Citation Nr: A24029727 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 221123-301196 DATE: June 6, 2024 ORDER Service connection for a low back disability, manifested by pain and limited motion is granted. A 70 percent rating for posttraumatic stress disorder (PTSD) is granted for the period on appeal from September 24, 2020, to November 16, 2021. A rating in excess of 70 percent for PTSD is denied. REMANDED Entitlement to a total rating based on individual unemployability based on service-connected disability (TDIU) is remanded. Entitlement to service connection for a bruise of the left hip is remanded. Entitlement to a rating in excess of 10 percent for left hip trochanteric bursitis is remanded. Entitlement to a compensable disability rating for limitation of flexion of the left hip is remanded. Entitlement to a compensable disability rating for limitation of abduction/adduction of the left hip is remanded. FINDINGS OF FACT 1. Resolving doubt in the Veteran's favor, the Veteran's low back disability characterized by painful limited motion had its onset in service. 2. The severity, frequency, and duration of the Veteran's PTSD symptoms more closely approximate occupational and social impairment with deficiencies in most areas than from September 24, 2020, to November 16, 2021. 3. The evidence is persuasively against finding that the severity, frequency, and duration of the Veteran's PTSD symptoms approximate total occupational and social impairment at any time during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for low back disability characterized by painful limited motion have been met. 38 U.S.C. §§ 1110, 1154(a), 5107(b); 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a disability rating of 70 percent for PTSD are met for the period on appeal prior from September 24, 2020, to November 16, 2021. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411 3. The criteria for a disability rating in excess of 70 percent for PTSD are not met at any time during the period on appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9411. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 2008 to February 2010, including service in the Persian Gulf. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2021 and March 2022 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In November 2022, the Veteran submitted a VA Form 10182 Notice of Disagreement (NOD) under the Appeals Modernization Act (AMA) framework, electing the hearing lane by the Board. The Veteran testified before a Veterans Law Judge (VLJ) in a January 2024 hearing. The transcript of the Board hearing is of record. At the hearing the Veteran waived the 90-day period following the hearing during which she could submit additional evidence in support of his appeal. 38 C.F.R. § 20.300 (b). The Board will proceed to adjudicate this matter. Service Connection Service connection may be granted for a disability resulting in a disease or injury that is incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 U.S.C. § 3.303. To establish service connection for the claimed disorder, the following criteria must be met: (1) evidence of a current disability; (2) evidence of an in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and current disability. See 38 C.F.R. § 3.303; see also Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection may be granted for any disease initially diagnosed after service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Certain chronic diseases, to include arthritis will be presumed related to service if they were noted as chronic in service; or, if they manifested to a compensable degree within a presumptive period following separation from service; or, if continuity of the same symptomatology has existed since service, with no intervening cause. 38 U.S.C. § § 1101, 1112, 1113, 1137; Walker v. Shinseki, 708 F.3d 1331, 1338 (Fed. Cir. 2012); Fountain v. McDonald, 27 Vet. App. 258 (2015); 38 C.F.R. §§ 3.303 (b), 3.307, 3.309(a). Service connection may be granted on a secondary basis for a disability which is proximately due to or the result of a service-connected disease or injury under 38 C.F.R. § 3.310. Allen v. Brown, 7 Vet. App. 439 (1995). In order to establish service connection on a secondary basis, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a link between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether the weight of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. To deny a claim on its merits, the weight of the evidence must persuasively stand against a finding that the evidence is in "approximate balance" or "nearly equal" to the evidence that supports the claim. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303 (2007) (Observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The Board also notes that under certain circumstances, lay evidence may be sufficient to establish a nexus. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994). Lay evidence has been found to be competent with regard to a disease that has "unique and readily identifiable features" that are "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007); see also Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). Service connection for a low back disability characterized by pain and limited motion is granted. The Veteran asserts that she has a low back disability characterized by pain and limited motion as a result of rigorous experiences in service, present since service, which began when she injured her left hip which is now service connected. In the November 2021 rating decision on appeal, the RO found that the claim of service connection for a back disability remained denied. It was noted that the claim arose from an October 2021 Request for Higher Level Review following a November 2020 rating decision denying service connection for back disability. Favorable findings in the November 2021 rating decision, binding on the Board, include that the evidence shows that a qualifying event, injury, or disease had its onset during service inasmuch as service treatment records note a complaint of back pain in October 2008. The Board notes that she has consistently reported she injured her back concurrent with injuring her left hip, and that the problem continued throughout her time in Kuwait and Iraq where she was a refueler, to the present. See January 2024 Hearing Transcript, November 2020 VA back examination. Here, all three elements of service connection are established by the competent and credible lay and medical evidence of record as to low back disability. 