Citation Nr: 22016014
Decision Date: 03/21/22	Archive Date: 03/21/22

DOCKET NO. 16-15 627A
DATE: March 21, 2022

ORDER

Entitlement to ratings higher than 10 percent for bilateral (left and right foot) hallux rigidus is denied.

Entitlement to a compensable rating for bilateral gout of the great toes is denied.

Entitlement to a rating higher than 30 percent for hypertensive heart disease with bundle branch block is denied.

Entitlement to a compensable rating for sinusitis is denied.

Entitlement to ratings higher than 10 percent for bilateral (left and right knee) patellofemoral syndrome is denied.

Entitlement to a compensable rating for a right eye corneal scar is denied.

Entitlement to a compensable rating for bilateral eye pinguecula with arcus senilis and conjunctivitis is denied.

 

REMANDED

Entitlement to service connection for a respiratory disability is remanded.

Entitlement to service connection for neuropathy of the lower extremities is remanded.

Entitlement to service connection for a left ankle disability is remanded.

FINDINGS OF FACT

1. The Veteran's has separate 10 percent ratings for his left right foot hallux rigidus, which are the maximum permissible schedular ratings for this disability and concession that it is severe; it is not shown this disability is so exceptional or unusual that the symptoms and impairment owing to it are not contemplated by these schedular ratings.

2. For the entire period on appeal, the Veteran has not experienced any symptoms and consequent impairment attributable to the gout of his great toes (big toes).

3. He has not experienced more than one episode of acute congestive heart failure in the past year; the evidence also does not show that he cannot manage a workload of greater than 3 metabolic equivalents (METs) but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or that he has left ventricular dysfunction with an ejection fraction of 30 to 50 percent.

4. During the appeal period, he has not had one to two incapacitating episodes of sinusitis per year requiring prolonged antibiotic treatment or three to six non-incapacitating episodes per year characterized by headaches, pain, and purulent discharge or crusting or a history of sinus surgery.

5. For the period on appeal, the patellofemoral syndrome of his knees has caused chronic pain but has not resulted in his flexion limited to 30 degrees or less.

6. His right eye corneal scar does not cause loss of visual acuity to less than 20/40, diplopia, or impairment of visual field; it also has not resulted in prescription of bed rest of two weeks or more and did not require at least five treatment visits during a 12-month period as of May 13, 2018.

7. His bilateral eye pinguecula with arcus senilis and conjunctivitis are not characterized by any disfigurement.

CONCLUSIONS OF LAW

1. The criteria are not met for initial ratings higher than 10 percent for the bilateral (left and right foot) hallux rigidus  including on an extra-schedular basis.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.71a, Diagnostic Code (DC/Code) 5281.

2. The criteria are not met for entitlement to an initial compensable rating for the gout of the great toes. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, DCs 5002, 5003, 5017

3. The criteria are not met for an initial rating higher than 30 percent for the hypertensive heart disease with bundle branch block. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, DC 7007.

4. The criteria are not met for entitlement to an initial compensable rating for the sinusitis. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.07, DC 6513.

5. The criteria are not met for entitlement to initial ratings higher than 10 percent for the bilateral (left and right knee) patellofemoral syndrome. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DCs 5003, 5010, 5260, and 5261.

6. The criteria are not met for entitlement to a compensable rating for the right eye corneal scar. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.25, 4.75-4.79, DC 6009.

7. The criteria are not met for entitlement to a compensable rating for the bilateral eye pinguecula with arcus senilis and conjunctivitis. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.25, 4.75-4.79, DCs 6037, 7800.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the military from August 1983 to August 2012.  His DD Form 214 indicates he served in the Southwest Asia theater of operations during the Persian Gulf War (PGW) and received, among other medals and commendation, the Combat Action Badge. 

In June 2019, the Board remanded these claims back to the local Regional Office (RO), so back to the Agency of Original Jurisdiction (AOJ), for further development and consideration that especially included obtaining all outstanding private and VA treatment records and then having the Veteran examined for medical nexus opinions concerning the etiologies of his disabilities not yet determined to be service connected and to reassess the severity of those that have been attributed to his service.

There since has been the required compliance  certainly the acceptable substantial compliance, with those remand directives, at least as concerning the claims for higher ratings for the disabilities already determined to be service connected. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). 

Regrettably, still more development is required regarding the claims for service connection, so the Board is again remanding them.

Increased Ratings

Disability evaluations are determined 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 Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

When the evidence contains factual findings showing distinct time periods during which the service-connected disability exhibits symptoms that would warrant different evaluations, the assignment of "staged" ratings is appropriate  irrespective of whether an initial or established rating. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

1. Entitlement to ratings higher than 10 percent for bilateral hallux rigidus

This disability is rated under 38 C.F.R. § 4.71a, DC 5281, which specifically concerns unilateral hallux rigidus, and since the Veteran already has separate 10 percent ratings for each foot, there already is concession this disability is "severe" and affects both feet (more specifically, each big toe).  DC 5281 instructs to rate the hallux rigidus as severe hallux valgus, meaning under DC 5280 and as 10-percent disabling, also that the rating is not to be combined with claw foot ratings. 38 C.F.R. § 4.71a, DC 5281.  According to DC 5280, for severe hallux valgus, a maximum 10 percent rating is warranted for operation with resection of the metatarsal head, also if equivalent to amputation of the great toe.  38 C.F.R. § 4.71a, DC 5280.

