Citation Nr: 22018188 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 15-30 656 DATE: March 28, 2022 ORDER New and material evidence has not been received to reopen a claim for entitlement to service connection for a pulmonary disability, including residuals of pneumonia. New and material evidence having been received, the claim for entitlement to service connection for hearing loss is reopened. New and material evidence having been received, the claim for entitlement to service connection for tinnitus is reopened. The claim for service connection for hearing loss is denied. The claim for service connection for tinnitus is granted. FINDINGS OF FACT 1. An unappealed September 2005 Board decision denied service connection for residuals of pneumonia and a lung disorder. The Veteran did not appeal the denial to the Court, and the Board decision became final. 2. Evidence received since the final September 2005 Board decision does not relate to an unestablished fact necessary to substantiate the claim for service connection for a pulmonary disability. 3. In an unappealed March 2010 rating decision, the RO reopened and denied the claims for service connection for hearing loss and tinnitus on the merits. 4. The evidence received since the final March 2010 rating decision is not cumulative or redundant of evidence previously of record and relates to unestablished facts necessary to substantiate the claims for service connection for bilateral hearing loss and tinnitus. 5. The most persuasive evidence is against a finding that the Veteran's current hearing loss had onset in service, it did not manifest to a compensable degree within one year of discharge, and hearing loss is not shown to be causally or etiologically related to any disease, injury, or incident in service. 6. The Veteran's tinnitus was incurred as a result of service. CONCLUSIONS OF LAW 1. The criteria for readjudicating the claim of entitlement to service connection for a pulmonary disability, to include residuals of pneumonia, have not been met. 38 C.F.R. § 3.156 (d). 2. New and material evidence has been received, and the claim for service connection for bilateral hearing loss is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. New and material evidence has been received, and the claim for service connection for tinnitus is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 4. The criteria for service connection for hearing loss have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.385. 5. The criteria for service connection for tinnitus have been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty December 1965 to May 1966. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in November 2021. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which declined to reopen claims for service connection for bilateral hearing loss, tinnitus and a lung disability. In July 2013, the Veteran filed a timely notice of disagreement to the June 2013 rating decision, and the RO issued a statement of the case on June 17, 2015. Thus, the Veteran had until August 17, 2015 to file a timely substantive appeal. The appellant submitted an untimely VA Form 9 on August 25, 2015. Therein the Veteran requested a hearing before a member of the Board. In correspondence in September 2015, November 2015, February 2016, May 2016, August 2016, February 2017, May 2017 and August 2017, the RO informed the Veteran that his appeal had been placed on the hearing docket. In January 2018 and February 2018, the Veteran was offered a chance to participate in RAMP, the Rapid Appeals Modernization Program, which was a pilot program for the Appeals Modernization Act, which became effective February 17, 2019. In December 2018, the Veteran attempted to opt-in to RAMP. In correspondence in February 2019, the RO informed the Veteran that his legacy appeal had been withdrawn and it would be processed under the RAMP. Thereafter, in correspondence in March 2019, the Veteran was informed that he was not eligible to opt-in to RAMP because he did not have a pending active appeal. In a letter dated the same month, the RO informed the appellant that it could not accept his August 25, 2015 substantive appeal because it was untimely. However, the appeal was certified to the Board and a Board hearing was scheduled. At the November 2021 Board hearing, a transcript of which is of record, the undersigned VLJ, accepted testimony on the applications to reopen claims for service connection for bilateral hearing loss, tinnitus and a lung disability. In light of these circumstances, the Board accepts jurisdiction of the appeal despite the untimeliness of the substantive appeal. See Percy v. Shinseki, 23 Vet. App. 37, 43 (2009) (holding that the filing of a timely substantive appeal may be waived, and that, where VA takes actions to indicate that such filing has been waived, such as by certifying the appeal or holding a Board hearing and taking testimony on the matter, the Board has jurisdiction to decide the appeal). New and Material Evidence Claims Rating decisions are final and binding based on evidence on file at the time the claimant is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104 (a). The claimant has one year from notification of a RO decision to initiate an appeal by filing a notice of disagreement (NOD) with the decision, and the decision becomes final if an appeal is not perfected within the allowed time period. 