38 U.S.C. § 1110; 38 C.F.R. § 3.303; Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service treatment records show a negative lumbosacral spine X-ray in response to low back pain in October 2008. Back pain was also noted during several medical encounters in 2009. The January 2010 separation examination noted a denial of recurrent back problems. The November 2020 VA back examination reflects no current diagnosis for the back despite the history and current complaints of pain. As to the low back claim, the existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110. Even in the absence of a diagnosed disability, evidence of functional limitations due to symptoms can meet this requirement. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). Specifically, in Saunders v. Wilkie, the Federal Circuit found that the term "disability," as used in 38 U.S.C. § 1110, refers to the functional impairment of earning capacity, not the underlying cause of said disability, and held that pain alone can serve as a functional impairment and therefore qualify as a disability. To establish the presence of a disability pursuant to Saunders, there must be competent evidence specific to the claimant tending to show that his or her impairment rises to a level to affect earning capacity, which may include showing manifestations of a similar severity, frequency, and duration as those VA has determined by regulation would cause impaired earning capacity in an average person. Wait v. Wilkie, 33 Vet. App. 8, 17 (2020). The Board has the benefit of the Veteran's testimony. This clearly articulates that the Veteran has symptoms of pain and limited motion of the low back that began in service during her rigorous activities as described, to include in Iraq, and have continued to the present. She specifically testified that the symptoms began when she injured her service-connected left hip. As a finder of fact, the Board finds, consistent with Wait, there is functional impairment imposed by the Veteran's low back condition, thus the requirement for service connection that a current disability be present is satisfied. See Saunders, 886 F.3d 1356. Indeed, the Veteran's pain, limited range of motion and described symptoms functionally similar in severity, frequency, and duration as symptoms VA has enumerated in diagnostic criteria to include criteria related to lumbar strain. See Diagnostic Code 5237. Moreover, both the Veteran's testimony and lay statements reflect that the Veteran has had ongoing symptoms to include pain and limited range of motion since the initial manifestation as described in service. Further, as to nexus, the Board finds that the testimony, in combination with the lay statements, constitutes competent and credible evidence that her current low back disability symptoms began during service and have been recurrent since that time. See Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board acknowledges the negative November 2020 VA nexus opinion of record as to the low back; however, because the Board finds the Veteran's reports that low back issues have been recurrent since service, when she incurred her left hip injury, to be credible, service connection is warranted. The Board notes that the Veteran reported in her November 2020 examination that the back pain and strain began while she was in service when the left hip issue began. The rationale for the negative opinion cited that records were reviewed and there is notation of visits regarding mid/lower back pain of which claimant was treated, noted on Report of Medical Exam (separation exam) mid/lower back pain. The examiner stated there was no objective finding on the day of the 2020 exam to support a diagnosis and concluded a back condition is less likely than not incurred in or caused by low back pain during service. The November 2020 VA opinion is afforded no probative value as the examiner did not address the Veteran's competent lay report of disability beginning in service in the rationale as well as the Veteran's report that the condition started in 2009 from a lack of balance when walking, sitting, running, laying due to hip pain. It was also reported that when the condition began the symptoms were sharp pain to the lower back and though it had been treated current symptoms are sharp stabbing pain, stiffness, and poor back posture. It had also been noted that Tylenol and Ibuprofen were taken but had become less effective. Indeed, the examiner had noted the impact of the condition was difficulties with work and sitting for long periods and having pain when having to stand, and at times movement is very slow. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (probative value of a medical opinion is derived from it being factually accurate, fully articulated, and soundly reasoned); see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007); Miller v. Wilkie, 32 Vet. App. 249, 260 (2020). For the above reasons, the evidence is, at worst, evenly balanced or approximately so with regard to whether the Veteran's current low back disability manifested by pain and limited motion had its onset during service. See Flynn v. Brown, 6 Vet. App. 500, 503 (1994). See Flynn v. Brown, 6 Vet. App. 500, 503 (1994) (noting that "the element of cause and effect has been totally by-passed in favor of a simple temporal relationship between the incurrence of the disability and the period of active duty"); see also 38 C.F.R. § 3.303 (a) (Service connection connotes many factors but basically it means that the facts, shown by evidence, establish that a particular injury or disease resulting in disability was incurred coincident with service in the Armed Forces). In light of the foregoing, and after resolving any doubt in the Veteran's favor, the Board finds that service connection for the above low back disability characterized by painful limited motion is warranted. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Increased Rating The Veteran asserts that her service-connected PTSD warrants higher ratings and specifically at least that the 70 percent rating should be in effect from September 23, 2020, rather than just from November 16, 2021. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 1. A 70 percent rating for PTSD is granted for the period on appeal from September 24, 2020, to November 16, 2021. 2. A rating in excess of 70 percent for PTSD is denied. The Veteran's rating for PTSD throughout the appeal period is assigned under Diagnostic Code 9411. 38 C.F.R. § 4.130. Service connection for PTSD was granted in a November 2020 rating decision (with notice to Veteran dated November 27, 2020). PTSD is rated 50 percent from September 24, 2020, the date of the claim for service connection, and 70 percent from November 16, 2021, the date of a supplemental claim for increased rating in excess of 50 percent. It is noted that in January 2022, the Veteran underwent a PTSD examination which yielded the finding that there was occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood consistent with a 70 percent rating but not total occupational and social impairment as required for a 100 percent rating. Suicidal ideation was noted as one of the symptoms the Veteran was experiencing but also it was noted that at the time of the evaluation, suicidal and homicidal ideation, plan, preparation and intent were denied. The Board acknowledges that the period on appeal stems from September 24, 2020, as this claim has been continuously prosecuted since that time. Relevant to this claim, the disability is rated using the General Rating Formula for Mental Disorders (General Formula). Under that Formula: A 70 percent disability rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The Board notes the Court has concluded that there are no descriptors, modifiers, or indicators as to suicidal ideation in the 70 percent rating. The presence of suicidal ideation alone, that is, a Veteran's thoughts of his or her own death or thoughts of engaging in suicide-related behavior, may cause occupational and social impairment with deficiencies in most areas. Bankhead v. Shulkin, 29 Vet. App. 10, 21 (2017). Under the General Formula for Mental Disorders, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead, 29 Vet. App. at 22; 38 C.F.R. § 4.130. The Board must determine whether unlisted symptoms are similar in severity, frequency, and duration to the listed symptoms associated with specific disability percentages. Then, the Board must determine whether the associated symptoms, both listed and unlisted, caused the level of impairment required for a higher disability rating. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 114-118 (Fed. Cir. 2013). As the evidence considered in determining the level of impairment under 38 C.F.R. § 4.130 is not restricted to the symptoms provided in the code, the Board must consider all symptoms of a claimant's condition that affect occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436, 443 (2002). If the evidence demonstrates that a Veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the Diagnostic Code, the appropriate, equivalent rating will be assigned. Id.; see also Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). The Board finds that for the period on appeal from September 24, 2020, to November 16, 2021, the Veteran's service-connected PTSD has been productive of occupational and social impairment in most areas due, at least in part, to suicidal ideation. See Bankhead, 29 Vet. App. at 21. For increased rating claims, an effective date should not be assigned mechanically based on the date of a diagnosis or a VA examination report. Rather, all of the facts should be examined to determine when an increase in a veteran's disability can be ascertained. DeLisio v. Shinseki, 25 Vet. App. 45 (2011); Swain v. McDonald, 27 Vet. App. 219, 224 (2015). In this case, the Board finds that the record is persuasively against a rating in excess of 70 percent for the entire period on appeal. At the hearing, the Veteran and her representative argue in essence that the Veteran's PTSD was severely debilitating and at least met the criteria for 70 percent, primarily because she reportedly battles suicidal ideation which appears to stem from her PTSD, since at least the date she filed the claim in September 2020. Her symptoms did not become more severe suddenly upon the date she filed the supplemental claim in November 2021, but rather have remained consistent since September 24, 2020. In this regard, at her November 2020 VA PTSD examination she denied current suicidal/homicidal ideation but stated that she struggled with suicidal ideation. Upon review of the evidence, with specific emphasis on the sustained level of impairment described at the January 2024 Board hearing, the Board finds that the Veteran's disorder warrants a rating of 70 percent from September 24, 2020, to November 16, 2021. However, the evidence is neither evenly balanced nor approximately so with regard to whether a rating in excess of 70 percent rating is warranted. Rather, the evidence persuasively weighs against so finding. The records are replete with reference to the fact that she does not show most manifestations associated with total occupational and