Citation Nr: 22017140 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 16-53 308 DATE: March 24, 2022 ORDER Entitlement to service connection for a lumbar spine disability is dismissed. Entitlement to service connection for a right knee disability is dismissed. Entitlement to a rating in excess of 10 percent for a right elbow sprain on the basis of limitation of flexion prior to April 20, 2021, and a rating in excess of 30 percent since, is denied. Effective from March 11, 2013, entitlement to an initial rating of 10 percent, but no higher, for supination and/or pronation of the right elbow is granted. Effective from April 20, 2021, entitlement to an initial compensable rating based on limitation of extension of the right elbow is denied. FINDINGS OF FACT 1. In a June 2021 rating decision, the Veteran's claim of entitlement to service connection a lumbar spine disability was granted. 2. In a June 2021 rating decision, the Veteran's claim of entitlement to service connection a right knee disability was granted. 3. Prior to April 20, 2021, the Veteran's right elbow disability is manifested by pain and limitation of flexion to 140 degrees. 4. Since April 20, 2021, the Veteran's right elbow disability is manifested by pain and limitation of flexion to 66 degrees. 5. Since March 11, 2013, the Veteran's right elbow disability is manifested by pain and supination and pronation limited to, at most, 70 degrees each. 6. Effective from April 20, 2021, the Veteran's right elbow disability is manifested by limitation of extension to, at most, 10 degrees. CONCLUSIONS OF LAW 1. The appeal of the claim of entitlement to service connection for a lumbar spine disability has become moot by virtue of a June 2021 rating decision, which granted entitlement to service connection for this disorder, and there remains no matter in controversy for which the Board has jurisdiction. 38 U.S.C. §§ 7104 (a), 7105(d)(5). 2. The appeal of the claim of entitlement to service connection for a right knee disability has become moot by virtue of a June 2021 rating decision, which granted entitlement to service connection for this disorder, and there remains no matter in controversy for which the Board has jurisdiction. 38 U.S.C. §§ 7104 (a), 7105(d)(5). 3. Prior to April 20, 2021, the criteria for an initial disability rating in excess of 10 percent for right elbow disability based on limitation of flexion are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5206. 4. Since April 20, 2021, the criteria for a disability rating in excess of 30 percent for right elbow disability based on limitation of flexion are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5206. 5. Since March 11, 2013, the criteria are met for an initial disability rating of 10 percent for a right elbow disability based on limitation of supination. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5213. 6. From April 20, 2021, the criteria for an initial compensable disability rating for right elbow disability based on limitation of extension are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5207. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1984 to June 1984, and from November 2004 to January 2006, with various periods of ACDUTRA and INACDUTRA between the periods of active duty and until 2015. In April 2021, the Board remanded the remaining claims on appeal to the Regional Office (RO) for additional development and consideration. Dismissal of Claims In a decision dated in June 2021, the RO granted the Veteran's claims of entitlement to service connection for a lumbar spine disability and a right knee disability, effective from March 11, 2013. See 38 U.S.C. § 1310 (s); 38 C.F.R. § 3.312. As the Veteran has been granted service connection for these disabilities, the issue of entitlement to service connection for them is moot. As such, there is no legal basis upon which to award service connection. See Sabonis v. Brown, 6 Vet. App. 426 (1994). Accordingly, as this appeal has become moot by virtue of the June 2021 rating decision granting in full the Veteran's claim of entitlement to service connection for a lumbar spine disability and a right knee disability, the Veteran's claims are dismissed for lack of jurisdiction. See 38 U.S.C. §§ 7104 (a), 7105(d)(5). Increased Rating Disability ratings are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C. § 1155 (West 2012). Percentage ratings are determined by comparing the manifestations of a particular disability with the requirements contained in VA's Schedule for Rating Disabilities. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from a disease or injury and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 3.102, 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time are warranted, a practice of assigning ratings referred to as staging ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran is presently in receipt of an initial 10 percent rating for the right elbow sprain prior to April 20, 2021, and a rating of 30 percent since, for limitation of flexion pursuant to DC 5206. He also in receipt of a separate noncompensable rating prior to April 20, 2021, and a rating of 10 percent since, for limitation of supination and/or pronation, pursuant to DC 5213. Finally, he is in receipt of a noncompensable rating for limitation of extension, effective from April 20, 2021, pursuant to DC 5207. The right extremity is his dominate extremity. See November 2015 Elbow and Forearm Conditions Disability Benefits Questionnaire (DBQ). The Board will consider whether higher ratings are warranted for the service connected right elbow disability under any of the potentially applicable criteria for evaluating the elbow and forearm, which are found at 38 C.F.R. § 4.71a, DCs 5205 through 5213. Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders. Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a ). However, as no changes were made with respect to the DCs pertaining to the elbow and forearm, additional consideration is not warranted. A rating under DC 5205 provides that ankylosis of the major elbow is to be rated as follows: for favorable ankylosis of the elbow at an angle between 90 degrees and 70 degrees, a 40 percent rating is warranted; for intermediate ankylosis of the elbow, at an angle of more than 90 degrees, or between 70 degrees and 50 degrees, a 50 percent rating is warranted; for unfavorable ankylosis of the elbow, at an angle of less than 50 degrees or with complete loss of supination or pronation, a 60 percent rating is warranted. Under DC 5206, a 10 percent rating contemplates flexion of either forearm limited to 100 degrees. A 20 percent rating contemplates flexion of either forearm limited to 90 degrees or flexion of the minor forearm limited to 70 degrees. A 30 percent rating contemplates flexion of the major forearm limited to 70 degrees. A 40 percent rating contemplates flexion of the major forearm limited to 55 degrees. A maximum 50 percent rating contemplates flexion of the major forearm limited to 45 degrees or less. A rating under DC 5207 provides that extension of the major forearm limited to 45 degrees is rated as 10 percent disabling; limited to 60 degrees is rated as 10 percent; 75 degrees is rated as 20 percent; limited to 90 degrees is rated 30 percent; limited to 100 degrees is rated 40 percent; and limited to 110 degrees is rated 50 percent disabling. A rating under DC 5208 provides that major forearm flexion limited to 100 degrees with forearm extension limited to 45 degrees is rated 20 percent. 38 C.F.R. § 4.71a. A rating under DC 5209 provides ratings for other impairment of the elbow. Joint fracture, with marked cubitus varus or cubitus valgus deformity or with ununited fracture of head of radius, is rated 20 percent disabling for the major side. Flail joint of the elbow is rated 60 percent disabling for the major side. 38 C.F.R. § 4.71a. A rating under DC 5210 provides that nonunion of the radius and ulna, with flail false joint, is rated 50 percent disabling for the major side. A rating under DC 5211 provides for ratings based on impairment of the ulna. Malunion of the ulna with bad alignment is rated 10 percent for the major side; nonunion of the ulna in the lower half is rated 20 percent for the major side; nonunion of the ulna in the upper half, with false movement, without loss of bone substance or deformity is rated 30 percent for the major side; nonunion of the ulna in the upper half, with false movement, with loss of bone substance (1 inch (2.5 cms) or more) and marked deformity is rated 40 percent for the major side. A rating under DC 5212 provides for ratings based on impairment of the radius. Malunion of the radius with bad alignment is rated 10 percent disabling for the major side; nonunion of the radius in the upper half is rated 20 percent disabling for the major side; nonunion of the radius in the lower half, with false movement, without loss of bone substance or deformity is rated 30 percent disabling for the major side; nonunion of the radius in the lower half, with false movement, with loss of bone substance (1 inch (2.5 cms) or more) and marked deformity is rated 40 percent disabling for the major side. A rating under DC 5213 provides ratings based on impairment of supination and pronation of the forearm. Under this Code, supination of the forearm limited to 30 degrees or less is rated 10 percent disabling for the major side. Limitation of pronation with motion lost beyond the last quarter of arc, so the hand does not approach full pronation, is rated 20 percent disabling for the major side; limitation of pronation with motion lost beyond the middle of arc is rated 30 percent disabling for the major side. Loss of supination or pronation due to bone fusion, with the hand fixed near the middle of the arc or moderate pronation, is rated 20 percent disabling for the major side; loss of supination or pronation due to bone fusion, with the hand fixed in full pronation, is rated 30 percent disabling for the major side; and loss of supination or pronation due to bone fusion, with the hand fixed in supination or hyperpronation, is rated 40 percent disabling for the major side. The normal range of motion of the elbow is from 0 degrees of extension to 145 degrees of flexion. 