Citation Nr: 22014844 Decision Date: 03/15/22 Archive Date: 03/15/22 DOCKET NO. 14-41 504A DATE: March 15, 2022 ORDER Prior to November 6, 2019, entitlement to an increased 30 percent rating for cervical spine degenerative disc disease is granted. From August 1, 2018, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. For the entire appeal period, from the date of the August 29, 2011 claim to November 6, 2019, limitation of motion in the cervical spine more nearly approximates forward flexion limited to 15 degrees or less with consideration of the Veteran's limitation of motion due to pain and flare-ups of pain, fatigue, weakness, and lack of endurance. 2. Prior to August 1, 2018, the Veteran was employed full-time. 3. From August 1, 2018, the Veteran's service-connected rendered him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to November 6, 2019, the criteria for an increased 30 percent rating for cervical spine degenerative disc disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. From August 1, 2018, the criteria for a total disability rating based on a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from July 1976 to July 1980, and from May 1982 to December 1993. He testified before the undersigned Veterans Law Judge at a November 2018 Board hearing. The hearing transcript is of record. In July 2020, the Board granted a 20 percent rating for cervical spine degenerative disc disease from October 20, 2011, and granted a 30 percent rating from November 6, 2019. The Veteran appealed the July 2020 Board decision, only insomuch as it denied a disability rating in excess of 20 percent prior to November 6, 2019. In March 2021, the Court of Appeals for Veterans Claims (CAVC) granted a Joint Motion for Partial Remand (JMPR) and remanded the appeal for a rating in excess of 20 percent for cervical spine degenerative disc disease prior to November 6, 2019 for action consistent with the JMPR. The Veteran raised a claim for a TDIU in conjunction with his claim for an increased rating. The issue of entitlement to a TDIU has been added to the appeal. 1. Entitlement to an increased rating for cervical spine degenerative disc disease The Veteran contends that he is entitled to a 30 percent rating for cervical spine degenerative disc disease for the entire rating period prior to November 6, 2019. The March 2021 JMPR provides that in denying a disability rating in excess of 20 percent prior to November 6th, 2019, the Board did not adequately address when it was factually ascertainable that the Veteran met the criteria for an increased rating. The JMPR also provides that the Board should address whether it can rely on October 2011, June 2014, and March 2018 VA medical examinations in light of the CAVC's decisions in Sharp v. Shulkin, 29 Vet. App. 26 (2017) and Correia v. McDonald, 28 Vet. App. 158 (2016). VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's cervical spine degenerative disc disease is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Diseases and Injuries of the Spine, a 20 percent rating is warranted for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that for the entire appeal period subject to the CAVC remand and JMPR, from the date of the Veteran's August 29, 2011 claim for an increased rating to November 6, 2019, an increased 30 percent rating is warranted for degenerative disc disease of the cervical spine. During an October 2011 VA examination, the Veteran reported almost constant neck pain. He stated that sometimes he needed to take pain pills for the neck pain. He worked in maintenance and took off one to two days a month because of pain in his neck and left ankle. He did not report any incapacitating episodes of neck pain. Motion of his cervical spine was limited to 30 degrees of forward flexion, 25 degrees of extension, 20 degrees of lateral flexion to each side, and 50 degrees of lateral rotation to each side. There was pain in the last 10 degrees in all planes of motion. Repetitive motion did not produce additional limitation of motion due to pain, weakness, fatigue, lack of endurance, or incoordination. VA treatment records dated in 2012 and 2013 reflect ongoing cervical myelopathy. In December 2013 he reported ongoing neck pain. The treating physician noted progressive functional impairment. In April 2014 the Veteran reported progressive cervical pain. A June 2014 VA examination shows that the Veteran reported constant neck pain, worse in the morning and at the end of the day after work. He stated that he worked full time, in maintenance, for the postal service. Motion of his cervical spine was limited to 45 degrees of forward flexion, with pain at 45 degrees, 45 degrees of extension, with pain at 45 degrees, 45 degrees of lateral flexion to each side, with pain at 45 degrees, and 80 degrees of lateral rotation to each side, with pain at 80 degrees. After three repetitions, the ranges of motion remained the same. The Veteran had not had any incapacitating episodes over the past 12 months. In VA treatment in July 2014, the Veteran reported ongoing neck pain, described as 8 out of 10 in intensity. He indicated that he was considering quitting his job because his medical condition was worsening. In April 2015, a clinician found progression of the Veteran's cervical myelopathy symptoms. In November 2015 ongoing cervical myelopathy was noted. In VA treatment in June 2017, MRI of the Veteran's cervical spine showed severe chronic cord compression at C3-C4. The appearance was noted to be unchanged since 2012. In December 2017, the Veteran's treating physician, Dr. M., wrote that his cervical myelopathy was worsening. She expressed the opinion that, because of his neck disability and other disabilities, he should not continue to work In VA treatment in January 2018, the Veteran reported ongoing neck pain. In March 2018, he reported