38 U. S.C. § 7105; 38 C.F.R. §§ 3.160, 20.201, 20.302. If the Board issues a decision on appeal, confirming the RO's decision, then the Board's decision subsumes the RO's decision on the same issue at hand. 38 C.F.R. § 20.1104. Moreover, if the Board's decision is not timely appealed, then it, too, is final and binding based on the evidence then of record. 38 C.F.R. § 20.1100 . Generally, if a claim for service connection has been previously denied and that decision became final, the claim can be reopened and reconsidered only if new and material evidence is presented with respect to that claim. 38 U.S.C. § 5108 . "New" evidence is defined as existing evidence not previously submitted to agency decisionmakers. "Material" evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative, nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). The Court interpreted the language of 38 C.F.R. § 3.156 (a) as creating a low threshold, and viewed the phrase "raises a reasonable possibility of substantiating the claim" as "enabling rather than precluding reopening." Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, but not its weight, is to be presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Despite the determination reached by the RO, the Board must find new and material evidence in order to establish its jurisdiction to review the merits of a previously denied claim. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for a pulmonary disability Here, the RO previously denied the Veteran's service connection claim in a February 1999 rating decision, finding that while the service treatment records showed that he was hospitalized in service for pneumonia, no residuals were shown, nor was a chronic lung problem shown in service or after service. The Veteran perfected his appeal to the Board and in September 2005 the Board denied service connection for a lung disability and residuals of pneumonia. The Board found that there was no evidence that the Veteran suffered from any residuals of pneumonia or a lung disorder, nor was there evidence of an etiological relationship between any lung disorder and service. The Veteran did not appeal the Board's denial to the Court of Appeals for Veterans Claims (Court), and the Board's September 2005 decision became final. See 38 U. S.C. §§ 7104, 7266; 38 C.F.R. §§ 20.1100, 20.1104. The evidence at the time consisted of the service treatment records that showed the Veteran was hospitalized in January 1966 with an acute upper and lower respiratory infection, consisting of pneumonitis in the right lower lobe with some pleural effusion. He responded to treatment with broad-spectrum antibiotic. He was markedly improved on discharge, and was discharged to duty. The diagnosis was pneumonitis, right lower lobe, organism undetermined. A July 1968 note in the Veteran's service medical records revealed a history of pneumonia in 1966 with no complications or residuals. An entry from February 1969 noted the Veteran had mononucleosis in November 1968. A June 1969 medical examination revealed a history of infectious mononucleosis with pulmonary and pleural involvement, with complete recovery and no complications or sequela. The Veteran's medical history reports from 1970 and 1971 were negative for a pulmonary condition. The Veteran's VA outpatient treatment records from December 1988 to February 1999 were silent for treatment of a lung condition or residuals of pneumonia. A 1991 lateral chest exam revealed scarring on the right middle lobe, but an otherwise normal chest. On VA examination in September 1998, the Veteran reported a history of bilateral pneumonia while in service, but none since. He indicated that he smoked cigarettes from the age of 14 to his 30's. The examiner noted that a chest x-ray from May 1998 was normal. Lungs were clear to auscultation and percussion. The examiner diagnosed history of tobacco abuse, history of pneumonia while in service, and normal lungs at that time. A March 2000 chest x-ray revealed that the Veteran's chest and lungs were normal. The Veteran's VA outpatient treatment records from March 1999 to August 2000 recorded respiratory complaints associated with obstructive sleep apnea syndrome. The record also contained statements and September 2000 testimony from the Veteran's asserting that he had residuals of pneumonia and a lung condition due to service. The Veteran asserted that he had a spot on his lungs related to the in-service pneumonia. New evidence received since the September 2005 Board denial of the claim includes statements VA treatment records which fail to document any complaints, diagnosis or treatment for a diagnosed chronic lung disability or residuals of pneumonia. This evidence while new, is not material to that claim and provides evidence against the claim. The Board has also considered the Veteran's testimony asserting that he has a lung disability due to service, including a spot in his lung/residuals of pneumonia. The lay statements are simply a reiteration of his previously considered general assertions of service connection (it is not a new contention). Even assuming their credibility for new and material evidence analysis, the statements are cumulative and cannot be considered new and material evidence. Simply stated, the Veteran is repeating his prior claim. Also added to the record is the Veteran's testimony asserting that he has a lung disability secondary to exposure to herbicide agents and/or asbestos. Based on the above, new and material evidence has not been received to reopen