As the Veteran already has the highest permissible schedular rating under those DCs (5280 and 5281), he may only receive a greater rating if available under some other DC that is applicable or on an extra-schedular basis under the special provisions of 38 C.F.R. § 3.321(b)(1).

 

To this end, the Board also has considered the other DCs pertaining to the feet.  Other disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability  else, this would contravene VA's anti-pyramiding regulation, 38 C.F.R. § 4.14.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); see also Lyles v. Shulkin, 29 Vet. App. 107 (2017).  In Scott v. Wilkie, the Federal Circuit Court expressly adopted the Court's holding that disabilities specifically listed in the Rating Schedule may only be rated under DCs that specifically pertain to them.  Scott v. Wilkie, 920 F.3d 1375 (Fed. Cir. 2019) (citing Copeland v. McDonald, 27 Vet. App. 333, 336 (2015)).  The Federal Circuit Court also expressly adopted the Court's holding that unlisted conditions may be rated by analogy to DCs that may not describe the unlisted disability but address disabilities that may be productive of similar symptoms.  Scott, 920 F.3d 1375 (citing Yancy v. McDonald, 27 Vet. App. 484, 493 (2016)).  Finally, the Federal Circuit Court concluded that the Board must also consider assigning separate ratings under analogous DCs, when rating an unlisted service-connected foot disability exhibiting distinct manifestations, even when service connection also has been granted for one of the eight conditions listed in the Rating Schedule.  Id.  

Here, though, as already mentioned, the Veteran's disability (hallux rigidus) is specifically listed in the Rating Schedule and, therefore, cannot be rated under any other DC  meaning other than DC 5280 since DC 5281 refers the adjudicator to this other DC.    

Moreover, it is not shown this disability is so exceptional or unusual as to in turn render impractical application of the regular Rating Schedule standards. In other words, the Board is not obligated to refer this claim to the Director of the Compensation Service for extra-schedular consideration under the special provisions of 38 C.F.R. § 3.321(b)(1). See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). 

 

2. Entitlement to a compensable rating for the gout of the great toes

This gout is rated as 0-percent disabling (so noncompensable) under 38 C.F.R. § 4.71a, DC 5002-5017. Hyphenated DCs are used when the rating under one DC requires use of an additional DC to explain the basis of the evaluation. See 38 C.F.R. § 4.27.

The Veteran, however, contends a compensable rating is warranted since this existing rating does not contemplate the extent of his symptoms and consequent functional impairment. In support of this assertion, he submitted a written statement in May 2016 indicating this disability had worsened. But along this line, it first must be remembered that the pain he experiences in his big toes (owing to his bunions) already is being compensated in the separate 10 percent ratings he already has for the hallux rigidus of each foot. So, to again compensate him for this same symptom and consequent functional impairment would violate VA's anti-pyramiding regulation  38 C.F.R. § 4.14. See also 38 C.F.R. § 4.71a, DC 5003; Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); Burton v. Shinseki, 25 Vet. App. 1 (2011); and DeLuca v. Brown, 8 Vet. App. 202 (1995).

Moreover, pursuant to the Board's June 2019 remand directive, the Veteran since has had additional VA examinations in July and September 2021 reassessing the severity of his disabilities. The Board sees that he was seen for foot pain and tenderness several years ago, in November 2012, but instead because of a service-connected right ankle sprain  albeit during which time he was found to have arthritis and plantar fasciitis. However, his plantar fasciitis is not an adjudicated service-connected disability, and, although his right ankle arthritis is, he already is being separately compensated for it under DC 5003-5271. 

In contrast, as already mentioned, hyphenated DC 5002-5017 is used for rating the Veteran's gout; DC 5017 specifically concerns gout, whereas DC 5002 concerns rheumatoid arthritis (atrophic) and is rated as an active process.

According to the version of the Rating Schedule in effect before February 7, 2021, diseases rated under DCs 5013 through 5024 are to be rated based on limitation of motion of the affected parts as degenerative arthritis (DC 5003), except for gout, which instead as mentioned is rated under DC 5002. 

According to DC 5002, rheumatoid arthritis (atrophic) is rated either as an active process or for chronic residuals. As an active process, gout warrants a 20 percent rating when there are one or two exacerbations a year in a well-established diagnosis. This Code further explains that, for chronic residuals such as limitation of motion or ankylosis (favorable or unfavorable), they are rated under the appropriate DCs for the specific joint or joints involved. When, however, the limitation of motion of the specific joint or joints involved is noncompensable (meaning 0-percent disabling) under those DCs, a rating of 10 percent is for application for each such major joint or group of joints affected by limitation of motion, to be combined, not added under DC 5002. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. The note following DC 5002 instructs that the ratings for the active process will not be combined with the residual ratings for limitation of motion or ankylosis. The higher rating should be assigned. Id.

