Citation Nr: 25003045 Decision Date: 03/04/25 Archive Date: 03/04/25 DOCKET NO. 19-03 330A DATE: March 4, 2025 ORDER Entitlement to a 20 percent rating, but no higher, for duodenal ulcer from March 4, 2011 to September 27, 2018 is granted. Entitlement to a rating in excess of 20 percent for right knee subluxation/lateral instability from January 5, 2015 to October 13, 2021 is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from June 26, 2018 to March 22, 2020 is granted. REMANDED Entitlement to a rating in excess of 10 percent for right knee anterior cruciate ligament (ACL) reconstruction and degenerative arthritis from January 5, 2015 to October 13, 2021 is remanded. FINDINGS OF FACT 1. From March 4, 2011 to September 27, 2018, the Veteran's duodenal ulcer was, at most, productive of continuous moderate manifestations. 2. From January 5, 2015 to October 13, 2021, the Veteran's right knee disability did not result in severe recurrent subluxation or lateral instability; moreover, he did not have unrepaired or failed repair of complete ligament tear causing persistent instability and a medical provider prescribed both an assistive device and bracing for ambulation. 3. The Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education, training, and work history from June 26, 2018. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 20 percent rating, but no higher, for duodenal ulcer from March 4, 2011 to September 27, 2018 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.114, Diagnostic Code 7305 (2018). 2. The criteria for entitlement to a rating in excess of 20 percent for right knee subluxation/lateral instability from January 5, 2015 to October 13, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5257. 3. The criteria for entitlement to a TDIU from June 26, 2018 to March 22, 2020 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1978 to January 1985. These matters are before the Board of Veterans' Appeals (Board) on appeal from several rating decisions issued by a Department of Veterans Affairs (VA) Regional Office. In May 2022, the Veteran testified before the undersigned Veterans Law Judge at a virtual hearing. In a December 2023 decision, the Board, in part, denied the claims presently on appeal. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In November 2024, the Court issued an Order to vacate the portion of the Board decision that denied the claims on appeal and remanded the matters for readjudication consistent with instructions outlined by the parties in a Joint Motion for Partial Remand (JMPR). The case is now returned to the Board. Increased Rating Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; see generally 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 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 making disability determinations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). However, in all increased rating claims, when the factual findings show distinct time periods during which the veteran exhibited symptoms of disability and such symptoms warrant different disability ratings, staged ratings may also be assigned. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 780-81 (Fed. Cir. 2021). 1. Entitlement to a rating in excess of 10 percent for duodenal ulcer from March 4, 2011 to September 27, 2018 The Veteran's duodenal ulcer is rated 10 percent disabling from March 4, 2011 to September 27, 2018, pursuant to 38 C.F.R. § 4.114, Diagnostic Code 7305 (2018). He generally contends that his symptoms were more severe than reflected by the assigned rating during this period. Diagnostic Code 7305 (2018), which no longer exists, but was in effect during the appeal period, assigned a 10 percent rating for mild duodenal ulcer with recurring symptoms once or twice yearly. A 20 percent rating was assigned for moderate duodenal ulcer with recurring episodes of severe symptoms two or three times a year averaging 10 days in duration; or with continuous moderate manifestations. A 40 percent rating was assigned for moderately severe duodenal ulcer with less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. A 60 percent rating was assigned for severe duodenal ulcer with pain only partially relieved by standard ulcer therapy, periodic vomiting, recurrent hematemesis or melena, with manifestations of anemia and weight loss productive of definite impairment of health. 38 C.F.R. § 4.114. The Board notes that the ameliorative effects of medication are not explicitly contemplated by the rating criteria for Diagnostic Code 7305. Therefore, an evaluation of the severity of the Veteran's duodenal ulcer may not consider the ameliorative effects of medication. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Turning to the evidence, the Veteran underwent a VA examination in February 2012. Upon examination, the Veteran was noted to take continuous medication (omeprazole) for his duodenal ulcer. His current signs and symptoms were periodic abdominal pain which was relieved by standard ulcer therapy. There were no other symptoms, such as nausea, vomiting, or weight loss, nor did he have incapacitating episodes. The disability did not affect the Veteran's ability to work. The Veteran underwent another VA examination in January 2014. His treatment plan included taking continuous medication (omeprazole) for the duodenal ulcer. His current signs and symptoms were noted to be periodic abdominal pain and transient melena, with recurring episodes of symptoms that are not severe, occurring four or more times per year, and lasting less than one day in duration. The Veteran did not have incapacitating episodes. The disability did not affect his ability to work. VA treatment records show that in January 2018, the Veteran started to regularly report abdominal pain lasting two to three days in duration. In February 2018, he was treated for unspecified abdominal pain and acute gastroenteritis. In May 2018, the Veteran reported a one month history of nausea and vomiting first thing in the morning, as well as abdominal pain, indigestion, and an acid taste in his mouth. He underwent an upper endoscopy which revealed a small hiatal hernia, mild gastritis, but a normal duodenum. In July 2018, the Veteran reported chronic abdominal pain and diarrhea for the past two to three days. In August 2018, he reported that he continues to have abdominal pain and takes omeprazole every day. The Veteran was afforded a VA examination in September 2018. Upon examination, he reported that he has had ongoing abdominal pain for the past two years with occasional bloody stool and diarrhea. He reported sharp pain at rest rated "8 out of 10" and sometimes "10 out of 10" with activity. The examiner documented continuous abdominal pain, but no other symptoms. The Veteran did not have incapacitating episodes. In light of the foregoing evidence, the Board finds that entitlement to a 20 percent rating, but no higher, is warranted throughout the appeal period. In this regard, the Board finds that, when discounting any ameliorative effects of medication, the Veteran's duodenal ulcer manifested by continuous moderate symptomatology, to include recurring episodes of abdominal pain, melena, diarrhea, nausea, and vomiting. The Veteran's symptoms were more severe and occurred more frequently than those contemplated by his currently-assigned 10 percent rating, but did not rise to the level of impairment in health required by a 40 percent rating. Thus, resolving any reasonable doubt in the Veteran's favor, the Board finds that the Veteran's ulcer more nearly approximated disability manifested by continuous moderate manifestations. Therefore, a 20 percent rating is warranted from March 4, 2011 to September 27, 2018. The Board further finds that a rating in excess of 20 percent is not warranted. Throughout the appeal period, the Veteran's ulcer symptoms have not more nearly approximated moderately severe symptomatology. First, neither the lay nor the medical evidence reflects symptoms corresponding to a higher, 40 percent rating, which are less than severe but with impairment of health manifested by anemia and weight loss; or recurrent incapacitating episodes averaging 10 days or more in duration at least four or more times a year. See Diagnostic Code 7305 (2018). Indeed, neither the lay nor the medical evidence shows complaints or findings for definite impairment of health, such as anemia and weight loss, or incapacitating episodes of ulcer symptoms. In sum, the record does not document symptomatology that more nearly reflects the criteria for a 40 percent or higher rating at any time during the appeal period; thus, a higher rating is not warranted. Accordingly, after resolving all reasonable doubt in the Veteran's favor, entitlement a 20 percent rating, but no higher, for duodenal ulcer from March 4, 2011 to September 27, 2018 is granted. 38 U.S.C. § 5107(b); Lynch, 21 F.4th at 780-81. 2. Entitlement to a rating in excess of 20 percent for right knee subluxation/lateral instability from January 5, 2015 to October 13, 2021 The Veteran's right knee disability manifesting by subluxation and lateral instability is rated 20 percent disabling from January 5, 2015 to October 13, 2021, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5257, which contemplates other impairment of the knee. He generally contends that his symptoms were more severe than reflected by the assigned rating during this period. During the course of this appeal, the schedular rating for evaluating other impairment of the knee, specifically, the criteria pertaining to recurrent subluxation or lateral instability, were amended under 38 C.F.R. § 4.71a, effective February 7, 2021. See 85 Fed. Reg. 76, 453 (November 30, 2020). When a law or regulation changes during the pendency of an appeal, generally the version most favorable to the veteran applies. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (May 23, 2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The amended rating criteria, if favorable to the claim, can be applied only from the effective date of the regulatory change; however, the old regulation may be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (May 23, 2000); Kuzma, 341 F.3d 1327. Prior to February 7, 2021, under Diagnostic Code 5257, other knee impairment with slight recurrent subluxation or lateral instability warrants a 10 percent rating. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a. When, as here, descriptive terms such as "slight," "moderate," and "severe" are not defined in the Rating Schedule, absent an express definition, it is presumed that VA regulations employ words using their ordinary dictionary meanings at the time the regulations were promulgated. See Nielson v. Shinseki, 607 F.3d 802, 805-06 (Fed. Cir. 2010). "Slight," as an adjective, is defined as "small of its kind or in amount." "Moderate," as an adjective, is defined as "not violent, severe, or intense"; "limited in scope or effect." "Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." See Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary. Under the revised version of Diagnostic Code 5257, in effect since February 7, 2021, other knee impairment is evaluated based on recurrent subluxation or lateral instability due to sprain or ligament tear; or patella instability due a diagnosed condition involving the patellofemoral complex. As the Veteran does not have a diagnosed condition involving the patellofemoral complex, that portion of the rating criterion will not be further considered herein. For recurrent subluxation or instability, a 10 percent rating is warranted for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A 20 percent rating is warranted for one of the following: (a) sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or (b) unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. A maximum 30 percent rating is warranted for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. 38 C.F.R. § 4.71a. Objective medical evidence is not required to establish lateral knee instability under Diagnostic Code 5257, so objective medical evidence cannot be categorically found more probative than lay evidence with respect to this diagnostic code. See English v. Wilkie, 30 Vet. App. 347, 352-53 (2018). Turning to the relevant evidence, the Veteran underwent a VA examination in May 2015. Upon examination, the Veteran reported that his right knee "locks up and gives out." The examiner determined that there was a history of slight recurrent subluxation and slight lateral instability. Joint stability testing was performed; the results were normal and did not reveal instability in the right knee. The examiner noted that "knee instability is currently asymptomatic." Muscle strength testing was normal. The Veteran was found to use a brace constantly to keep the knee stable and reduce pain. The Veteran underwent another VA examination in March 2016. The Veteran reported that the instability in his right knee has returned and is affecting his gait. Muscle strength testing was normal. The examiner determined that there was a history of moderate recurrent subluxation and moderate lateral instability in the right knee. Joint stability testing revealed lateral instability to grade 2+ (5-10 millimeters) in the right knee. Anterior, posterior, and medial instability testing was normal. The Veteran was noted to occasionally use a brace for ambulation. In a November 2018 statement, the Veteran reported that his right knee has been giving way and popping. At a December 2018 VA examination, the Veteran reported current symptoms of "swelling, popping, pain, and giving way" of the right knee. Muscle strength testing revealed a reduction in muscle strength in both flexion and extension, rated "4/5" signifying active movement against some resistance. The examiner determined that there was a history of slight recurrent subluxation and slight lateral instability. Joint stability testing was performed; the results were normal and did not reveal instability in the right knee. The Veteran did not report using any assistive devices for ambulation. At an August 2020 VA examination, the examiner determined that the Veteran did not have a history of recurrent subluxation and lateral instability. Muscle strength testing and joint stability testing of the right knee was normal. The examiner remarked that there is no evidence of instability and the condition is quiescent. The Veteran was afforded another VA examination in January 2021. The examiner determined that the Veteran did not have a history of recurrent subluxation and lateral instability. Muscle strength testing and joint stability testing of the right knee was normal. The Veteran was noted to occasionally use a cane for ambulation. At his May 2022 hearing, the Veteran testified that his right knee symptoms were much improved ("80 percent better") since undergoing total knee replacement surgery in 2020. However, before the surgery, the Veteran said that his right knee was unstable and felt as though his bones were rubbing together and resulted in swelling. VA treatment records during the appeal period show that the Veteran regularly reported experiencing right knee pain to his VA physicians. However, there are no documented reports of signs or symptoms indicative of instability or subluxation, such as a feeling of his knee giving out or experiencing falls or near-falls due to his knee giving out. After careful consideration of the foregoing, the Board finds that the evidence of record weighs against assigning a rating in excess of 20 percent for right knee subluxation and lateral instability from January 5, 2015 to October 13, 2021. A previously noted, a higher, 30 percent rating may be assigned for severe recurrent subluxation or lateral instability or, from February 7, 2021, for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device and bracing for ambulation. 