Citation Nr: 23051549 Decision Date: 09/19/23 Archive Date: 09/19/23 DOCKET NO. 15-06 388A DATE: September 19, 2023 ORDER Entitlement to a rating in excess of 10 percent for left ankle disability is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from January 7, 2021, is granted. REMANDED Entitlement to a TDIU on an extraschedular basis prior to January 7, 2021, is remanded. FINDINGS OF FACT 1. At no point during the appeal period did the Veteran's left ankle disability result in marked limitation of motion nor was dorsiflexion less than 5 degrees or plantar flexion less than 10 degrees. 2. From January 7, 2021, resolving doubt in favor of the Veteran, his service-connected disabilities meet the percentage requirements for a schedular TDIU and preclude him from securing and following substantially gainful employment consistent with his work and education background. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for left ankle disability have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.2, 4.3, 4.7, 4.10, 4.21, 4.59, 4.71a, Diagnostic Code 5271. 2. From January 7, 2021, the criteria for a total disability rating based on individual unemployability due to service-connected disabilities have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1981 to July 1989. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2013 rating decision. In an April 2018 Board hearing, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is in the record. In August 2018, April 2019, and November 2021, the Board remanded this matter for additional development. The Board finds that there has been substantial compliance with the Board's former remands and the matter is ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). 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). 1. Entitlement to a rating in excess of 10 percent for left ankle disability is denied. The Veteran seeks a higher rating for his left ankle disability, currently rated 10 percent disabling. Disability evaluations are determined by application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See 38 C.F.R. § 4.14; see also Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran's left ankle disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5271, for limitation of motion of the ankle. Under Diagnostic Code 5271, a 10 percent rating is warranted for moderate limited motion of the ankle and a 20 percent rating is warranted for marked limited motion of the ankle. Id. Effective February 7, 2021, VA amended the rating criteria for Diagnostic Code 5271. 85 Fed. Reg. 76,453 (Nov. 30, 2020). Under the new criteria, a 10 percent rating is warranted for moderate limited motion of the ankle (less than 15 degrees dorsiflexion or less than 30 degrees plantar flexion.) A 20 percent rating is warranted for marked limited motion of the ankle (less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion.) As this regulatory change was enacted during the pendency of this appeal, the Board will consider both the old and new versions of the rating criteria from the effective date and apply the version most favorable to the Veteran. Descriptive words such as "moderate" and "marked" are not defined in the Rating Schedule. The Board finds, however, that these terms are unambiguous and, therefore, a plain dictionary meaning is an appropriate definition. Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); see also 38 C.F.R. § 4.6 (noting, in general, the Board does not evaluate evidence by applying a mechanical formula, but rather conscientiously to the end that its decisions are equitable and just). According to Merriam Webster dictionary, "moderate" means "tending toward the mean or average amount or dimension". See www.merriam-webster.com/dictionary/moderate. "Marked" means "having a distinctive or emphasized character". See www.merriam-webster.com/dictionary/marked. 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 factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). 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." Correia v. McDonald, 28 Vet. App. 158 (2016). 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. Sharp v. Shulkin, 29 Vet. App. 26 (2017). A February 2013 VA examination was conducted. The Veteran reported pain, swelling, and a cold feeling. The Veteran did not report flare-ups. Range of motion testing showed plantar flexion to 45 degrees and dorsiflexion to 15 degrees, without additional limitation of motion after repetitive use testing. Muscle strength and instability testing were normal. There was no ankylosis. In September 2014, the Veteran underwent a VA examination. The examiner noted that the Veteran uses a nerve stimulator regularly. The Veteran did not report flare-ups. Range of motion testing showed plantar flexion to 50 degrees and dorsiflexion to 10 degrees. Repetitive use testing showed plantar flexion to 45 degrees and dorsiflexion to 10 degrees. The examiner noted less movement than normal, pain on movement, and disturbance of locomotion. Muscle strength and instability testing was normal. There was no ankylosis. In November 2016, the Veteran underwent a VA examination. The Veteran reported pain and a cold feeling. The Veteran reported flare-ups with swelling. The examiner noted that that the Veteran regularly uses a nerve stimulator. Range of motion testing showed plantar flexion to 20 degrees and dorsiflexion to 10 degrees. Repetitive testing did not result in additional limitation. The examiner did not opine as to limitation of motion with repeated use over time or during