Effective February 7, 2021, gout is rated under to DC 5003. DC 5003 provides that arthritis that is established by X-ray findings will be rated based on limitation of motion under the appropriate DCs for the specific joint or joints involved. When there is no limitation of motion of the specific joint or joints that involve degenerative arthritis, DC 5003 provides a 20 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups, with occasional incapacitating exacerbations, and a 10 percent rating for degenerative arthritis with X-ray evidence of involvement of 2 or more major joints or 2 or more minor joint groups. Note (1) explains that the 20 percent and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. Note (2) provides that the 20 percent and 10 percent ratings based on X-ray findings will not be utilized in rating conditions listed under DCs 5013 to 5024, inclusive.

Turning now to the relevant medical and lay evidence, the Veteran as mentioned was provided VA examinations in July 2021 and several years earlier, in October 2012. During his October 2012 VA examination, he reported having gout in his great toes (big toes) since 2010  but he was not then currently taking any medication for this condition or experiencing any associated symptoms. 

In July 2021, he also reported not experiencing any symptoms because of his gout, including any limitation of motion, such as owing to pain or anything else. Similarly, he also indicated that he did not have exacerbations that were incapacitating. 

Consequently, because the Veteran has not reported experiencing any symptoms associated with his gout, the Board finds a compensable rating unwarranted. In denying any higher rating, the Board finds the benefit of the doubt doctrine is not applicable because there is not an "approximate" (nearly equal) balance of evidence for versus against this claim. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. See also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

3. Entitlement to a rating higher than 30 percent for the hypertensive heart disease with bundle branch block

This disability is rated under 38 C.F.R. § 4.104, DC 7007, which specifically concerns hypertensive heart disease. 

According to DC 7007, a 30 percent rating is assigned when a workload of greater than 5 METs (metabolic equivalents) but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray.  A higher 60 percent rating is assigned when there is more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent.

 

One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used.

The Veteran was provided VA examinations in September 2012 and more recently in December 2020. The examiners confirmed his diagnosis of heart block and hypertensive heart disease. In 2012, he did not require continuous medication but has in the past had congestive heart failure  although neither chronic heart failure nor episodes of acute heart failure were noted in the past year.  He was found to have a workload of 7 METs during a stress test, which resulted in fatigue. Normal ventricular size and function was found, with an ejection fraction of 55 percent. 

During the more recent December 2020 evaluation, the Veteran again was found to have a left ventricular ejection fraction of 55 percent. An interview based METs test determined he had a workload of between 5 and 7 METs, with dyspnea and angina. He was not found to have congestive heart failure. 

This medical evidence fails to show that the 60 percent criteria or higher are met under DC 7007. During the review period under consideration, the Veteran has not had a workload of greater than 3 METs but not greater than 5 METs causing relevant symptoms, nor has he had left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Further, he never has had an incident of acute heart failure. Therefore, the medical evidence of record does not support assignment of a higher 60 percent rating.

The Board also has considered other potentially applicable DCs. But the Veteran has not received diagnoses of any other cardiac disabilities that are contemplated by the DCs pertinent to heart conditions. 

 

In denying any higher rating, the Board finds the benefit of the doubt doctrine is not applicable because there is not an "approximate" (nearly equal) balance of evidence for versus against this claim. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. See also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

4. Entitlement to a compensable rating for the sinusitis

This disability is rated under 38 C.F.R. § 4.97, DC 6513, as chronic maxillary sinusitis.

This is part of a General Rating Formula  DC 6510 (pansinusitis), 6511 (ethmoid sinusitis), 6512 (frontal sinusitis), 6513 (maxillary sinusitis), and 6514 (sphenoid sinusitis).

This General Rating Formula provides a 0 percent (noncompensable) rating for sinusitis that is detected by X-ray only. A 10 percent rating is assigned for one or two incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; three to six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 10 percent evaluation is warranted where there are 1 or 2 incapacitating episodes per year of sinusitis requiring prolonged (lasting 4 to 6 weeks) antibiotic treatment, or 3 to 6 non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. A 30 percent rating is assigned for three or more incapacitating episodes per year of sinusitis requiring prolonged (lasting four to six weeks) antibiotic treatment, or; more than six non-incapacitating episodes per year of sinusitis characterized by headaches, pain, and purulent discharge or crusting. The maximum 50 percent rating is assigned following radical surgery with chronic osteomyelitis, or; near constant sinusitis characterized by headaches, pain and tenderness of affected sinus, and purulent discharge or crusting after repeated surgeries. A Note in this General Rating Formula explains that an incapacitating episode of sinusitis means one requiring bed rest and treatment by a physician. Id.

 

The Veteran was provided VA examinations in August 2012 and more recently in December 2020. During that more recent examination, he reported having a runny nose with watery eyes that has not improved since his service. He has reported taking continuous medication for his chronic sinusitis, including Claritin and various nasal sprays. His evaluation and treatment records, however, are grossly unremarkable for any non-incapacitating or incapacitating episodes. Consequently, a compensable rating is not warranted. In denying any higher rating, the Board finds the benefit of the doubt doctrine is not applicable because there is not an "approximate" (nearly equal) balance of evidence for versus against this claim. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. See also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

5. Entitlement to a rating higher than 10 percent for the bilateral (left and right knee) patellofemoral syndrome

This disability is rated under DC 5260, so based on the extent there is limitation of motion on flexion of the knees.  DC 5261 concerns limitation of motion in the other direction, i.e., on extension of the knees. 