a claim of service connection for a lung disability. While a new theory of entitlement cannot be the basis to reopen a claim under 38 U.S.C. §§ 7104 (b), if the evidence supporting a new theory of entitlement constitutes new and material evidence, then VA must reopen the claim. Boggs v. Peake, 520 F.3d 1330, 1336-37 (Fed. Cir. 2008). Here, review of the evidence reflects that the VA has not received any competent evidence in support of the contention that he was exposed to Agent Orange or asbestos, nor is there any evidence of a lung disability secondary exposure to herbicide agents and/or asbestos. Only the Veteran's lay contentions support his theories of entitlement and, even assuming their credibility for new and material evidence analysis, the statements are cumulative and cannot be considered new and material evidence. Simply stated, the Board needs new and material evidence to reopen this claim, not a new theory of causation based on only speculation. Even though reopening a claim has a "low threshold", there is still a threshold that needs to be met. In any event, it is important for the Veteran to understand that in the event the Board found new and material evidence, that new evidence (as cited above), would provide a basis to deny this claim once again, absent any evidence of a chronic lung disability causally related to service more than 50 years ago. As the Veteran has not fulfilled his threshold burden of submitting new and material evidence to reopen the finally disallowed claim for service connection for a pulmonary disability, including residuals of pneumonia, the benefit-of-the-doubt doctrine is not applicable. See Annoni v. Brown, 5 Vet. App. 463, 467 (1993). 2. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hearing loss and tinnitus In an unappealed March 2010 rating decision, the RO reopened and denied the claims for service connection for hearing loss and tinnitus because the claimed disorders were not shown to be caused or aggravated by service. The Veteran was notified of the rating decision, but did not appeal the decision. As such, the March 2010 rating decision became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. At the time of the prior decisions, the record included the service records which did not reflect a diagnosis or treatment for hearing loss or tinnitus; VA treatment records that documented left ear hearing loss and tinnitus after 1989; a hearing test in July 1993 that showed hearing within normal limits, and; an April 2009 private audiological testing report that supported a finding of left ear hearing loss. The evidence received since the March 2010 decision includes evidence that is both new and material to the claims. See 38 C.F.R. § 3.156. In November 2021, the Veteran provided testimony regarding the in-service onset of his claimed disabilities in service. The credibility of this evidence is presumed for purposes of reopening these claims. See Justus, 3 Vet. App. at 513. Accordingly, the claims are reopened. Service Connection Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service, or if preexisting service, was aggravated therein. 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To establish service connection for a disability, there must be competent evidence of the following: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship or nexus between the present disability and the disease or injury incurred or aggravated during service. Horn v. Shinseki, 25 Vet. App. 231, 236 (2010); Shedden, 381 F.3d at 1167; Gutierrez v. Principi, 19 Vet. App. 1, 5 (2004) (citing Hickson v. West, 12 Vet. App. 247, 253 (1999)). In many cases, medical evidence is required to meet the requirement that the evidence be "competent". However, when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303, 309 (2007). Service connection for certain chronic diseases may be presumed to have been incurred in service by showing that the disease manifested itself to a degree of 10 percent or more within one year (three years for active tuberculous disease and Hansen's disease; seven years for multiple sclerosis) from the date of separation from service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). Such a chronic disease is presumed under the law to have had its onset in service even though there is no evidence of that disease during the period of service. 38 C.F.R. § 3.307(a). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). 3. Service connection for hearing loss The Veteran contends that he developed hearing loss due to military acoustic trauma during the performance of his duties as an apprentice auto repairman. The determination of whether a veteran has a disability based on hearing loss is governed by 38 C.F.R. § 3.385. For the purposes of applying the law administered by VA, impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. See 38 C.F.R. § 3.385. "[W]hen audiometric test results at a veteran's separation from service do not meet the regulatory requirements for establishing a disability at that time, he or she may nevertheless establish service connection for a current hearing disability by submitting evidence that the current disability is causally related to service." Hensley v. Brown, 5 Vet. App. 155, 160 (1993). The threshold for normal hearing is from zero to 20 decibels, and higher threshold levels indicate some degree of hearing loss. Id. at 157. On VA examination in May 2013, the puretone thresholds in decibels at the tested frequencies