Citation Nr: 22016360 Decision Date: 03/22/22 Archive Date: 03/22/22 DOCKET NO. 16-35 602 DATE: March 22, 2022 ORDER Prior to October 18, 2012, an initial rating of 40 percent, but not higher, for arthritis of the thoracolumbar spine (a lumbar spine condition) is granted. From October 18, 2012 to January 5, 2016, a rating in excess of 40 percent for a lumbar spine condition is denied. From January 5, 2016, a rating of 40 percent for a lumbar spine condition is granted. REMANDED An initial rating in excess of 10 percent for left lower extremity radiculopathy. An initial rating in excess of 10 percent for right lower extremity radiculopathy. A total disability rating based on individual unemployability (TDIU) prior to April 1, 2011. FINDINGS OF FACT 1. Prior to October 18, 2012, the Veteran's lumbar spine condition manifested forward flexion to 30 degrees or less during flare-ups, with pain, and difficulty walking, standing and bending. There is no ankylosis. 2. From October 18, 2012 to January 5, 2016, the Veteran's lumbar spine condition manifested forward flexion to 30 degrees or less during flare-ups with pain, and difficulty walking, standing and bending. There is no ankylosis. 3. From January 5, 2016, the Veteran's lumbar spine condition manifested forward flexion to 30 degrees or less during flare-ups with pain, and difficulty walking, standing and bending, absent the ameliorative effects of treatment. There is no ankylosis. CONCLUSIONS OF LAW 1. Prior to October 18, 2016, the criteria for a 40 percent rating, but not higher, for a lumbar spine condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237. 2. From October 18, 2016, the criteria for a rating in excess of 40 percent rating, for a lumbar spine condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5237. 3. From January 5, 2016, the criteria for a 40 percent rating, but not higher, for a lumbar spine condition have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.71a, DC 5237. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1974 to August 1986. The case is on appeal from a November 2012 rating decision and a January 2013 rating decision. In August 2019, the Veteran testified at a Board hearing. Most recently, the Board remanded the case for additional development in June 2021. While the case was in remand status, an August 2021 rating decision granted a 40 percent rating from October 18, 2014, and assigned a 20 percent rating from January 5, 2016, for the lumbar spine condition. As the increase does not satisfy the appeal in full, the issue remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Murphy v. Shinseki, 26 Vet. App. 510, 514 (2014). The Board notes that the June 2021 Board decision stated that the effective date of the award of TDIU predated the effective date of the award of service connection for the conditions remaining on appeal, and the issue of a TDIU was no longer on appeal. However, upon further consideration, the Board finds that the appellate period begins on November 19, 2009, the date service connection was awarded for the Veteran's lumbar spine condition. As the RO granted entitlement to a TDIU effective April 1, 2011, the issue of entitlement to a TDIU prior to such date remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356, 360-362 (2018). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). An initial rating in excess of 20 percent prior to October 18, 2012, in excess of 40 percent from October 18, 2012, and in excess of 20 percent from January 5, 2016. Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Staged ratings must be considered, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The General Rating Formula for evaluating the spine provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Following the rating criteria, Note 1 states: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Background and Facts In this matter, the Veteran was granted service connection for a lumbar spine condition in a January 2013 rating decision. The January 2013 rating decision assigned a 20 percent rating from November 19, 2009. An August 2021 rating decision granted a 40 percent rating from October 18, 2014, and assigned a 20 percent rating from January 5, 2016, for the lumbar spine condition. The Veteran was afforded a VA examination in October 2012. At that time, the examiner diagnosed thoracolumbar degenerative disc disease and IVDS. The Veteran reported he experiences constant pain which travels down his legs. Concerning flare ups, the Veteran reported he has difficulty with prolonged walking, prolonged standing, and lifting. Initial range of motion measurements revealed flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, left lateral rotation to 25 degrees, all with no evidence of painful motion. Range of motion testing after repetitive use testing revealed forward flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, right lateral rotation to 30 degrees or greater, and left lateral rotation to 25 degrees. Concerning functional loss, the examiner determined that the Veteran experienced less movement than normal and interference with sitting, standing, and/or weight bearing. The examiner indicated that the Veteran has localized tenderness in the lower lumbar area. The examiner also indicated that the Veteran had IVDS but has not had any incapacitating episodes over the past 12 months and that the Veteran used a cane constantly. The Veteran provided a lay statement in January 2015 dated in September 2014. At that time, the Veteran stated that his back condition worsened, and his family had to help him out of the shower because his back locks up. He explained that he has difficulty