A review of the evidence shows the Veteran's bilateral patellofemoral syndrome has manifested as osteoarthritis (described during his January 2017 VA examination as "mild narrowing of the bilateral medial compartment"). 

DC 5010 concerns arthritis due to trauma, i.e., post-traumatic arthritis and instructs to rate it as degenerative arthritis (hypertrophic or osteoarthritis) under DC 5003. And, according to DC 5003, degenerative arthritis established by X-ray findings, in turn, will be rated based on limitation of motion under the appropriate DC(s) for the specific joint or joints involved  which, in this instance, since involving the knee, as mentioned are DC's 5260 (for limitation of flexion) and DC 5261 (for limitation of extension). When the limitation of motion of the specific joint or joints involved is 0-percent disabling (noncompensable) under the appropriate DCs, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id.

Effective February 7, 2021, DC 5010 (again, for post-traumatic arthritis) indicates the disability is to be rated based on limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with 38 C.F.R. § 4.25.

According to DC 5260, a 0 percent (noncompensable) rating is warranted for flexion limited to 60 degrees.  A 10 percent rating is warranted for flexion limited to 45 degrees.  A 20 percent rating is warranted for flexion limited to 30 degrees.  A 30 percent rating is warranted for flexion limited to 15 degrees. 

According to DC 5261, a 0 percent (noncompensable) rating will be assigned for limitation of extension to 5 degrees; a 10 percent rating will be assigned for limitation of extension to 10 degrees; a 20 percent rating will be assigned for limitation of extension to 15 degrees; a 30 percent rating will be assigned for limitation of extension to 20 degrees; a 40 percent rating will be assigned for limitation of extension to 30 degrees; and a 50 percent rating will be assigned for limitation of extension to 45 degrees.

To give this some context, consider that normal range of motion of the knee is from 0 degrees of extension (full extension) to 140 degrees of flexion (full flexion). See 38 C.F.R. § 4.71, Plate II.

VA's General Counsel has held that separate ratings are permissible under DC 5260 (limitation of flexion) and DC 5261 (limitation of extension) for disability of the same joint. See VAOPGCPREC 9-2004 (September 17, 2004).

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.").

According to 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."  

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 Veteran was provided VA examinations in January 2017 and December 2020. He reported experiencing pain due to wear and tear from running in combat boots. He did not report injections or surgeries. He described his flare-ups as a combination of wear and tear that prevents him from running as he previously had been able to. During the January 2017 evaluation, his flexion was to 135 degrees, bilaterally, so just shy of the normal range to 140 degrees.  Notably, he reported occasionally wearing a knee brace for stability, which the Board interprets as claiming he at least occasionally has bilateral knee instability.

VA's General Counsel has held that a claimant who has arthritis and instability of the knee may be rated separately under DCs 5003 and 5257, respectively, while cautioning that any such separate rating must be based on additional disabling symptomatology. See VAOPGCPREC 23-97 (July 1, 1997; revised July 24, 1997); VAOPGCPREC 9-98 (August 14, 1998).

The U. S. Court of Appeals for Veterans Claims (Veterans Court/CAVC) also has clarified that VA adjudicators cannot categorically favor medical evidence over lay evidence when determining whether a knee is unstable. See English v. Wilkie, 30 Vet. App. 347, 349 (2018). That said, the Board may give more credence to an objective medical finding of no instability  provided there is sufficient explanation.

During his December 2020 VA examination, the Veteran again complained of painful motion. Specifically, he indicated progressive knee pain on standing, walking, and bending. He did not report any then current treatment. With regards to flare-ups, he cited pain during rainy weather and prolonged standing approximately 2 to 3 times per week with a severity of 8/10 lasting approximately 1-2 hours. However, range of motion measurements were noted to be normal for both flexion and extension.  Objective evidence of pain with weight bearing was observed, as was crepitus, but no additional loss of function or range of motion was detected after repetitive-use testing. Pain, weakness, fatigability, and incoordination were said to cause additional limited functional ability with repeated use, resulting in a reduction of extension and flexion bilaterally to 130 degrees. But even accepting that as true, that is still nearly normal flexion and far exceeds the degree of limitation of flexion required for even the most minimum 0 percent (noncompensable) rating under DC 5260 since flexion would have to be limited to a little more than half of that, i.e., to just 60 degrees. Therefore, it certainly cannot be said the Veteran has the required limitation for an even greater 10 percent rating (flexion limited to 45 degrees) or 20 percent rating (flexion limited to 30 degrees), and this is true even in the worst-case circumstance during prolonged or repeated use of his knees or flare ups.

Further regarding flare-ups, the Veteran reported functional loss in the form of pain and limitation of flexion to 120 degrees, but, again, that still far exceeds what is required for even a 0 percent rating under DC 5260. On passive range of motion testing, there was no evidence of pain, but, again, not sufficient limitation of motion as a result or consequence.  Moreover, knee stability testing also was performed, and it was determined he had normal knee stability, so no instability. 

 

Consequently, the Board finds that the evidence of record persuasively weighs against ratings higher than 10 percent for the Veteran's left and right knee patellofemoral syndrome or for any additional ratings for instability. Also, because his extension always has been to 0 degrees, so normal, he cannot receive a separate or additional rating for that.