38 C.F.R. § 4.71, Plate I. Factual Background For the sake of brevity, the Board will discuss the objective medical evidence for the separate ratings for the right elbow below prior to undertaking separate analyses under the respective DCs for limitation based on flexion, supination and/or pronation, and extension. The Veteran was initially examined by VA in November 2015 in connection with his petition to reopen a claim of entitlement to service connection for a right elbow disorder. The November 2015 VA examiner notes the Veteran sustained a right elbow sprain during a fall in 2012. The Veteran denies experiencing flare-ups of the right elbow joint, or any functional loss or functional impairment. Upon physical examination, flexion is found to be to 140 degrees, extension to 0 degrees, forearm supination to 80 degrees, and forearm pronation to 70 degrees. Pain is noted for all motions but the examiner concludes it does not result in/cause functional loss. There is no evidence of pain with weight bearing or crepitus, but localized tenderness or pain on palpation is present. The Veteran is able to perform repetitive use testing with at least three repetitions with no evidence of additional functional loss or range of motion. There is no indication of decreased muscle strength, muscle atrophy, ankylosis, or any other physical findings pertaining to the elbow joint. The Veteran does require the occasional use of a brace. Finally, while the examiner initially indicates the Veteran denies experiencing flare-ups, she provides an opinion stating that no flare-ups were present or seen during examination and, therefore, an opinion concerning additional range of motion loss during flare-ups is not feasible. As a result of the findings in the November 2015 VA examination report, a January 2016 rating decision granted the Veteran's claim for service connection for a right elbow disability and assigned an initial rating of 10 percent pursuant to DC 5206, effective from March 11, 2013. The Veteran was next examined by VA in October 2018. See October 2018 VA Elbow and Forearm Conditions DBQ. The Veteran again denied experiencing flare-ups of the right elbow joint, or any functional loss or functional impairment. Upon physical examination, flexion is found to be to 140 degrees, extension to 0 degrees, forearm supination to 85 degrees, and forearm pronation to 80 degrees. Pain is noted for all motions, but the examiner concludes it does not result in/cause functional loss. There is no evidence of pain with weight bearing or non-weight bearing. There is no evidence of crepitus, but the examiner notes localized tenderness or pain on palpation is present. The examiner also notes pain on passive motion. The Veteran is able to perform repetitive use testing with at least three repetitions with no evidence of additional functional loss or range of motion. There is no indication of decreased muscle strength, muscle atrophy, ankylosis, or any other physical findings pertaining to the elbow joint. The Veteran does not require the use of assistive devices. Following this examination, an October 2018 rating decision awards the Veteran a separate, noncompensable rating for the right elbow, effective from October 18, 2018, pursuant to DC 5213 for limitation of supination and/or pronation. The Veteran was most recently examined by VA in April 2021. See April 2021 VA Elbow and Forearm Conditions DBQ. The Veteran reports pain and decreased movements. He also indicates the presence of weekly flare-ups lasting 15 minutes and characterized by a severe stabbing pain. He states he is unable to function during flare-ups. The Veteran reports pain in all directions of movement. Upon physical examination, flexion is found to be to 66 degrees, extension to 10 degrees, forearm supination to 85 degrees, and forearm pronation to 80 degrees. Pain is noted for all motions, but the examiner concludes it does not result in/cause functional loss. There is no evidence of pain with weight bearing or non-weight bearing. There is evidence of crepitus and localized tenderness or pain on palpation. The examiner also notes pain on passive motion. The Veteran is able to perform repetitive use testing with at least three repetitions with no evidence of additional functional loss or range of motion. The examiner notes the Veteran is being examined immediately after repeated use over time and there is no evidence to suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limits functional ability with repeated use over time. Further, while the Veteran is not examined during a flare-up, the examiner does find that there is no evidence to suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limits functional ability during a flare-up. The examiner notes that the Veteran's range of motion of the elbow is decreased and painful. There is no indication of decreased muscle strength, muscle atrophy, ankylosis, or any other physical findings pertaining to the elbow joint. The Veteran requires the occasional use of a brace during flare-ups. Following this examination, in a June 2021 rating decision, the RO increased the Veteran's rating pursuant to DC 5206 to 30 percent, the rating pursuant to DC 5213 to 10 percent, and awarded a separate noncompensable rating pursuant to DC 5207, all effective from April 20, 2021. Also included in the claims file for consideration are records from the Social Security Administration (SSA), and VA and private treatment records. Of relevance to the claims for higher ratings for the