of 1000, 2000, 3000, and 4000 Hertz were 25, 10, 15, and 20, in the right ear, and 40, 35, 25, and 45, in the left ear. Speech discrimination was 100 percent in the right ear and 78 percent in the left ear. Initially, the Board notes that the current medical evidence shows that the Veteran has a left ear hearing loss disability as defined by 38 C.F.R. § 3.385. Concerning the right ear, while the Veteran may have impaired hearing in his ear, his hearing loss has not been shown to meet the criteria to be considered a disability for VA purposes. Nonetheless, the discussion below will assume (but not concede) for purposes of argument that the Veteran has a right ear hearing loss disability. Here, the Veteran has specifically reported that he was exposed to acoustic trauma during service auto and jet engine noise during his nearly five months period of active duty service. His DD 214 shows that his military occupational specialty (MOS) was an apprentice auto repairman, which corroborates his report of in-service noise exposure. However, even if the Veteran was exposed to acoustic trauma during service, this is not the same as having sustained the type of injury that causes chronic hearing loss. In other words, even if he was exposed to acoustic trauma during service, this does not automatically mean there were chronic residuals, including a hearing loss by VA standards, which was caused thereby. The service treatment records do not indicate any complaints or diagnosis of hearing loss during service and the Veteran denied a history of hearing loss (some of the Veteran's own prior statement provide evidence against his claim). Thus, there is no competent evidence showing a hearing loss disability consistent with 38 C.F.R. § 3.385 during the Veteran's limited period of active duty service. Nor is there competent evidence showing a hearing loss disability within one year after the Veteran's separation from service in May 1966. After service, on periodic examination in July 1968, an audiogram recorded the puretone thresholds in decibels at the tested frequencies of 500, 1000, 300, 2000, and 4000 Hertz were 25, 0, 0, 5, and 15, in the right ear; and 5, 0, 5, 5, and 5 in the left ear. A periodic examination report in and August 1969, showed the puretone thresholds in decibels at the tested frequencies of 500, 1000, 300, 2000, and 4000 Hertz were -5, -10, -10, -5, and 0, in the right ear; and -10, 0, 0, 0, and 0 in the left ear. The Veteran denied a history of hearing loss. VA treatment notes show that in April 1989 the Veteran reported decreased hearing in the left ear. A May 1989 audiogram graph appears to show puretone thresholds under 20 decibels at 1000, 300, 2000, and 4000 Hertz, bilaterally. The next complaint of decreased hearing was not until April 1993, at which his hearing improved when ear wax was removed. A hearing test done in July 1993 showed hearing within normal limits, with puretone thresholds under 15 decibels at the tested frequencies of 1000, 300, 2000, and 4000 Hertz. In September 1998 the Veteran complained of decreased hearing. A December 1998 audio treatment note showed a history of decreased hearing for the past three years. Examination showed mild sensorineural hearing loss at 6000 Hertz and 8000 Hertz on the right, and mild to moderate sensorineural hearing loss at 250 - 2000 Hertz in the left ear with poor ear recognition. The first recorded symptomatology of hearing loss is found after 1989. This multi-year gap between treatments is one factor, among others, weighing against a finding of continual symptoms since service. See Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000) (lengthy period of absence of medical complaints for condition can be considered as one factor in resolving a claim); Mense v. Derwinski, 1 Vet. App. 354, 356 (1991) (affirming Board's denial of service connection where Veteran failed to account for lengthy time period between service and initial symptoms of disability). The Board acknowledges that symptoms, not treatment, are the essence of any evidence of continuity of symptomatology. However, as noted above, the Veteran has not reported continuous symptoms of hearing loss since service separation. For these reasons, the Board finds that the weight of the evidence is against a finding of chronic symptoms in service or continuity of symptomatology after service. Id. The post-service record provides particularly negative evidence against this claim, some from the Veteran himself. In addition, as discussed above, neither hearing loss was shown within the first year of discharge and the presumptions 38 U.S.C. §§ 1112, 1113, 1137 and 38 C.F.R. §§ 3.307, 3.309 do not apply. The Board further finds that the weight of the evidence demonstrates that any current hearing loss is not otherwise related to active service, to include the in-service noise exposure. On VA examination in May 2013, the VA examiner opined that it was less likely than not that the Veteran's hearing loss was due to military noise exposure because hearing loss was within normal limits during his time in the service wand for years after discharge from service. Specifically, when the Veteran's hearing was tested in May1989 and July 1993 revealed normal hearing for both ears. The examiner relied on the multiple audiograms during service and following discharge from service (July 1968, August 1969, May 1989 and July 1993), which consistently showed hearing within normal limits. The Board finds