As the Court explained in Mitchell, although painful motion is entitled to a minimum 10 percent rating under Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991), when read together with DC 5003 concerning arthritis (and by extension Burton even the disability does not necessarily involve arthritis), it does not follow that the maximum rating is warranted under the applicable DC pertaining to range of motion simply because pain is present throughout the range of motion. See id. The Court has held that 38 C.F.R. § 4.40 does not require a separate rating for pain, rather, provides guidance for determining ratings under other DCs assessing musculoskeletal function. See Spurgeon v. Brown, 10 Vet. App. 194 (1997).

The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, especially during repetitive use over time and flare-ups. But, again, that, alone, is not reason to assign higher ratings or separate ratings. The Board also acknowledges his reports of occasional knee instability requiring a knee brace. However, even considering his lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by his statements that his pain during flare-ups and occasional instability would not result in limitation of motion or disability aside from that more nearly approximating flexion limited to 30 degrees or less or other impairment entitling him to any additional compensation.  

The Board also has considered the other DCs pertaining to the knee and leg  including the "meniscal codes" (DCs 5258 and 5259) since they, too, may provide grounds for additional compensation, such as in the way of separate ratings.  See Lyles v. Shulkin, 29 Vet. App. 107 (2017). But other disability ratings only may be assigned if the symptomatology and consequent impairment are not duplicative or overlapping with the symptomatology of any other disability, else, this would contravene VA's anti-pyramiding regulation  38 C.F.R. § 4.14.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

But there is no probative indication of additional symptoms or impairment, meaning other than already being compensated, to in turn warrant rating this disability under other DCs.

In conclusion, then, the Board finds that the evidence of record persuasively weighs against the Veteran's claims for ratings higher than 10 percent for his bilateral (left and right knee) patellofemoral syndrome.  In denying any higher ratings, the Board finds the benefit of the doubt doctrine is not applicable because there is not an "approximate" (nearly equal) balance of evidence for versus against these claims. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. See also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

6. Entitlement to a compensable rating for the right eye corneal scar

7. Entitlement to a compensable rating for the bilateral eye pinguecula with arcus senilis and conjunctivitis

During the pendency of this appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye. 89 Fed. Reg. 15316 (Apr. 10, 2018). The final rule went into effect May 13, 2018. When there is a change in the rating criteria during the pendency of an appeal, the Board must consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003).

The Veteran's bilateral eye pinguecula with arcus senilis and conjunctivitis is rated as 0-percent disabling (noncompensable) under 38 C.F.R. § 4.79, DC 6037, which specifically concerns pinguecula.  DC 6037 instructs to evaluate pinguecula based on disfigurement (DC 7800). There has been no amendment to DC 6037.

 

DC 7800 concerns burn scar(s) of the head, face, or neck; scar(s) of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck. VA amended the criteria for rating skin disabilities effective from August 13, 2018.  However, DC 7800 was not changed by the August 13, 2018, amendments.

According to DC 7800, one characteristic of disfigurement warrants a 10 percent rating.  A scar with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement warrants a 30 percent rating.  A scar with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement warrants a 50 percent rating.  A scar with visible or palpable tissue loss and either gross distortion of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement warrants an 80 percent rating.  

Note (1) to DC 7800 list the eight characteristics of disfigurement: 1) a scar 5 or more inches in length; 2) a scar at least one-quarter inch wide at widest part; 3) surface contour of scar elevated or depressed on palpation; 4) scar adherent to underlying tissue; 5) skin hypo- or hyper-pigmented in an area exceeding six square inches; 6) skin texture abnormal in an area exceeding six square inches; 7) underlying soft tissue missing in an area exceeding six square inches; and, 8) skin indurated and inflexible in an area exceeding six square inches. 

Treatment records and the reports of the Veteran's August 2012 and more recent December 2020 VA examinations do not contain any indication or evidence that his bilateral eye pinguecula with arcus senilis and conjunctivitis has a characteristic of disfigurement.

The earlier August 2012 examiner noted that the surface contour of the Veteran's corneal scar was elevated or depressed on palpitation. The examiner further noted, however, that the scar was not visually significant (as in not visible to the naked eye) and did not affect the Veteran's activities. Consequently, the Board finds a compensable evaluation also unwarranted for the Veteran's corneal scar.  

The Veteran currently has a 0 percent (so noncompensable) rating for his right eye corneal scar under DC 6009. 

DC 6009 applies to an unhealed eye injury. Under the former criteria, DC 6009 instructed to evaluate pursuant to the General Rating Formula for DCs 6000 through 6009. Under the revised criteria, DC 6009 instructs to evaluate pursuant to the General Rating Formula for Diseases of the Eye.

The General Rating Formula for DCs 6000 through 6009 instructs to evaluate based on either visual impairment due to the particular condition or on incapacitating episodes, whichever results in a higher evaluation. When incapacitating episodes have a total duration of at least 1 week, but less than 2 weeks, during the past 12 months, a 10 percent rating is warranted. When incapacitating episodes have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, a 20 percent rating is warranted. When incapacitating episodes have a total duration of at least 4 weeks, but less than 6 weeks, during the past 12 months, a 40 percent rating is warranted. When incapacitating episodes have a total duration of at least 6 weeks during the past 12 months, a 60 percent rating is warranted. A Note in this General Rating Formula indicates that, for VA compensation purposes, an incapacitating episode is a period of acute symptoms severe enough to require prescribed bed rest and treatment by a physician or other healthcare provider.

