (as cited above), would provide a basis to deny the claim once again. As the Veteran has not fulfilled the threshold burden of submitting new and material evidence to reopen the finally disallowed claim, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). Accordingly, the Veteran's petition to reopen the claim for service connection for a right hip disability is denied. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or "nexus" between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent." However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). The term active military service includes active duty, any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of INACDUTRA during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty or from an acute myocardial infarction, a cardiac arrest, or a cerebrovascular accident which occurred during such training. 38 C.F.R. § 3.6 (a). When a claim is based on a period of Reserve or National Guard service, it must be shown that the individual concerned became disabled (or died) as a result of a disease or injury incurred or aggravated in the line of duty (on Reserve ACDUTRA/INACDUTRA or during federalized National Guard service). Smith v. Shinseki, 24 Vet. App. 40 (2010). Otherwise, the period would not qualify as "active military, naval, or air service" and the claimant would not achieve "veteran status" for purposes of that claim. See 38 U.S.C. § 101 (2)-(24). In the service connection context, for example, this means that the presumption of soundness upon entry into service and the presumptive service connection provisions of 38 C.F.R. § 3.307, applicable to active duty, would not apply to ACDUTRA. 38 U.S.C. §§ 1111, 1112, 1137; 38 C.F.R. § 3.307. A member of the National Guard serves in the federal military only when formally called into the military service of the United States. At all other times, a member of the National Guard serves solely as a member of the State militia under the command of a state governor. To have basic eligibility as a veteran based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service (i.e., Federalized). 38 U.S.C. §§ 315, 502, 503; 38 C.F.R. § 3.6 (c), (d); Allen v. Nicholson, 21 Vet. App. 54, 57 (2007). Accordingly, for the appellant's National Guard service, only periods of Federalized service are qualifying service for VA compensation purposes. Claims based on a period of ACDUTRA or INACDUTRA are never entitled to the presumption of service connection outlined in 38 C.F.R. § 3.307 and § 3.309 nor are they entitled to the presumption of aggravation. Smith v. Shinseki, 24 Vet. App. 40 (2010). Appellants who established veteran status for a prior period of service may be entitled to the presumption of soundness for a subsequent period of service under certain conditions. Id. at 45-46. For claims based on aggravation of a pre-existing condition during a period of ACDUTRA or INACDUTRA, the appellant must show that the condition worsened beyond its natural progression during the period of training and that the worsening was caused by the training. Id. at 48. In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. 38 U.S.C. § 5107(a). VA shall consider all information and medical and lay evidence of record. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to service connection for hearing loss 2. Entitlement to service connection for tinnitus The Veteran seeks service connection for hearing loss and tinnitus due to military noise exposure as an infantryman. Impaired hearing is defined as a disability under VA law when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, 4000 Hertz is 40 decibels (dB) or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 38 C.F.R. § 3.385. The threshold for normal hearing is from 0 to 20 decibels; higher threshold levels indicate some degree of hearing loss. Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Initially, the Board notes that a VA examination report in March 2013 showed that the Veteran has a bilateral hearing loss disability as defined by 38 C.F.R. § 3.385. With regards to tinnitus, the Veteran is considered competent to report the presence of tinnitus, and there is no indication from the record that his account of current tinnitus is not credible. See Charles v. Principi, 16 Vet. App. 370, 374 (2002) ("ringing in the ears is capable of lay observation"). Here, a VA examiner in March 2013 indicated that a diagnosis of tinnitus was not appropriate because the Veteran reported a popping sound characteristic of eustachian tube dysfunction, as opposed to tinnitus. A VA examiner in July 2015 also failed to diagnose tinnitus, despite the Veteran's report of experiencing tinnitus, because his hearing could not be tested (CNT) as the Veteran was unable to complete the hearing evaluation. Nonetheless, the discussion below will assume (but not concede) for purposes of argument that the Veteran has tinnitus. Here, the Veteran has specifically reported that he was exposed to acoustic trauma during service from backhoes, dump trucks and firearms. His DD-214 shows that his military occupational specialty (MOS) was infantryman, which corroborates his report of in-service noise exposure. However, the