with walking and traversing stairs due to sharp back pain, and he has problems bending over. The Veteran also provided a lay statement from his friend which states that she observed that the Veteran's back condition had worsened and a lay statement his son stating that he observed that the Veteran is unable to sit or stand for prolonged periods of time due to his back condition. The Veteran was provided with another VA examination in January 2016. The examiner reported diagnoses including degenerative arthritis of the spine with IVDS. The Veteran reported that he experiences constant pain and some days the pain is worse than others. The Veteran also reported experiencing flare ups. He described the flare ups as pain in his middle and lower back that is worse than normal, and that sometimes his back pain is so severe he can barely move. Initial range of motion measurements revealed forward flexion to 80 degrees, extension to 20 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 15 degrees. The examiner reported pain was exhibited on each range of motion, but it did not cause functional loss. The Veteran completed repetitive use testing without additional loss in range of motion. Concerning flare ups, the examiner was unable to say without mere speculation whether there was additional limitation in functional ability. The examiner commented that the Veteran is expected to have additional loss in range of motion when suffering from pain but that the loss in range of motion would depend on the activity and severity of pain. He also commented that range of motion measurements reflected during the examination may be suggestive of range of motion experienced during flare ups. The examiner also denied the presence of ankylosis and IVDS. The examiner also noted that the Veteran used a cane constantly. Concerning functional impact on the Veteran's ability to work, the examiner noted that prolonged and extended periods of standing, leaning, lifting or carrying of heavy items may be impacted by discomfort and pain with overuse. During the August 2019 Board hearing, the Veteran testified that his lumbar spine condition worsened over the previous 10 years. He stated that he has problems getting in and out of bed and needs help getting up from a sitting position. He also stated his back stiffens up if he sits for longer than 10 to 15 minutes. The Veteran was afforded a VA examination in October 2020. The examiner reported a diagnosis of degenerative arthritis of the thoracolumbar spine with IVDS. The Veteran reported that he experiences upper and lower back pain. He stated that his lower back pain is worse than his upper back pain and radiates down his legs. He also stated his back condition limits his ability to walk. The Veteran reported experiencing flare ups when he tries to walk after sitting for a prolonged period. Initial range of motion findings revealed forward flexion to 45 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees. The examiner noted that the limitation in range of motion contributed to a functional loss in that bending is limited. The examiner also noted that pain was noted on examination on all ranges of motion. The examiner found that there was objective evidence of moderate localized tenderness or pain on palpitation on the lower back. The examiner also noted evidence of pain with weight bearing. The examiner noted that the Veteran was not able to perform repetitive use testing. Concerning repeated use over time and flare ups, the examiner determined that pain would limit functional ability. In regard to range of motion, the examiner determined forward flexion would be limited to 45 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 20 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 20 degrees. The examiner also noted that additional factors contributing to the Veteran's disability include disturbance of locomotion and interference with standing. The examiner denied the presence of ankylosis. The examiner noted the presence of IVDS but denied that the Veteran had any episodes that required bed rest prescribed by a physician. Concerning assistive devices, the examiner indicated the Veteran used a cane constantly and used a walker regularly. Concerning functional impact, the examiner noted that the Veteran's lumbar spine condition limits his ability to lift, bend, and stand for a long period of time. Pursuant to the Board's June 2021 remand, a retrospective opinion was obtained in July 2021 concerning range of motion findings described in the October 2012 VA examination and the January 2016 VA examination. In this regard, the examiner provided the following estimates for the October 2012 VA examination concerning passive, non weight-bearing range of motion: forward flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 25 degrees. Concerning flare ups, the examiner provided the following estimates: forward flexion to 30 degrees, extension to 5 degrees, right and left lateral flexion to 5 degrees, right and left lateral rotation to 5 degrees. Concerning the January 2016 VA examination, the examiner provided the following estimates concerning passive, non weight-bearing range of motion: forward flexion to 80 degrees, extension to 25 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 15 degrees. Concerning flare ups, the examiner provided the following estimates: forward flexion to 55 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, right and left lateral rotation to 10 degrees. The evidence of record also includes VA treatment records that reflect the Veteran complained of ongoing back pain and that he received treatment for his back pain. The specific details