The General Rating Formula for Diseases of the Eye instructs to evaluate based on either visual impairment due to a particular condition or on incapacitating episodes, whichever results in a higher evaluation. When there are documented incapacitating episodes requiring at least 1 but less than 3 treatment visits for an eye condition during the past 12 months, a 10 percent rating is warranted. When there are documented incapacitating episodes requiring at least 3 but less than 5 treatment visits for an eye condition during the past 12 months, a 20 percent rating is warranted. When there are documented incapacitating episodes requiring at least 5 but less than 7 treatment visits for an eye condition during the past 12 months, a 40 percent rating is warranted. Whn there are documented incapacitating episodes requiring 7 or more treatment visits for an eye condition during the past 12 months, a 60 percent rating is warranted. Note (1) indicates that, for the purposes of evaluations under 38 C.F.R. § 4.79, an incapacitating episode is an eye condition severe enough to require a clinic visit to a provider specifically for treatment purposes. Note (2) indicates that examples of treatment may include but are not limited to: systemic immunosuppressants or biologic agents; intravitreal or periocular injections; laser treatments; or other surgical interventions.

The evaluation of visual impairment is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function. 38 C.F.R. § 4.75(a) under both the former and revised criteria. The amendments made no substantive changes to how visual acuity is rated. With regards to visual field and muscle function examinations, the use of a Goldmann's chart is no longer required. There are otherwise no substantive changes to how those types of visual impairment are rated.

Evaluation of visual acuity is based on corrected distance vision with central fixation. 38 C.F.R. § 4.76(b)(1). The measurements for each eye are applied to the table for Impairment of Central Visual Acuity. Generally, the table is divided into steps corresponding to different levels of visual acuity for one eye, and each step is further divided into subsections of visual acuity for the other eye, with corresponding ratings. Where a reported visual acuity is between two sequentially listed visual acuities, the visual acuity which permits the higher evaluation will be used. 38 C.F.R. § 4.76(c).

In any case where an examiner reports that there is a difference equal to two or more scheduled steps between near and distance corrected vision, with the near vision being worse, the examination report must include at least two recordings of near and distance corrected vision and an explanation of the reason for the difference. In these cases, evaluation will be based on corrected distance vision adjusted to one step poorer than measured. 38 C.F.R. § 4.76(b)(3).

Evaluation of visual field is based on the remaining field of vision in each eye. 38 C.F.R. § 4.77. The table of Ratings for Impairment of Visual Fields provides ratings for visual field loss. The first half of the table provides ratings based on loss of an entire half of field of vision in an eye. The second half of the table provides ratings based on the average concentric contraction of the visual field of each eye. Evaluation of visual field is based on the remaining field of vision in each eye. 38 C.F.R. § 4.79.

To determine the evaluation for visual impairment when both decreased visual acuity and visual field defect are present in one or both eyes and are service connected, separately evaluate the visual acuity and visual field defect (expressed as a level of visual acuity) and combine them under the provisions of 38 C.F.R. § 4.25. 38 C.F.R. § 4.77(c).

Evaluations of visual impairment of muscle function is based on the degree of diplopia. 38 C.F.R. § 4.78.

On VA examination in both August 2012 and more recently in December 2020, visual acuity testing showed the Veteran to have 20/40 or better corrected distance and near vision bilaterally. There are no other records indicating more severe visual impairment. As such, a rating for impairment of visual acuity is not warranted.

There also is no medical evidence, and the Veteran has not contended, that he experiences diplopia. Therefore, a rating for impairment of muscle function is not warranted.

Visual field testing on VA examination in August 2012 and December 2020 shows the Veteran does have impairment of his visual field attributable to his service-connected eye conditions. While treatment notes from September 2015 indicate he had received a glaucoma diagnosis (for his right eye at minimum) and resultantly is being treated for this condition, treatment notes also indicate he was experiencing a visual field defect of the nasal step, also in his right eye in September 2015, but this was attributed by his evaluating ophthalmologist to glaucoma that is not an adjudicated service-connected disability. It therefore cannot serve as grounds or reason for increasing the rating for his service-connected eye disabilities.

The Veteran applied for service connection for glaucoma; however, his claim was denied in an April 2013 decision. This same decision conversely granted service connection for his corneal scar and bilateral eye pinguecula with arcus senilis and conjunctivitis. He did not appeal the denial of glaucoma, only instead his noncompensable ratings for his corneal scar and bilateral eye pinguecula with arcus senilis and conjunctivitis. 

The Veteran was most recently provided a VA examination in December 2020, during which time the examiner observed the Veteran had new diagnoses of cataracts bilaterally and glaucoma suspect (meaning, high risk for glaucoma). In the examination notes, the examiner indicated the Veteran did not have a diagnosis of glaucoma in 2012 and that his cataract diagnosis was age-related and separate from his service-connected diagnoses.  See Mittleider v. West, 11 Vet. App. 181 (1998) (explaining that VA adjudicators must be able to distinguish or differentiate, by competent evidence, the extent of symptoms and consequent impairment that are attributed to service-related causes (i.e., service-connected disability) from that which contrarily is not).