that he used a cane when walking, except at work where it was not allowed. He stated that pain in his neck and low back prevented restful sleep. A clinician found that his cervical myelopathy was worsening. In September 2018, ongoing chronic neck pain was noted. Surgery options were discussed. A March 2018 VA examination shows that the Veteran reported neck pain with motion. The examiner, however, indicated that the Veteran did not report flare-ups of pain. Motion of his cervical spine was limited to 40 degrees of forward flexion, 15 degrees of extension, 25 degrees of lateral flexion to each side, and 70 degrees of lateral rotation to each side. After three repetitions, the ranges of motion remained the same. The examiner reported that pain was noted on examination with extension and right and left lateral flexion, but did not cause functional loss. The Veteran had not had any incapacitating episodes over the past 12 months. The examiner indicated that it would be speculative to say whether pain, weakness, fatigability, or incoordination significantly limited functional ability with repeated use over time, reasoning that there was no conceptual or empirical basis for making such a determination without directly observing function under these conditions. In the November 2018 Board hearing, the Veteran reported severe pain, and pain with motion, in his neck. He stated that he used a particular pillow to support his neck while watching television, a neck brace while using a computer, and a special pillow while sleeping to keep his neck in the only position that allowed sleep. He reported that in any other position neck pain prevented sleep. He stated that in the morning his neck was extremely stiff and very painful. He related that neck pain levels then varied through the day, and according to the effectiveness of pain medications. He reported that during the day he had to lay down again, to recover from increased pain. He related that physicians recommended cervical spine surgery, providing cardiology testing results indicated clearance for surgery. In May 2019, Dr. M. wrote that the Veteran's service-connected disabilities, including his cervical spine disability, PTSD, and dysthymic disorder, made him unable to sustain and maintain gainful employment. In VA treatment in July 2019, a cervical collar was issued to the Veteran. In September 2019 surgery options were discussed again. VA treatment records show that in July 2019, the Veteran was evaluated, measured, and fitted for a soft cervical collar support. On VA examination on November 6, 2019, the Veteran reported neck pain. He stated that he used a neck brace regularly and a cane regularly. He related having flare-ups with increased stiffness of the neck. He stated that in July 2018 falls and neck pain necessitated leaving his employment, which was in building maintenance. Motion of his cervical spine was limited to 15 degrees of forward flexion, 10 degrees of extension, 20 degrees of lateral flexion to each side, and 10 degrees of lateral rotation to each side. There was evidence of pain with motion in each direction. After three repetitions of the motions, fatigue, weakness, and lack of endurance limited the motions to 10 degrees of forward flexion, 10 degrees of extension, 15 degrees of lateral flexion to each side, and 10 degrees of lateral rotation to each side. The examiner found that the pain on motion caused functional loss. There was no evidence of pain with or without weight bearing. Active and passive ranges of motion were the same. The examiner noted that the limitation of motion reduced the Veteran's response time in avoiding a danger, and limited his ability to reach certain areas. The examiner found that the cervical spine disability interfered with sitting and standing, making him need to change positions and stretch intermittently. The examiner found that the cervical spine did not have ankylosis. The examiner stated that the Veteran had not had incapacitating episodes in the past 12 months. The examiner indicated no pain on non-weight bearing and no change in range of motion on with active and passive range of motion. The Board finds that the October 2011 VA examination did not adequately address pain on both active and passive motion or in weight-bearing and non-weight-bearing under Correia, 28 Vet. App. at 158. The examiner, however, did attempt to address the Veteran's flare-ups. See Sharp, 29 Vet. App. at 26. In that regard, during the Veteran's interview, the examiner noted that the Veteran had reported neck pain, which was constant, but he also noted that pain could reach an 8 out of 10 on the pain scale with additional limitation of motion of the neck. The Veteran noted that he sometimes wore a neck collar for pain. The Board finds that this indicates that the Veteran had pain with all range of motion in the cervical spine during these flare-ups. Additionally, while the Veteran had 30 degrees flexion in the neck, the examiner reported that there was pain in the last 10 degrees of motion, therefore, the Veteran had pain at 20 degrees forward flexion. The Board finds that with consideration of the Veteran's forward flexion limited to 20 degrees due to pain, and additional flare-ups of pain, sometimes requiring the use of a neck collar to reduce range of motion in the cervical spine, the Veteran's disability more nearly approximated the criteria for a higher 30 percent rating based on forward flexion limited to 15 degrees. During June 2014 and March 2018 VA examinations, the Veteran reported having constant pain, but did not identify specific flare-ups of pain during examination. Thus, the examiners did not report information regard to the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares as none were reported. Since the Veteran did not report flare-ups, the examination was consistent