right elbow include the notations of pain in the right elbow dating in July, August, and October 2019. See VA Treatment Records. Thereafter, the Veteran underwent a February 2020 VA occupational therapy consult of the right elbow. The February 2020 consult notes sharp pain at the right elbow in the medial area that is precipitated by movement. Physical examination shows flexion to 100 degrees, supination to 70 degrees and pronation to 80 degrees. Extension was not provided. There is evidence of decreased muscle strength. See id. Legal Analysis 1. Right Elbow- Limitation of Flexion Period Prior to April 20, 2021 The Board finds that the evidence of record weighs against an initial rating in excess of 10 percent for the period prior to April 20, 2021, on the basis of limitation of flexion of the right elbow pursuant to DC 5206. Specifically, the November 2015 and October 2018 VA examination reports both note flexion to 140 degrees, with pain not resulting in additional functional loss of range of motion. See again November 2015 and October 2018 VA Elbow and Forearm Conditions DBQs. A higher 20 percent rating is warranted for flexion limited to 90 degrees, which has not been shown by the evidence of record. Period Since April 20, 2021 The Board finds that the evidence of record is against a rating in excess of 30 percent for the period since April 20, 2021, on the basis of limitation of flexion of the right elbow pursuant to DC 5206. Specifically, the April 2021 VA examination report notes flexion to 66 degrees. See again April 2021 VA Elbow and Forearm Conditions DBQ. A higher 40 percent rating is warranted for flexion limited to 55 degrees, which has not been shown by the evidence of record. 2. Right Elbow-Impairment of Supination and/or Pronation The Veteran is in receipt of a separate noncompensable rating for impairment of supination and/or proration, effective from October 18, 2018, and a rating of 10 percnet since April 20, 2021, pursuant to DC 5213. Based on the evidence of record, the Board finds that an initial 10 percent rating is warranted on the basis of impairment of supination and/or pronation for the entire period on appeal, so from March 11, 2013, the date of receipt of the petition to reopen the claim for service connection. In this respect, normal forearm pronation is from 0 to 80 degrees and forearm supination is from 0 to 85 degrees. 38 C.F.R. § 4.71, Plate III. The Board notes that a Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance, including as due to pain. 38 C.F.R. § 4.40 (2021); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017). A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45 (2021). However, the veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). The Veteran's forearm pronation has been found to be to 70 degrees, 80 degrees, 85 degrees, and 80 degrees in the November 2015, October 2018, and April 2021 VA Examinations, and February 2020 VA Treatment Record, respectively. The Veteran's supination has been found to be 80 degrees, 85 degrees, 85 degrees, and 70 degrees in the November 2015, October 2018, and April 2021 VA Examinations, and February 2020 VA Treatment Record, respectively. Here, with respect to functional loss, the VA examinations all consistently noted pain, but no additional limitations on repetitive motion for supination and pronation. Regardless, the RO assigned an initial noncompensable evaluation pursuant to DC 5213 from October 18, 2018, and a 10 percent rating from April 20, 2021, ostensibly on the basis of that noted pain. The Board therefore finds that the evidence shows the Veteran has consistently reported pain during the pendency of this appeal and even had decreased range of motion for both supination and pronation, 70 and 80 degrees, respectively, in the November 2015 VA examination. Therefore, a rating of 10 percent is warranted for the entire period on appeal. The next higher rating of 20 percent is not warranted as there is no indication of limitation of pronation with motion lost beyond the last quarter of arc, so the hand does not approach full pronation; or, loss of supination or pronation due to bone fusion, with the hand fixed near the middle of the arc or moderate pronation. See again November 2015, October 2018, and April 2021 VA Examinations. 3. Right Elbow-Limitation of Extension The Veteran is also in receipt of a separate noncompensable rating for the right elbow on the basis of limitation of extension pursuant to DC 5207, effective from April 20, 2021. The Board finds a compensable rating is not warranted at any point during the appeals period, as his extension has been found to be limited to, at most, 10 degrees. See April 20, 2021. A higher 10 percent rating is warranted for extension limited to 45 degrees, which has not been shown by the evidence of record. Other Diagnostic Codes With respect to the other potentially applicable DCs, the Board notes that the Veteran has never been diagnosed with ankylosis of the right elbow. In fact, the November 2015, October 2018, and April 2021 VA examination reports specifically note that the Veteran did not have joint ankylosis. Therefore, DC 5205 is not applicable to the instant case. Similarly, there is no indication the Veteran has ever suffered from flexion