of those records will be discussed as they pertain to the analysis below. Analysis The Board finds in this case, increased ratings are warranted for the rating period prior to October 18, 2012, and from January 5, 2016. The Veteran was assigned an initial 20 percent rating for his lumbar spine condition effective November 19, 2009. As noted, an August 2021 rating decision granted a 40 percent rating from October 18, 2014 and assigned a 20 percent rating from January 5, 2016. However, the Board finds an increased rating to 40 percent is warranted from November 19, 2009 to October 18, 2014 and from January 5, 2016. However, a rating in excess of 40 percent is not warranted at any time during the appellate period. Concerning the increased rating to 40 percent prior to October 18, 2012, the Board notes that the retrospective opinion obtained in July 2021 reflects that the Veteran's forward flexion was limited to 30 degrees during flare ups. The RO assigned a 40 percent rating based on this finding and assigned the effective date based on the date of the October 2012 VA examination. However, the Board finds this limitation with regard to range of motion to be consistent with a 40 percent rating prior to this date, from November 19, 2009, when the Veteran was awarded service connection for his lumbar spine condition. In this regard, the severity of the Veteran's lumbar spine condition as indicated in the October 2012 VA examination and July 2021 does not reflect a worsening of the condition from the date the Veteran filed his claim for and was granted service connection for his lumbar spine condition. Instead, the Board finds that it is indicative of the severity level from the time the Veteran filed his claim for and was granted service connection for his lumbar spine condition, as there are no other VA examinations concerning the Veteran's lumbar spine condition prior to the October 2012 examination. Thus, the Board finds this limitation with regard to range of motion to be consistent with a 40 percent rating from November 19, 2009, when reasonable doubt is resolved in the Veteran's favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In regard to the increased rating to 40 percent from January 5, 2016, the Board notes that the January 2016 VA examination reflects that the Veteran's forward flexion was limited to 80 degrees, and the July 2021 retrospective opinion noted that the Veteran's forward flexion was limited 55 degrees when considering functional impact during flare ups. The Board acknowledges this finding is consistent with a 20 percent rating. However, the Board notes VA treatment records dated in February 2016, reflect that the Veteran previously underwent a medial branch nerve block prior to the January 2016 VA examination, and VA treatment records dated in March 2016 and July 2017 reflect that the Veteran received epidural injections for his back pain in addition to taking gabapentin and tramadol as needed. In this regard, to the extent that the January 2016 VA examination may reflect some improvement in the Veteran's lumbar spine condition, the Board notes that this is likely due to the medial branch nerve block and other treatment. Thus, there is no indication the examiner considered the ameliorative effects of this treatment as it is not noted in the examination report. See Jones v. Shinseki, 26 Vet. App. 56, 62 (2012) (ameliorative effect of medication not to be considered if not contemplated by rating criteria). As such, the Board finds the evidence of record reflects that the severity of the Veteran's lumbar spine condition did not improve but continued to be consistent with a 40 percent rating from January 5, 2016, when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Finally, while the Board finds an increased rating to 40 percent is warranted from November 19, 2009 to October 18, 2012, and from January 5, 2016, it also finds that the preponderance of evidence is against a rating in excess of 40 percent at any time during the appellate period, including the period during which the RO assigned a 40 percent rating from October 18, 2012 to January 5, 2016. According to the rating criteria discussed above, a higher rating requires ankylosis to be shown as the 40 percent rating is the maximum rating for limitation of motion. Concerning ankylosis, the Board specifically acknowledges the Court case of Chavis v. McDonough, 34 Vet. App. 1 (2021), which stated that "application of [38 C.F.R.] §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis, in other words, if it is the functional equivalent of ankylosis." In this regard, the Board acknowledges the Veteran's lay reports that due to his back condition he has difficulty standing or sitting for prolonged periods, walking long distances, twisting, and bending, and that he experiences pain of such severity he feels he cannot move. However, upon review, even when considering the functional limitations present during a flare-up and the functional limitations shown generally, the Board finds that the Veteran's disability picture or any additional limitation does not more nearly approximate the entire thoracolumbar spine fixed in flexion or extension and one of the additional symptoms set forth in the General Formula Note 5 or the functional equivalent of ankylosis. Although the Veteran experienced limitation of motion due to pain, there is no indication that the limitation of motion resulted in the entire spine fixed in flexion or extension, with one or more of the following: difficulty walking due to a 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. While the Board has considered 38 C.F.R. § 4.40 and § 4.45, the Board finds that a higher rating in excess of 40 percent is not warranted. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. Although, examination reports showed that the Veteran had IVDS, 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 IVDS Based on Incapacitating Episodes. Furthermore, other than the lower extremity ratings addressed below, the evidence does not show any other associated objective neurologic abnormalities. See 38 C.F.R. § 4.71a, DC 5242, Note 1. In sum, after resolving any reasonable doubt in the Veteran's favor, increased ratings to 40 percent effective November 19, 2009 to October 18, 2012, and from January 5, 2016 are warranted, but a rating in excess of 40 percent is not warranted at any time during the appellate period. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Although the Board is remanding others claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim. See 38 C.F.R. § 3.159(d). REASONS FOR REMAND 1. An initial rating in excess of 10 percent for left lower extremity radiculopathy. 2. An initial rating in excess of 10 percent for right lower extremity radiculopathy. The Veteran contends higher initial ratings are warranted for his left and right lower extremity radiculopathy. The Veteran underwent VA examinations concerning his lower extremity radiculopathy in October 2012, January 2016, and October 2020. At the time of the October 2012 VA examination, the examiner assessed the signs and symptoms as mild, to include mild intermittent pain, mild paresthesias, and mild numbness of the right and left lower extremity. At the time of the October 2016 VA examination, on the examination report pertaining to the Veteran's lumbar spine condition, the examiner determined that the Veteran experienced no constant pain, mild intermittent pain, mild paresthesias, and mild numbness of both the right and left lower extremities. The examiner noted that the Veteran experienced radiculopathy of the right and left sciatic nerve and determined that the overall severity of his right and left lower extremity radiculopathy was mild. However, the same examiner provided conflicting results concerning the severity of aspects of the disabilities on the examination report regarding the Veteran's radiculopathy provided on the same date. The examiner determined the Veteran experienced severe constant pain of the left and right lower extremities, no intermittent pain, severe paresthesias and/or dysesthesias, and moderate numbness. The examiner determined the Veteran had mild incomplete paralysis of the sciatic nerve. At the time of the October 2020 VA examination, the Veteran reported his condition had worsened with pain radiating down his legs, with more pain in the right leg. With regard to treatment, the Veteran reported that he takes gabapentin. The examiner determined the Veteran experienced mild constant pain, no intermittent pain, mild paresthesias and/or dysesthesias, mild numbness, with an overall severity level of mild. The Board finds another VA examination is warranted to assess the severity of the Veteran's left and right lower extremity radiculopathy. In this regard, clarification is needed concerning the findings reflected in the October 2016 VA examination reports, as the examiner provided conflicting severity levels concerning pain, paresthesias and/or dysesthesias, and numbness. In addition, although the later October 2020 VA examination states that the Veteran treats this disability with gabapentin, the examination report does not reflect that the Veteran received epidural injections to treat his back pain in September 2020, as noted in his VA treatment records. The Board notes in determining that the severity level of the Veteran's radiculopathy was mild at the time of the October 2020 VA examination, it is unclear whether the examiner considered the ameliorative effects of the epidural injection in September 2020. See Jones, 26 Vet. App. at 62 (ameliorative effect of medication not to be considered if not contemplated by rating criteria). Under the circumstances, the Board finds that the Veteran must be afforded an examination and retrospective medical opinion that disregards the ameliorative effects of treatment in assessing the severity of his service-connected lower extremity radiculopathy. 3. A TDIU prior April 11, 2011. The issue of TDIU is intertwined with the Veteran's pending increased rating appeal for his left and right lower extremity radiculopathy. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). As such, the Veteran's claim for TDIU is also remanded. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination (or telehealth interview, records review, etc. if an in-person examination is not feasible) by an appropriate examiner to determine the severity of his service-connected lower extremity radiculopathy. The entire claims file should be reviewed by the examiner. (Continued on the next page) The left and right lower extremity radiculopathy should be described in terms of mild, moderate, moderately severe, severe, or complete paralysis from a medical standpoint. The examiner should address and clarify the conflicting findings found in the October 2016 VA examination reports. The examiner should ask the Veteran to describe the ameliorative effects of pain medication and/or epidural injections at the time of the October 2012, January 2016, and October 2020 VA examinations. To the extent possible, the examiner should address the severity of the Veteran's disability without consideration of the ameliorative effects provided by medications. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Gray, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.