with Sharp. The June 2014 examination did not adequately address active and passive motion or in weight-bearing and non-weight-bearing under Correia. The June 2014 examination was, thus, inadequate. The March 2018 VA examiner did adequately address the criteria under Correa. In that regard, the examiner determined that passive it was not feasible to perform passive range of motion of the cervical spine as it could not be done in a safe and reasonable manner given the Veteran's disability. Moreover, non-weight bearing tests were not applicable to the cervical spine, but there was no pain when the Veteran was non-weight bearing, specifically when he was at rest. Thus, the examination was adequate. While the October 2011 VA examination was inadequate under Correia and Sharp, the Board finds that it is of some probative value as it indicated a greater degree of limitation of flexion and additional limitations due to flare-ups of pain as the Veteran described occasional use of a neck collar for immobilization. This is in contrast to the greater degree of flexion to 40 degrees with no pain on forward flexion shown on the March 2018 VA examination. Evidence provided during hearing testimony and during the course of the Veteran's VA treatment indicated a greater degree of disability than shown by the March 2018 VA examination, which reported nearly full flexion in the cervical spine without pain on flexion and no flare-ups, inconsistent with the Veteran's report of constant pain during examination, his reports of chronic daily pain during the course of his VA treatment with pain worsening in the evenings, and difficulty with sleep due to pain. November 2018 Board hearing testimony shows that the Veteran reported pain with motion in his neck. He stated that he used a particular pillow to support his neck while watching television, a neck brace while using a computer, and a special pillow while sleeping to keep his neck in the only position that allowed sleep. VA treatment records show that in July 2019, the Veteran was evaluated, measured, and fitted for a cervical collar support. Thus, based on credible contemporaneous evidence, it appears that the Veteran did have worsening pain, or daily flare-ups of pain, where pain was present with all range of motion in the cervical spine. The Board finds that the November 2019 VA examination was adequate and adequate addressed the criteria under both Correia and Sharp. The Veteran reported regular use of a neck brace during the examination. Cervical spine motion was limited to 15 degrees of forward flexion with evidence of pain with motion, and forward flexion was limited to 10 degrees after repetitions of motion. The Board finds, that while there was some worsening in the Veteran's cervical spine disability between the date of the October 2011 VA examination, completed shortly after the Veteran submitted his claim for an increase, the March 2018 VA examination, which showed a greater range of motion in the cervical spine without functional limitations, did not represent actual improvement in the Veteran's condition at that time. When the findings form the October 2011 and November 2019 VA examinations are considered together with findings from the Veteran's VA treatment records and hearing testimony, the Board finds that for the entire appeal period from August 29, 2011, the Veteran's cervical spine range of motion more closely approximates the criteria for the next higher 30 percent rating based on forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine. The Board finds that this includes consideration of the Veteran's daily pain, fatigue, weakness, and lack of endurance, as well as flare-ups requiring the occasional use of a neck collar in 2011, and requiring daily use of a neck collar or other orthopedic support devices in 2019. Resolving all reasonable doubt in favor of the Veteran, the Board finds that for the entire appeal period, a higher 30 percent rating is warranted. The Board finds that the evidence of record persuasively weighs against a rating in excess of 30 percent for cervical spine degenerative disc disease. The Board acknowledges the Veteran's lay reports of symptoms, and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by flare-ups requiring use of a neck collar would not result in symptoms more nearly approximating unfavorable ankylosis of the entire cervical spine. In that regard, VA examinations show that the Veteran had active range of motion in the spine; the spine was not shown to be in fixation at any time, and while some degree of immobilization was helpful in reducing pain during flare-ups, the Veteran's spine was not fixed in an unfavorable position at any time during the appeal period. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 30 percent for cervical spine degenerative disc disease. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, the Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. VA examinations show that the Veteran did not have incapacitating episodes requiring prescribed bed rest. Finally, the Board finds that it is not factually ascertainable that an increase in the severity of the Veteran's cervical spine disability occurred in the one-year period prior to the August 2011 claim. With respect to claims for increased ratings, if the increase in the severity of the disability is factually ascertainable within one year prior to the receipt of the claim, the earliest effective date of the rating is the date the increase in severity was factually ascertainable. 