flare-ups, explaining that estimation could not be made without resort to speculation. The examiner noted limited movement, disturbance of locomotion, and interference with standing. Muscle strength and instability testing were normal. During the April 2018 Board hearing, the Veteran reported that his ankle had worsened, and that pain and weakness affects his functional ability with repeated use over time. He reported difficulty with prolonged walking as well as swelling and a cold feeling. He reported treatment for pain. In July 2018, the Veteran underwent examination. The Veteran reported intermittent flare-ups of throbbing left ankle pain, swelling, and a cold feeling. Range of motion testing showed plantar flexion to 20 degrees and dorsiflexion to 5 degrees. There was no additional limitation with repetitive testing. As to limitation with repeated use over time and during flare-ups, the examiner was unable to say without mere speculation. Muscle strength testing was normal. There was no ankylosis. Ankle instability was suspected but both Anterior Drawer and Talar Tilt tests were normal. The examiner noted no laxity compared with the right ankle. In July 2020, the Veteran underwent examination. The examiner noted that the Veteran refractured his left calcaneus in 2020. The Veteran reported increased difficulty with standing, walking, climbing inclines, running, and some decreased sensation, numbness, and tingling along with constant pain. The Veteran did not report flare-ups but did report aggravation of his condition with certain activities. Range of motion testing was normal, with plantar flexion to 45 degrees and dorsiflexion to 20 degrees. The examiner opined that lack of endurance would limit plantar flexion to 40 degrees and dorsiflexion to 15 degrees with repeated use over time. There was no ankylosis. The examiner noted the Veteran regularly uses a cane. The examiner noted plantar flexion and dorsiflexion strength were 4 out of 5 but then noted that there was no reduction in muscle strength. The examiner noted malunion of calcaneus with moderate deformity. The examiner opined that the Veteran's 2020 calcaneus fracture is a new injury and not service connected as the injury occurred more than 30 years after service. In October 2021, the Veteran underwent VA ankle examination. The Veteran reported that his ankle causes poor balance and that he falls frequently. He reported that he broke his left ankle again in 2020 and was treated with an air cast. He reported his disability has worsened over time. He reported pain, numbness, swelling, instability, and his foot feels cold. The Veteran did not report flare-ups. He reported difficult walking, standing, and climbing stairs. Range of motion testing was normal, with plantar flexion to 45 degrees and dorsiflexion to 20 degrees. There was no additional loss of function after three repetitions. The examiner opined that procured evidence does not suggest pain, fatigability, weakness, lack of endurance, or incoordination significantly limits functional ability with repeated use or during flare-ups. The examiner noted no ankylosis. Anterior Drawer and Talar Tilt tests were normal. The examiner noted that the Veteran uses a cane regularly. The Veteran underwent VA examination in February 2022. The Veteran reported left ankle pain, feeling cold, foot swelling, and a tingling into his left leg with some numbness. The Veteran reported flare-ups with increased pain and swelling 2-3 times per week lasting 2 hours, and sometimes falling. He reported limitations with prolonged walking, standing, kneeling, squatting, and running, and difficulty wearing shoes during flare-ups. As to instability, the Veteran reported that he sprained his left ankle multiple times. Active range of motion testing showed plantar flexion to 30 degrees and dorsiflexion to 20 degrees. The Veteran exhibited pain on both plantar flexion and dorsiflexion. Passive range of motion was the same. There was evidence of pain on weight-bearing, and in active motion and passive motion but not in non-weight-bearing. The examiner opined that pain does not result in or cause functional loss. On palpation, the examiner noted tenderness, pressure sensation, and strange sensation of the skin. With repetitive use, plantar flexion decreased to 25 degrees and dorsiflexion to 15 degrees due to pain and weakness. The examiner opined that pain and weakness would limit the Veteran's plantar flexion to 20 degrees and his dorsiflexion to 10 degrees with repeated use over time and during flare-ups. The examiner noted swelling with repeated use and during flare-ups. There was no muscle atrophy. There was no ankylosis. Anterior Drawer and Talar Tilt tests for asymmetric or excessive motion were negative. The examiner explained that the Veteran's right ankle was not tested as it is also damaged. The examiner noted occasional use of a brace, cane, and walking boot. The February 2022 examiner also provided a retrospective opinion. The examiner opined that, based on previous examinations and the current examination, plantar flexion of left ankle would be limited to approximately 20 degrees and dorsiflexion of left ankle would be limited to approximately 10 degrees after repeated use over time and during flare-ups. The Veteran's treatment records show complaints of pain and swelling and some limitation of motion, with dorsiflexion to 10 degrees. See, e.g., August 2015 VA Treatment Record (noting range of motion of left ankle is decreased); September 2016, June 2020 VA Treatment Records (noting dorsiflexion of