The Board also has considered whether a compensable rating is warranted for incapacitating episodes. Under the General Rating Formula for DCs 6000 through 6009, there must be a period of acute symptoms severe enough to require prescription of bed rest and treatment by a physician or other healthcare provider have a total duration of at least 2 weeks, but less than 4 weeks, during the past 12 months, and this has not been shown. 

Under the General Rating Formula for Diseases of the Eye, in effect as of May 13, 2018, there must be at least five treatment visits for an eye condition during the past 12 months, and this, too, is not shown.

Moreover, the Veteran has not asserted, and the evidence does not otherwise suggest, that he has experienced a period of acute symptoms severe enough to require prescribed bed rest and treatment or a frequency of visits for treatment of his eye condition that could be considered an incapacitating episode.

For these reasons and bases, the Board finds that a compensable rating is not warranted based on incapacitating episodes under either the General Rating Formula for DCs 6000 through 6009 or the General Rating Formula for Diseases of the Eye. 

 

The evidence of record indicates the Veteran has neither experienced incapacitating episodes nor decreased visual acuity  meaning his eye condition is considered noncompensable under both the former rating criteria as well as the post-2018 rating criteria. Consequently, the Board finds that a compensable initial rating is not warranted. The probative evidence of record, including his August 2012 and December 2020 VA examinations, and post-service VA treatment records, do not reflect corrected distance vision of 20/50 in one eye and 20/40 in the other eye. On the contrary, the medical evidence reflects corrected distance vision measuring no worse than 20/40 in each eye, which correlates to a noncompensable rating based on impairment of visual acuity. 

The Board has considered whether a higher rating or any additional ratings are warranted under an alternative DC but finds that there is no indication that the Veteran has a visual field defect, impairment of muscle function, or incapacitating episodes attributable to his service-connected eye conditions to warrant any higher or additional ratings. His eye disability as mentioned is manifested by corrected distance vision of 20/40 or better in the right eye and 20/40 or better in the left eye, which warrants a noncompensable rating under DC 6066. As his eye disability is not productive of any visual impairment or incapacitating episodes indicative of entitlement to any higher rating, the existing noncompensable initial ratings for his right eye corneal scar and bilateral eye pinguecula with arcus senilis and conjunctivitis are appropriate. See 38 C.F.R. § 4.7.

The Board acknowledges the Veteran's assertions that his eye conditions are more severe than in his estimation the existing ratings contemplate. He is competent to report observable symptoms. Laynov. Brown, 6 Vet. App. 465 (1994). However, because of their complexity (i.e., they are not merely simple medical conditions), the competent medical evidence offering specific specialized determinations relevant to the rating criteria is the most probative evidence in evaluating the pertinent symptoms of his bilateral eye disability and their consequent effects. See, e.g., Kahana v. Shinseki, 24 Vet. App. 428 (2011).

 

In denying any higher ratings, the Board finds the benefit of the doubt doctrine is not applicable because there is not an "approximate" (nearly equal) balance of evidence for versus against these claims. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. See also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001).

REASONS FOR REMAND

1. Entitlement to service connection for a respiratory disability is remanded.

Pursuant to the prior June 2019 Board remand, a VA examiner was instructed to address the question of whether the Veteran's symptoms, themselves, represented an undiagnosed illness or a medically unexplained chronic multi-symptom illness (MUCMI) of the type contemplated by 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 and to give specific consideration to all pertinent service treatment records (STRs), including an April 1989 STR noting an upper respiratory infection (URI), a June 2011 STR noting shortness of breath, and a June 2011 Report of Medical Assessment also noting shortness of breath, the August 2012 pre-discharge VA respiratory examination, when the Veteran indicated that his respiratory symptoms had begun in 1999 and again reported shortness of breath, his verified combat service, and his allegations of continuity of symptomatology since his service.

In September 2021, however, the VA examiner charged with making these determinations instead determined the Veteran did not have a then current chronic diagnosis of any respiratory condition, but notably without any further discussion or rationale.  The underlying reasoning or rationale is where most of the probative value of a medical opinion is derived. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008). Moreover, in claims predicated on undiagnosed illness or MUCMI, unlike those for direct service connection, there is no requirement that there be competent evidence of a nexus between the claimed illness and service. Further, lay persons are competent to report objective signs of illness. See Gutierrez v. Principi, 19 Vet. App. 1, 8-9 (2004).

Consequently, an addendum opinion is needed addressing whether the Veteran's respiratory symptoms, themselves, are suggestive of an undiagnosed illness or a MUCMI  even absent any diagnosis otherwise accounting for or explaining them.