Veteran has not identified any possible acoustic injuries during his Guard or Reserve service. The Veteran's National Guard records show that in reports of medical history in history in August 1984 and March 1985, he denied a history of ear trouble or hearing loss and his hearing was evaluated as normal with no clear threshold shifts. In a report of medical history in June 1998, the Veteran denied a history of hearing loss or ear trouble. An audiological examination in June 1998 showed hearing within normal limits with the puretone thresholds in decibels at the tested frequencies of 500, 1000, 2000, 3000, and 4000 Hertz were 10, 15, 10, and 0, in the left ear; and 5, 15, 5, and 0 in the right ear. Furthermore, the service treatment records provide no evidence of an acoustic injury during service. After service, a March 2012 private audiogram appears to show the puretone thresholds in decibels at the tested frequencies of 3000 and 4000 at 40 to 45 decibels in both ears. On VA examination in March 2013, a VA examiner diagnosed bilateral hearing loss for VA purposes. The examiner noted military noise exposure as an infantryman, including from gunfire, backhoe and dump trucks. The Veteran reported use of hearing protection. The Veteran also endorsed a history of occupational noise exposure as carpenter for 25 years without reported use of hearing protection. The examiner found that the Veteran's bilateral hearing loss was less likely than not related to service, but rather it was causally related to the Veteran's 25 year history of carpentry work without use of hearing protection. Also, service records failed to document a threshold shift during periods of service. An opinion regarding the Veteran's claimed tinnitus was not provided because a diagnosis was not rendered as the Veteran described a popping sound characteristic of eustachian tube dysfunction, as opposed to ringing in the ears such as experienced with tinnitus. On VA examination in July 2015, the examiner was unable to evaluate the Veteran's hearing. The examiner therefore indicated that a medical opinion regarding the etiology of the Veteran's hearing loss and/or tinnitus could not be stated without resorting to speculation because the Veteran was unable to perform audiological testing. The examiner did note that the service treatment records did not show a significant threshold shift during military service and that the Veteran had denied tinnitus in the past. The Board finds the opinion of the VA examiner in March 2013 to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred the current bilateral hearing loss and tinnitus as a result of service. The examiner's findings were based on a review of the evidence, including the service treatment records and examination report, which did not substantiate a finding that the Veteran's bilateral hearing loss and tinnitus are the result of acoustic trauma sustained in service. The examiner considered the complete record and the Veteran's contentions, and provided an explanation as to why the evidence does not support a finding that his current bilateral hearing loss and tinnitus were due to service. Additionally, the VA examiner provided reasoning that is supported by the record and cited to the medical literature in support of the opinions rendered. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302 -04 (2008) (holding that it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion). Accordingly, the opinion is of significant probative value. There is no competent medical evidence that contradicts the VA examiner's opinion. Based on the above, the preponderance of the evidence is against a finding that either the Veteran's claimed hearing loss or tinnitus had onset during service. Notwithstanding, assuming, arguendo, that the Veteran's bilateral hearing loss and tinnitus did have onset during the time period when the Veteran was in the National Guard and/or Reserve service, as he asserts, the Veteran has failed to identify, and the record does not reveal, any acoustic injury occurring during a period of ACDUTRA or INACDUTRA. Accordingly, entitlement to service connection would not follow even if onset of hearing loss or tinnitus during National Guard and/or Reserve service were to be conceded. 38 U.S.C. §§ 101 (2), (22), (24); 38 C.F.R. § 3.6 (a); Donnellan v. Shinseki, 24 Vet. App. 167, 172 (2010); Acciola v. Peake, 22 Vet. App. 320, 324 (2008). Furthermore, the Veteran has not contended, and the evidence does not show, that a preexisting hearing loss or tinnitus disability was aggravated by an injury or disease during a period of ACDUTRA or INACDUTRA. Additionally, the Veteran himself stated he worked as a carpenter for 25 years after his time in service without the use of hearing protection. While the Veteran may genuinely believe that he has hearing loss and tinnitus that are due to service, to the extent he is asserting that he became disabled due to hearing loss or tinnitus during his periods of ACDUTRA, this assertion is contradicted by the service records that document normal hearing in August 1984, March 1985 and June 1998. Consistent with this, he reported no history of, or current, ear trouble or hearing loss. It does not contradict his assertion that he incurred hearing loss and tinnitus while in the National Guard and/or Reserve service. However, this assertion is inadequate to substantiate a service connection claims as it is not tied to any specific period of ACDUTRA or injury incurred during INACDUTRA. Based on the foregoing, because the preponderance of the evidence shows that the Veteran's claimed hearing loss disability and tinnitus are not related to a disease or injury incurred during a period ACDUTRA or an injury during INACDUTRA, the benefit of the doubt doctrine is not applicable to this case. Accordingly, service connection hearing loss and tinnitus are not warranted. See 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 55. 