that the May 2013 VA examination report was adequate for evaluation purposes and highly probative. Specifically, the VA examiner reviewed the claims file, interviewed the Veteran, and conducted audiometric testing. There is no indication that the VA examiner was not fully aware of the Veteran's past medical history and in-service noise exposure or misstated any relevant fact. The VA examiner cited to the service treatment records and audiometric testing conducted therein, and provided adequate rationale in support of the opinion. The opinion is internally consistent and consistent with other evidence of record. Moreover, the VA examiner had the requisite medical expertise to render a medical opinion regarding the etiology of the bilateral hearing loss and had sufficient facts and data on which to base his conclusions. As such, the Board accords the May 2013 VA examination report great probative weight. The Veteran has contended throughout the course of this appeal that the current bilateral hearing loss was caused by the in-service noise exposure. Under the facts of this case that include no continuous post-service symptoms for many years, the Board finds that the Veteran does not have the requisite medical knowledge, training, or experience to be able to render a competent medical opinion regarding the cause of medically complex disorders such as bilateral sensorineural hearing loss, as defined by VA regulations. Bilateral hearing loss can have various etiologies, such as acoustic trauma, head trauma, diseases, ototoxic drugs, etc. The ultimate questions in this case are related to an internal medical process which extend beyond an immediately observable cause and effect relationship. While the Veteran is competent to attest to hearing problems, as a lay person, it has not been shown that he had specialized training sufficient to determine the etiology of bilateral hearing loss, especially when the onset date is several decades after service. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Such competent evidence has been provided by the VA examiner. The Board finds the medical opinion rendered by the VA examiner to be significantly more probative than the Veteran's lay assertions. Simply stated, both the best medical evidence in this case, and the facts of this case, provide highly probative evidence against the claims. For the above reasons, the evidence thus weighs against a finding that the Veteran's hearing loss was incurred service. Rather, the evidence persuasively weighs against the claim. The benefit of the doubt doctrine, see 38 U.S.C. § 5107 (b), 38 C.F.R. § 4.3, is therefore not for application in this regard. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). 4. Service connection for tinnitus The Veteran seeks service connection for tinnitus as due to military noise exposure. The Veteran is competent to testify to observable symptoms such as ringing in his ears and has done so credibly during the course of this claim (and the hearing), and a VA examiner in May 2013 appeared to have found the Veteran's account of current tinnitus credible. Layno v. Brown, 6 Vet. App. 465 (1994); Charles v. Principi, 16 Vet. App. 370 (2002) (finding a lay person competent to identify tinnitus). Thus, a current disability has been established. As noted, here the Board finds that the Veteran's competent lay account of having been exposed to excessive military noise is consistent with the types, places and circumstances of his service, and exposure to in-service acoustic trauma is conceded. Post service treatment records show that since approximately 1993 the Veteran complained or left ear humming, long-standing tinnitus. In connection with treatment in 2006, the Veteran reported significant noise exposure during the Vietnam War from loud jet engine noise, and described constant left ear tinnitus since service. The May 2013 VA examiner confirmed a diagnosis of recurrent tinnitus for many years. However, the examiner opined that tinnitus was at least as likely as not related to the Veteran's hearing loss which was not service related. Additionally, there was no objective evidence that tinnitus condition began in or was caused by active duty service. A veteran is competent to describe observable symptoms such as ringing in the ears. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Charles, 16 Vet. App. 370, 374-75 (2002). The Veteran testified that tinnitus manifested during service. The Veteran has reported onset of tinnitus during active duty service. The Board also acknowledges that the VA examiner provided evidence against the claim. However, because there is a current diagnosis of tinnitus, statements from the Veteran regarding onset of tinnitus during active duty service associated with in-service noise exposure, there is evidence of acoustic trauma during service, and in-service acoustic trauma has been conceded, the Board finds that the competent and credible assertions from the Veteran provides a nexus linking his current tinnitus to his in-service noise exposure. Resolving all reasonable doubt in the Veteran's favor, the Board finds that the competent and credible evidence creates a nexus between the Veteran's current tinnitus and active service. Therefore, service connection for tinnitus is granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch, supra. John J. Crowley Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Azizi, T. The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.