38 C.F.R. § 4.71a, Diagnostic Code 5257. Upon review of the relevant medical evidence, the Board concludes that during the relevant period, the Veteran's right knee instability did not manifest by, or more nearly approximate, severe symptoms. In this regard, the Veteran underwent five VA examinations with joint stability testing during the appeal period; four of these examinations revealed normal joint stability, see May 2015, December 2018, August 2020, and January 2021 VA examination reports. While the March 2016 VA examination revealed abnormal lateral instability in the right knee, the examiner characterized the degree of instability as "moderate." No VA examiner or VA physician who evaluated the Veteran's knee during the appeal period ever described the Veteran's level of severity of his instability to be "severe," or similar, such as "significant," or "of a great degree." Significantly, the Veteran has only ever described feeling as if his knee "locks up" or "gives out." He has never reported to his examiners or treating physicians that he has ever stumbled or fallen due to his right knee instability. Given the foregoing, the evidence weighs against finding the Veteran's disability to be severe in nature. The Board acknowledges the vagueness of the terms used in Diagnostic Code 5257 (prior to February 7, 2021), and has further looked to the criteria from February 7, 2021 as guidance in determining whether the Veteran's disability rises to the level of "severe" in severity. The new criteria associates a 30 percent rating (or severe level of disability) with symptoms of persistent instability that requires the use of assistive devices for ambulation that has been prescribed by a medical provider. There is no evidence that the Veteran has been prescribed an assistive device or bracing for ambulation from a medical provider, nor do his symptoms present as "persistent," as stability tests in May 2015, December 2018, August 2020, and January 2021 were negative. Therefore, for these reasons, the Board concludes that a 30 percent rating for severe recurrent subluxation or lateral instability is not warranted. Accordingly, the Board finds the evidence persuasively weighs against finding in favor of assigning a rating in excess of 20 percent for a right knee disability based on subluxation and lateral instability. As such, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C. § 5107(b); Lynch, 21 F.4th at 780-81. 3. Entitlement to a TDIU prior to March 23, 2020 The Veteran's claim for a TDIU has been raised as part and parcel of the increased rating claims currently on appeal before the Board pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). In an October 2024 decision, during the pendency of the instant appeal, the Board awarded the Veteran entitlement to a TDIU. In an October 2024 rating decision, the RO effectuated the award of total disability and assigned an effective date of March 23, 2020. The Veteran continues to seek entitlement to a TDIU prior to this date. It is established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a), 4.15. If the total rating is based on a disability or combination of disabilities for which the rating schedule provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 3.341 (a). A total disability rating can be assigned based on individual unemployability if the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). The evidence of record shows that the Veteran was last gainfully employed on June 26, 2018 in bridge maintenance. The Veteran has also asserted that this is the date he became too disabled to work. See November 2020 VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. Previous employment included a truck driver and utility technician. The Veteran has a high school education with no further education or training. From the date that the Veteran was last gainfully employed, June 26, 2018, to the date he is already in receipt of a TDIU, March 23, 2020, the Veteran is in receipt of service connection for: headaches, rated as 50 percent disabling; hypertension, rated as 40 percent disabling; residuals, right knee total replacement, rated as 10 percent disabling; right knee subluxation/lateral instability, rated as 20 percent disabling; duodenal ulcer, rated as 20 percent disabling; residual surgical scar, right knee, rated as 10 percent disabling; degenerative arthritis with limitation of extension of the right knee, rated as noncompensable; right lower extremity diabetic neuropathy, rated as noncompensable; and left lower extremity diabetic neuropathy, rated as noncompensable. From June 26, 2018 to March 22, 2020, the Veteran's combined disability rating is 90 percent. As such, he meets