38 C.F.R. § 3.400 (o). VA treatment records showed that the Veteran continued to receive treatment for compressive cervical myelopathy, for which he was already service connected for, with continuing complaints chronic neck pain in the one-year period prior to submission of his claim. However, VA treatment records did not include any range of motion testing or other evidence to indicate that an increase in disability had occurred during his time. Thus, the Board finds that it is not factually ascertainable that an increase in the severity of the Veteran's cervical spine disability occurred in the one-year period prior to the August 2011. Regarding neurological impairment, the Veteran has already been granted service connection and rated for hyperreflexia of the left upper extremity, and paralysis and incomplete tetraplegia of the left side associated with his cervical spine disability, these ratings were not appealed in the JMPR, and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. 2. Entitlement to a TDIU from August 1, 2018 A TDIU may be assigned, where the schedular rating is less than total, where a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 (a). To qualify for schedular consideration of a TDIU, if there is only one such disability, this disability shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. Id. The phrase "unable to secure and follow a substantially gainful occupation" contains both economic and noneconomic components. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Id. The noneconomic component requires a determination as to a veteran's ability to secure and follow such employment. Id. Attention should be given to the veteran's history, education, skills, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the types of activities required by the occupation at issue (e.g., lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (e.g., memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Id. An award of TDIU is an individualized determination, specific to a veteran's particular circumstances, e.g., their history, education, skills, and training. See Todd v. McDonald, 27 Vet. App. 79, 85 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The ultimate question is whether they are capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran is in receipt of a 70 rating for posttraumatic stress disorder (PTSD), a 30 percent rating for degenerative disc disease of the cervical spine, a 20 percent rating for left ankle capsulitis; a 10 percent rating for GERD, a 10 percent rating for hyperflexia of the left upper extremity, a 10 percent rating for left knee patellofemoral syndrome, a 10 percent rating for tinnitus, and noncompensable ratings for erectile dysfunction, paralysis and incomplete tetraplegia of the left side, and hearing loss. He has a combined 90 percent rating. Thus, he met the schedular criteria for a TDIU for the entire rating period. The record shows that prior to August 1, 2018, the Veteran was employed full-time. SSA records indicate that he became totally disabled from work as of August 1, 2018. The Veteran reported in February 2022 that he last worked in July 2018 as a mechanic for the United States Postal Service. He reported that he stopped working due to pain and exhaustion due to service-connected disabilities and he described symptoms of PTSD which contributed to his unemployability. Prior to that, he had a 40-hour work week, but the Veteran indicated in the February 2022 statement that he typically used about five hours of sick time a week in 2018 to leave early because of pain and weakness in the neck. The Board finds, nonetheless, that prior to August 2018, even with consideration of the Veteran's use of sick leave, he was working an average of 35 hours a week and his SSA earring record shows that he was earning well above the poverty threshold for one person during this time. The Board finds that prior to August 1, 2018, the evidence does not show that the Veteran was unable to secure or follow gainful or more than marginal employment due to service-connected disability as he was gainfully employed during. Therefore, prior to August 1, 2018, a TDIU is not warranted. The weight of the evidence shows that from August 1, 2018, the Veteran was not able to secure or follow gainful or more than marginal employment due to service-connected disabilities and entitlement to a TDIU is warranted from that date. The Veteran's ability to secure and follow a substantially gainful occupation was impacted by the physical effects of his service-connected cervical spine disability, left upper extremity neurological impairment, left knee and ankle disabilities, and his PTSD. He has been in receipt of Social Security disability benefits since August 1, 2018. A SSA residual functional capacity assessment shows that due to the Veteran's service-connected spine disability, an acquired psychiatric disorder, and exertional limitations attributed to degenerative disc disease of the cervical spine and limits to standing, walking, and carrying, he was unemployable and there were not a sufficient number of jobs in the national economy that the Veteran could transfer to. Moreover, the Veteran's VA treating physician recommended in December 2017 that the Veteran stop working due to his disabilities, and in a May 2019 letter, she opined that the Veteran's service-connected rendered him unable to sustain and maintain gainful employment. (Continued on the next page) An SSA residual functional capacity assessment completed by a physician, medical opinions from the Veteran's treating physician, and lay evidence shows that from August 1, 2018, the Veteran was no longer able to work due to his service-connected disabilities. Given the forgoing, the Veteran's service-connected disabilities precluded him from securing and following substantially gainful occupation consistent with his education, skills, training, and work history. Thus, for the entire appeal period from August 1, 2018, entitlement to a TDIU is granted. K. Parakkal Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christine C. Kung 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.