ankles to 10 degrees). The Veteran was treated with a neurostimulator for pain. The Board notes at the outset that the evidence currently of record is adequate to determine the extent and severity of the Veteran's left ankle disability. The February 2022 examiner tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing, in accordance with Correia. After examination of the Veteran, the February 2022 examiner also reviewed the prior examinations and current examination and opined that pain and weakness would limit the Veteran's range of motion with repeated use over time and during flare-ups, to 20 degrees plantar flexion and 10 degrees dorsiflexion throughout the claims period. Given the totality of the information in this case, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed. DeLuca v. Brown, 8 Vet. App. at 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158. The Board finds that there has been substantial compliance with the Board's former remands and the matter is ready for adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). Viewing the evidence as a whole, the Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for the Veteran's left ankle disability throughout the appeal period. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakness, cold feelings, lack of endurance, and flare-ups. However, even considering the Veteran's lay reports of symptoms and functional loss, and additional limitation during flare-ups, the degree of additional limitation reflected by the statements does not result in limitation so distinctive or emphasized that it would more nearly approximate marked limited motion of the ankle. Range of motion testing during the seven VA examinations showed plantar flexion limited to at worst 20 degrees and dorsiflexion limited to at worst 5 degrees. The February 2022 VA examiner reviewed the previous examinations and examined the Veteran and opined that the Veteran's plantar flexion would be limited to approximately 20 degrees and dorsiflexion to approximately 10 degrees after repeated use over time and during flare-ups throughout the appeal period. The Veteran's left ankle disability as a whole tends toward an average amount of limitation; it does not more nearly approximate limitation so distinctive or emphasized as to rise to the level of marked limited motion of the ankle. Viewing the evidence under the new rating criteria, effective February 7, 2021, the evidence still persuasively weighs against a rating in excess of 10 percent for the Veteran's left ankle disability. As set forth above, the Veteran's ankle motion, while limited, does not meet the new criteria corresponding to a higher 20 percent rating, which requires limitation of less than 5 degrees dorsiflexion or less than 10 degrees plantar flexion. The Board has also considered whether any other Diagnostic Codes related to disabilities of the ankle would provide for a higher disability rating. However, the evidence does not reflect that the symptoms would warrant a higher rating under a different Diagnostic Code. See 38 C.F.R. § 4.71a. Since ankylosis has not been shown, the provisions of Diagnostic Code 5272, which govern ankylosis of the subastragalar or tarsal joint, are not applicable to the current claim. With regard to Diagnostic Code 5273, for malunion of the os calcis or astragalus, the July 2020 examiner noted malunion of calcaneus with moderate deformity. However, the July 2020 examiner opined that the Veteran's recent fracture was a new injury and not related to service. Finally, with regard to Diagnostic Code 5274, the medical evidence is without complaints of or treatment for an astragalectomy of the ankle, which involves removal of the ankle bone. The Board finds that the Veteran's left ankle disability, including pain and limitation of motion, is fully capable of evaluation under the rating schedule. In conclusion, the Board finds that the evidence of record persuasively weighs against the Veteran's appeal for a rating in excess of 10 percent for left ankle disability. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a TDIU from January 7, 2021, is granted. The Veteran seeks a TDIU, asserting that his combined service-connected disabilities render him unemployable. TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more, but if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. For the purposes of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a); see Moody v. Wilkie, 30 Vet. App. 329, 339 (2018) (combining disabilities as "one disability" to meet the rating threshold of § 4.16(a) requires the use of the combined rating table). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. The ultimate question of whether a Veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As of January 7, 2021, the Veteran was service connected for back disability, rated 40 percent disabling, migraine headaches, rated 30 percent disabling, left and right lower extremity radiculopathy, each rated 10 percent disabling, left ankle, rated 10 percent disabling, tinnitus, rated 10 percent disabling, and hearing loss and scars, rated noncompensable. The Veteran's combined rating was 70 percent and his back disability was rated at 40 percent. The Veteran thus meets the schedular rating for TDIU as of January 7, 2021. Therefore, the remaining inquiry is whether the Veteran's service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation during that time. In his TDIU applications, the Veteran reported that he worked in corrections until 2010 or 2011 when he became too disabled to work. He