social impairment. There are no indications of gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. While the January 2022 examiner noted intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene) and neglect of personal appearance and hygiene, it was also noted that her grooming and dress seemed appropriate. She was deemed capable of handling his own affairs. See, e.g, January 2022 VA psychiatric examination. No treatment records suggest total impairment. Her testimony indicated that she works at home, with some accommodations from her employer. Based on the evidence of record, including that highlighted above, the Board finds that the evidence is approximately balanced regarding whether the Veteran's service-connected PTSD has been productive of occupational and social impairment with deficiencies in most areas throughout the appeal period prior to to include from September 24, 2020, to November 16, 2021. The benefit of the doubt doctrine applies. 38?U.S.C. §?5107(b), Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). However, the Board finds that the evidence is persuasively against finding that the criteria for a 100 percent rating are met during the entire period on appeal as outlined above. REASONS FOR REMAND 1. TDIU is remanded. A claimant has the right to one review on appeal to the Board. 38 U.S.C. § 7104 (a). In light of the Board's grant of increased rating benefits noted above, the inextricably intertwined issue of entitlement to a TDIU must be remanded for initial AOJ consideration of the merits. See Hickson v. Shinseki, 23 Vet. App. 394 (2010); 38 C.F.R. § 20.802 (a). 2. Entitlement to service connection for a bruise of the left hip is remanded. 3. Entitlement to a rating in excess of 10 percent for left hip trochanteric bursitis is remanded. 4. Entitlement to a compensable disability rating for limitation of flexion of the left hip is remanded. 5. Entitlement to a compensable disability rating for limitation of abduction/adduction of the left hip is remanded. The Board finds that remand is needed to obtain an adequate medical opinion regarding the severity of the Veteran's left hip disability and whether there is any additional disability, described as left hip bruise, for which service connection is warranted relevant to the left hip disability. Here, the November 2021 decision on appeal committed a pre-decisional duty to assist error to the extent that it relied upon an inadequate medical examination report, that is, the November 2020 VA examination report for the left hip. In Sharp v. Shulkin, the Court held that a medical opinion that a determination cannot be provided without resort to speculation is adequate when it is "clear that an examiner has 'considered all procurable and assembled data'" and the examiner's inability to provide a nonspeculative opinion "'reflect[s] the limitation of knowledge in the medical community at large' and not a limitation-whether based on lack of expertise, insufficient information, or unprocured testing-of the individual examiner." Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (quoting Jones v. Shinseki, 23 Vet. App. 382, 390 (2010)). Here, the examiner appears to have not fully considered their own functional assessment that the Veteran cannot walk, stand or sit for long periods or the report that flare-ups were reported as severe with very few moderate days, last all day, are precipitated by walking, sitting, bending and are alleviated by nothing. They found the examination neither medically consistent nor inconsistent with the Veteran's statements describing functional loss during flare up but did not provide any basis for this finding. While it is noted that the examiner stated that current treatment was 'none' they also noted the Veteran did in the past take medication to control her left hip pain. They also noted the current symptoms included the left hip pops when walking and at times she falls as if it locks after standing or sitting for too long. The impact of the condition was she could no longer run without excruciating pain in the hip, no longer walk or sit for long periods longer than 1-2 hours, lost work due to absence from severe pain in cold or extremely windy weather. Here, the examiner failed to clarify and actually address the ameliorative effect of any medication. Jones v. Shinseki, 26 Vet. App. 56 (2012) (holding that the Board, in assigning a disability rating, may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria). The November 2020 VA examination report did not provide an adequate estimation of additional limitation during flare-ups or with repetitive use or address the ameliorative effect of the Veteran's pain medications. See Sharp, 29 Vet. App. at 3; Jones, 26 Vet. App. 56. The Board finds the November 2020 VA hip examination inadequate as it failed to address the Veteran's statements. See Miller v. Wilkie, 32 Vet. App. 249 (2020) (noting that "the proper remedy is to order a new examination where a VA medical examiner fails to address the veteran's statements about medical history and the Board does not address the credibility of those statements."). The matters are REMANDED for the following action: 1. Adjudicate the claim for entitlement to a TDIU. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected left disability, and also to address whether there is a disability characterized as left hip bruise that is not already service-connected. Is there any aspect of the left hip disability that is not encompassed in the conditions characterized as for left hip trochanteric bursitis, limitation of flexion of the left hip and limitation of abduction/adduction of the left hip; specifically referenced at the hearing as left hip bruise. The examiner should provide a full description of the left hip disability and report all signs and symptoms. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Rippel, 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.