the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a). Thus, the question remaining before the Board is whether the Veteran was precluded from obtaining or maintaining a substantially gainful occupation as a result of his service-connected disabilities during this period. At an August 2018 VA examination, the Veteran reported that he was not currently working but that when he was working, he called out every other week for headaches. He rated the severity of his headaches as 9/10; they occur two times per day and last approximately three hours in duration. The Veteran stated that his headaches are so bad that he cannot think or function when they occur. The examiner determined that the Veteran's headache disability results in very prostrating and prolonged attacks of migraine and non-migraine pain productive of severe economic inadaptability. At a September 2018 VA examination, the Veteran reported that his duodenal ulcer impacted his ability to work in bridge maintenance because heavy lifting and climbing ladders aggravated his abdominal pain and he could not work when the pain was severe. At a December 2018 VA examination, the Veteran reported that he can no longer work as a bridge maintenance crew member because he cannot go up and down a ladder all day anymore due to his right knee disability. At a May 2019 VA examination, the examiner noted that the Veteran's headaches impact his ability to work due to causing an inability to concentrate, see properly, drive, or perform heavy lifting or climbing a ladder. In light of the foregoing medical and lay evidence, the Board finds that the evidence persuasively weighs in favor of finding that the Veteran was unable to secure and follow a substantially gainful occupation consistent with his education, training, and work history by reason of his service-connected disabilities from June 26, 2018, when he last worked full time. 38 U.S.C. § 5107(b); Lynch, 21 F.4th at 780-81. Accordingly, entitlement to a TDIU from June 26, 2018 to March 22, 2020 is granted. REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for right knee ACL reconstruction and degenerative arthritis from January 5, 2015 to October 13, 2021 is remanded. In the JMPR, the parties noted that although VA provided the Veteran with right knee examinations in May 2015, March 2016, and December 2018, these examinations did not comply with the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016), testing the joint for pain on motion, and Sharp v. Shulkin, 29 Vet. App. 26 (2017), assessing functional loss during periods of flare-up. In light of the above, the Board finds that the record does not contain adequate information to properly rate the severity of the Veteran's right knee disability for the period from January 2015 to October 2021. Therefore, the claim must be remanded to obtain a retrospective opinion from a VA examiner that adequately assesses the severity of the Veteran's disability during the appeal period, to specifically include at the times of the May 2015, March 2016, and December 2018 VA examinations. See Chotta v. Peake, 22 Vet. App. 80 (2008) (when there is an absence of medical evidence during a certain period of time, a retrospective medical opinion may be warranted). Accordingly, the matter is REMANDED for the following action: Obtain a retrospective medical opinion from a VA examiner of appropriate expertise assessing the severity of the Veteran's right knee disability at the time of the May 2015, March 2016, and December 2018 VA examinations. The examiner must review the Veteran's entire claims file, with specific consideration given to the specified examination reports. The examiner is asked to provide a fully-articulated retrospective medical opinion (as best as can be ascertained from the Veteran's self-reports in the specified examination reports, as well as from clinical records and other lay evidence of record) addressing the following: (a) Assess whether the Veteran experienced pain in the right knee joint on range of motion testing at the time of the May 2015, March 2016, and December 2018 VA examinations, with specific consideration of pain in active motion, passive motion, weight-bearing, and nonweight-bearing and, if so, estimating the point at which the pain began. (b) Estimate any additional degrees of limitation of range of motion caused by functional loss during a period of flare-up or after repeated use of the right knee at the time of the May 2015, March 2016, and December 2018 VA examinations. In providing the requested opinion, the examiner must also opine whether pain, weakness, fatiguability, or incoordination significantly limited functional ability during periods of flare-up or after repeated use over time, and identify any other additional factors contributing to the Veteran's disability. If the examiner cannot provide the requested information without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). The examiner must provide a complete medical rationale for all opinions expressed. J. NICHOLS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Melissa Barbee, 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.