reported that he left his job due to disability. The Veteran's TDIU applications show that he finished high school and one or two years of college along with corrections training. As to the Veteran's service-connected back disability, examiners in February 2021, April 2021, and October 2021 noted difficulty sitting, standing, walking, and climbing stairs. Examiners noted limitations in bending, twisting, squatting, leaning, lifting, and physical exertion. In April 2021, the Veteran reported flare-ups which occur multiple times a week for 30-45 minutes at a time, during which he is unable to walk or sit and has to lie down with a heating pad. As to the Veteran's lower extremities, an October 2021 VA examiner opined that the Veteran's service-connected lower extremity radiculopathy results in difficulty walking, climbing stairs, and standing. The October 2021 VA ankle examiner opined that the Veteran's service-connected left ankle disability causes difficulty walking, standing, and climbing stairs. The February 2022 VA ankle examiner noted intolerance to prolonged walking, standing, driving, kneeling, and squatting, difficulty wearing shoes, and inability to run. As to the Veteran's service-connected migraine disability, the Veteran reported incapacitating headaches causing vomiting and requiring him to lay down which last from 2 hours to all day. See November 2016 VA Examination Report. He reported nausea, vomiting, and sensitivity to sound and light with his headaches, which require rest in a dark room. See July 2018 VA Examination Report. The Veteran's service-connected hearing loss and tinnitus disabilities interfere with sleeping and result in trouble hearing and understanding others, especially in group situations and noisy environments. See March 2021 VA Examination Report. Given the Veteran's functional impairment due to his combined service-connected disabilities, including limitations in sitting, standing, walking, and driving, and interference with hearing others and with sleep, and needing to rest during back flare-ups and migraine attacks, and his occupational history of work in corrections, the Board finds the evidence is at least in approximate balance as to whether the Veteran's service-connected disabilities prevent him from securing and maintaining gainful employment. Considering the Veteran's service-connected disability picture as a whole, and resolving reasonable doubt in favor of the Veteran, entitlement to a TDIU is granted from January 7, 2021. REASONS FOR REMAND 1. Entitlement to a TDIU on an extraschedular basis prior to January 7, 2021, is remanded. Remand of the Veteran's claim for TDIU prior to January 7, 2021, is required for referral of the claim to the Director, Compensation Service, for extraschedular consideration. Prior to January 7, 2021, the Veteran does not meet the percentage requirements set forth in § 4.16(a). At that time, the Veteran was service connected for back disability, rated 20 percent disabling, migraine headaches secondary to back disability, rated 30 percent disabling, left ankle, rated 10 percent disabling, tinnitus, rated 10 percent disabling, and hearing loss, rated noncompensable. His combined rating was 60 percent, and he therefore did not meet the schedular rating for TDIU at that time. Therefore, the Board may not consider his claim for a TDIU prior to January 7, 2021 in the first instance but will refer it to the Director, Compensation Service, when there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities." 31 Vet. App. 58, 66 (2019). Here, viewing the lay and medical evidence as a whole, the Board finds sufficient evidence to suggest a reasonable possibility that the Veteran was unemployable due to his service-connected disabilities prior to January 7, 2021. The Veteran has worked as a corrections officer, with a high school education supplemented by a year of college and corrections officer training. He reported that he left this job due to disability and that his service-connected disabilities prevent him from substantially gainful employment. The Board notes that the Veteran's service-connected back disability results in limitations walking, lifting, and bending. See July 2018 VA Examination Report. His service-connected left ankle disability results in limitations with standing, walking, and climbing inclines. See, e.g., July 2020 VA Examination Report. The Veteran's service-connected migraine disability causes headaches with nausea, vomiting, and sensitivity to sound and light, which require rest in a dark room. See, e.g., November 2016, July 2018 VA Examination Reports. The Veteran's service-connected hearing loss and tinnitus disabilities impact his ability to work in that he cannot hear people clearly and has difficulty with background noise. See September 2019 VA Examination Report. The Veteran's functional limitations together, in light of his educational and occupational background, provide sufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable due to his service-connected disabilities prior to January 7, 2021. Accordingly, remand is warranted for referral of the claim for a TDIU prior to January 7, 2021, to the Director, Compensation Service, for extraschedular consideration. The matters are REMANDED for the following action: Refer this case to the Director, Compensation Service, for extraschedular consideration of TDIU prior to January 7, 2021, pursuant to 38 C.F.R. § 4.16(b). K. MILLIKAN Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Purcell, 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.