3. Entitlement to service connection for a right knee disability The Veteran has asserted that he injured his right knee in service during basic training. Reportedly, the condition progressively worsened. The question for the Board is whether the Veteran has a current right knee disability is at least as likely as not related to a disease or injury incurred during ACDUTRA service, or related to an injury incurred during INACDUTRA service. The Board concludes that, while the Veteran has a current diagnosis of a right knee arthritis, the preponderance of the evidence weighs against finding that the Veteran's current right knee disability began during ACDUTRA or is otherwise related to an in-service injury (including during ACDUTRA or INACDUTRA service) or disease. 38 U.S.C. §§ 1110, 1112, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); 38 C.F.R. §§ 3.303 (a), (d), 3.307, 3.309(a). The Veteran's service treatment records show that on March 13, 1985, during a period of ACDUTRA, the Veteran was seen for complaints of left knee pain for one week, with no history of injury. Examination of the knee revealed no abnormalities. An assessment of possible chondromalacia was recorded. The service treatment records are silent for complaints of, or treatment for, a right knee injury or a right knee disability. The Veteran claims that the clinician who treated him for knee problems in March 1985 erroneously noted treatment for the left knee when in fact he was treated for his right knee. Even assuming, without conceding, for discussion purposes that the credibility of the Veteran's account of an in-service right knee injury, the record is insufficient to link his current right knee disability to treatment for knee problems in March 1985. On examination on March 28, 1985, just a few days after he was treated for his knee, the Veteran's lower extremities were clinically evaluated as normal. In a report of medical history in June 1998, the Veteran denied a history of "trick" or locked knee and his lower extremities were clinically evaluated as normal. At this point, it is the Veteran himself that provides evidence against his own claim. After service, on VA examination in March 2013, the Veteran reported right knee pain. Examination of the knee failed to show any functional limitations and imaging studies of the right knee were unremarkable. The examiner opined that there was insufficient evidence to warrant or confirm a diagnosis of an acute or chronic right knee/lower leg disorder or residuals thereof. Imaging studies of the knee in 2015 revealed mild right knee arthritis. The Board notes that the first documented evidence of a right knee disability was initially noted 30 years after the Veteran's knee treatment in March 1985. In so noting, the Board recognizes that the mere absence of medical records is not dispositive as to the question of continuity; the lay evidence must be considered as well. See Buchanan v. Nicholson, 451 F.3d at1335. If, however, it is determined based on reliable evidence, that there was an extended period of time after service without any manifestations of the claimed condition, then that tends to weigh against a finding of a connection between the disability and service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). To the extent the Veteran asserted continuity of symptomatology since ACDUTRA, the Board finds such statements inconsistent with the overall record, to include the available service and post service treatment records. Thus, the Veteran did not adequately show that his post-service right knee symptoms continued since March 1985. It is important for the Veteran to understand that the post-service record provides significant evidence against his claim. On the question of a nexus between the current knee disability and service, the evidence is against the claim. On VA examination in July 2015, the Veteran complained of constant right knee pain. He stated that while running in basic training he developed swelling of the right knee. Reportedly, he was taken to the hospital and had the knee drained. His knee did well for about a year following the procedure and then started bothering him again. Following a review of the evidence and an examination of the Veteran, the examiner opined that the Veteran's right knee arthritis was less than likely than not caused by, or related to military service. The examiner noted that the service treatment records were