2. Entitlement to service connection for neuropathy of the lower extremities is remanded.

3. Entitlement to service connection for a left ankle disability is remanded.

The Veteran additionally contends that he has symptoms of a left ankle disability, also left and right foot neuropathy, which began during his military service and have continued ever since.  Following the Board's remand, he was awarded service connection for his right ankle disability; therefore, only his left ankle is still at issue unless and until he separately appeals the rating and/or effective date assigned for his now service-connected right ankle disability. Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

That said, the Veteran's DD Form 214 confirms he served in the Southwest Asia theater of operations during the PGW, so he had the type of service contemplated by 38 U.S.C. § 1117 and 38 C.F.R. § 3.317 (i.e., he is a PGW Veteran). And, as already indicated, he received the Combat Action Badge, so there no disputing that he also is a combat Veteran. See VAOPGCPREC 12-99 (October 18, 1999). This, in turn, means he is entitled to combat presumptions for disabilities alleged to be due to diseases or injuries incurred or aggravated during his combat service. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). See also Reeves v. Shinseki, 682 F.3d 988, 999 (Fed. Cir. 2012).

Realizing this, the Board cannot make a fully informed decision on these claims at this time because there are no medical opinions currently of record addressing whether the Veteran has a left ankle disability and/or left and right foot neuropathy, including as manifestations of an undiagnosed illness or MUCMI that are related or attributable to his military service  including especially to his qualifying service in Southwest Asia.  While no ankle disabilities were diagnosed during his August 2012 VA ankle examination in anticipation of his discharge from the military, and similarly no disability involving neuropathy referable to his feet was diagnosed during his August 2012 pre-discharge VA peripheral nerves examination, the VA examiner who did both examinations did not address the question of whether the Veteran's symptoms, themselves, represented an undiagnosed illness or a MUCMI.  Further, the more recent January 2017 VA PGW examination also did not address any ankle symptoms or foot neuropathy. 

The even more recent September 2021 examiner noted the Veteran did not have a then current diagnosis of a left ankle disability or of left or right foot neuropathy. But he, too, did not address whether the Veteran's symptoms, themselves, are suggestive or indicative of an undiagnosed illness or a MUCMI. Consequently, an addendum opinion is needed.

Accordingly, these remaining claims are REMANDED for the following action:

Obtain additional medical comment (addendum or supplemental medical opinions) concerning the nature and etiology of the Veteran's claimed respiratory disability, left ankle disability, and neuropathy of his lower extremities.  The examiner must consider the relevant medical and lay evidence, also the reasons for this additional remand as relating to the inadequacies of the prior examinations and opinions.

To this end, the examiner is specifically asked to provide responses to the following:

A)	Identify all objective indications of a respiratory disability, left ankle disability, and neuropathy of the lower extremities and any symptoms of an undiagnosed illness or MUCMI of the type contemplated by 38 U.S.C. § 1117 and 38 C.F.R. § 3.317. Consider the below evidence:

respiratory disability: The April 1989 STR noting an upper respiratory infection (URI), June 2011 STR noting shortness of breath, and June 2011 Report of Medical Assessment again noting shortness of breath, August 2012 pre-discharge VA respiratory examination when the Veteran indicated that his respiratory symptoms had begun in 1999 and again reported shortness of breath, his verified combat service during the PGW, and his allegations of continuity of symptomatology since his service.

neuropathy of the lower extremities and left ankle disability: The August 2012 pre-discharge VA peripheral nerves examination when the Veteran reported pain and numbness in his lower extremities.

"Objective indications" of a qualifying chronic disability include both objective evidence perceptible to an examining physician and other non-medical indicators that are capable of independent verification.  38 C.F.R. § 3.317(a)(3).  Non-medical indicators include evidence such as time lost from work, the veteran having sought treatment for his symptoms, and change in the veteran's appearance, physical abilities, and mental or emotional attitude.  

B)	By history, physical examination, or laboratory testing, can the Veteran's objective indications of a disability be attributed to a known clinical diagnosis?

If the signs and symptoms are not characteristic of a known clinical diagnosis, the examiner should so indicate.  There is no requirement that the examiner provide a diagnosis of undiagnosed illness.

C)	But if the objective indications cannot be attributed to a known clinical diagnosis, is there affirmative evidence that the undiagnosed illness was not incurred during active service in the PGW or that they were caused by a supervening condition or event that occurred since the Veteran's departure from service during the PGW?

The examiner should note that a positive response to this question requires affirmative evidence.  The mere absence of evidence is not sufficient.

D)	If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the etiology of his condition (1) inconclusive, (2) partially understood, or (3) fully understood?

This determination as to each must be based on the Veteran's specific case and cannot be based on the etiology of the disease or disability population in general or as a whole.

E)	If the Veteran's objective indications can be attributed to a known clinical diagnosis, is the pathophysiology of his condition (1) inconclusive, (2) partially understood, or (3) fully understood?

This determination as to each must be based on the Veteran's specific case and cannot be based on the pathophysiology of the disease or disability population generally or as a whole.

F)	If both the etiology and pathophysiology of the Veteran's claimed respiratory disability and neuropathy of his lower extremities are partially or fully understood, then is it at least as likely as not (50 percent or more probable) that his diagnosed condition was incurred during or is otherwise related or attributable to his active military service?

Rationale for the responses is essentially, regardless of whether favorable or conversely unfavorable to these claims, preferably citing to findings or other evidence in the file supporting conclusions and/or accepted medical authority.

If the examiner cannot respond without resorting to mere speculation, expressly indicate this but, as importantly, provide explanation of why a response would require speculation. In other words, merely saying he/she cannot respond will not suffice.

 

 

KEITH W. ALLEN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	C. B. Kucera

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.