limited to 100 degrees and extension to 45 degrees; impairment of the flail joint; any impairment of the radius that indicates nonunion of the radius; and, any impairment of the ulna. Accordingly, a rating in excess of 20 percent or a separate rating under another DC is not warranted under DCs 5209, 5210, 5211, and 5212. See again November 2015, October 2018, and April 2021 VA Examinations. Other Considerations The Board also notes that a Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination[,] and endurance, including as due to pain. 38 C.F.R. § 4.40 (2021); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017). A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45 (2021). However, the veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). Here, with respect to functional loss, the VA examinations all consistently noted pain, but no additional limitations on repetitive motion. Regardless, the evidence shows that the Veteran's range of motion for flexion of the elbow was consistently in excess of 100 degrees prior to April 20, 2021, and 55 degrees since, which are the requirements for the next higher 20 and 40 percent ratings. Similarly, as it pertains to limitation of extension, the Veteran's extension of the right elbow was limited to 10 degrees. In order to warrant a 10 percent rating, extension must be limited to 45 degrees. Therefore, the Board finds that, even when considering the functional limitations of less movement than normal as identified in 38 C.F.R. §§ 4.40, 4.45 4.59, as well as the criteria in DeLuca v. Brown and Mitchell v Shinseki, the Veteran's functional loss did not equate to the criteria required for higher ratings when considering the cumulative picture of his elbow disability. 8 Vet. App. 202 (1995), 25 Vet. App. 32 (2011). Further, regarding the holdings in Correia or Sharp, while the Veteran repeatedly endorsed pain on motion of the right elbow and reports experiencing flare-ups in the April 2021 VA examination, none of the VA examiners found decreases in range of motion testing or additional limitations such that it would warrant a higher rating. In this respect, the Board acknowledges the Veteran's reports that flare-ups result in an inability to function during the April 2021 VA examination. However, the VA examiner's objective findings show that there is evidence to suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limits functional ability during a flare-up. Even considering any additional restrictions due to his flare-ups and the decrease in his range of motion during the April 2021 VA examination, when combining all the numerical values of his ranges of motion, he is still able to move well in excess of the minimum required for the next higher rating (see again April 2021 VA examination). Finally, the Board acknowledges there was evidence of pain on passive and non-weightbearing motion, but still did not result in any decreased range of motion. 28 Vet. App. 158 (2016), 29 Vet. App. 26 (2017). Finally, while the Veteran has reported flare-ups in the April 2021 VA examination only, there is no indication he suffered from such restricted range of motion of the elbow joint that it may be considered the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1 (2021); 38 C.F.R. §§ 4.40, 4.45; see also October 2013 and October 2019 VA examinations. For these reasons, the Board finds that the Veteran does not meet or nearly approximate the schedular criteria for rating in excess of his currently assigned ratings under any of the potentially applicable DCs. In making this determination, the Board considered the Veteran's complaints of pain. However, a thorough review of the record does not indicate the Veteran met or nearly approximated the criteria for higher ratings even when taking into account his complaints of pain and functional impairment. 38 U.S.C.§ 5107 (b); 38 C.F.R. § 4.3. In reaching the above conclusions, the Board has not overlooked the Veteran's statements with regard to the severity of his right elbow disability. In this regard, the Veteran is competent to report on factual matters of which he has firsthand knowledge, e.g., experiencing chronic pain, difficulty lifting, or experiencing a worsening of that pain. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence during the course of this appeal. He is competent to provide such statements, and the Board finds that the Veteran's statements are credible. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Nevertheless, the Board finds the Veteran's statements are not indicative of symptomatology that is more severe than that observed at his VA examinations and do not describe symptoms that would warrant a higher rating than what is currently assigned. As such, the objective medical findings provided by the Veteran's VA examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). Therefore, aside from the award of a 10 percent rating on the basis of impairment of supination and/or pronation for the entire period on appeal, the weight of the probative evidence persuasively favors against the claims and the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). E. BLOWERS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Berry, 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.