silent regarding any right knee injury or complaints. While there was a single record regarding possible left knee chondromalacia, but subsequent treatment records failed to document any ongoing or chronic right or left knee conditions. Given lack of evidence of any right knee condition during service, and the thirty year gap between March 1985 and the post-service diagnosis of right knee arthritis, it was less than likely that the claimed disability was caused by or related to military service. On VA examination in July 2020, the Veteran reported gradual onset of right knee pain and swelling since an injury incurred while running in basic training. Reportedly, he was taken to the hospital and had the knee was drained. The examiner noted that imaging studies of the right knee in 2013 were unremarkable. Mild degenerative joint disease of the right knee was initially shown in July 2015. Following a review of the claims file and an examination of the Veteran, the examiner opined that the Veteran's right knee arthritis was less likely than not caused by or related to chondromalacia (whether right or left) noted in March 1985. The examiner explained that chondromalacia is a softening and breakdown of the tissue (cartilage on the underside of the kneecap, the patella), whereas degenerative joint disease is a degenerative process involving the bony joints. Therefore, chondromalacia and degenerative joint disease afflict two different anatomical structures that are separately located. Thus, there was no causal relationship between these two conditions as one did not cause the other. Moreover, there was a temporal gap of 30 years (1985-2015) between the chondromalacia noted in ACDUTRA and degenerative joint disease initially documented in 2015. The Board finds the opinion of the VA examiner in 2020 to be highly persuasive and probative in finding that the evidence does not support a conclusion that the Veteran incurred the current right knee during ACDUTRA in March 1985. The examiner's findings were based on a review of the evidence, including the service treatment records and examination, which did not substantiate a finding that the Veteran's right knee disability was incurred during a period of ACTURA or due to injury incurred during INACDUTRA. The examiner considered the complete record and the Veteran's contentions and provided an explanation as to why the evidence does not support a finding that his knee disability was due to service, to include injuries incurred therein. Finally, the VA examiner's opinion was internally consistent and consistent with other evidence of record and is of significant probative value. Accordingly, the VA examiner's opinion is entitled to great probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-304 (2008). Significantly, there is no competent medical opinion of record linking the current right knee disorder to any aspect of the Veteran's National Guard and/or Reserve service. The Board has considered the statements from the Veteran asserting that his right knee arthritis was incurred during ACDUTRA. The Veteran is certainly competent to report as to the observable symptoms he experiences and their history, but he cannot diagnose because of the medically complex nature of such a diagnosis. Layno v. Brown, 6 Vet. App. 465 (1994); Buchanan, 451 F.3d at 1336; See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The ultimate questions in this case are related to an internal medical process which extends beyond an immediately observable cause and effect relationship. Id. Moreover, whether the symptoms the Veteran experienced during ACDUTRA or following service are in any way related to any injuries incurred therein is a matter that requires medical expertise to determine. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his tour in the Persian Gulf, he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). The Board finds that the specific, reasoned opinion of the VA examiner of greater probative weight than the more general lay assertions in this regard. The examiner has training, knowledge, and expertise on which he relied to form the opinion, and the examiner provided rationale for the conclusions reached. As noted, there is no competent medical evidence that supports the claim. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claim, indicating a problem with the right knee that began decades after service with no connection to a period of ACDUTRA or injury incurred during INACDUTRA. Again, it is significant that when the Veteran was examined in March 2013 no right knee pathology was found and x-rays were unremarkable, indicating a problem that had onset after 2013. Based on the foregoing, because the preponderance of the evidence shows that the Veteran's right knee disability is not related to a disease or injury incurred during a period ACDUTRA or an injury during INACDUTRA, the benefit of the doubt doctrine is not applicable to this case, and the claim for service connection for a right knee disability must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. April Snoparsky Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. 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.