IRRITABLE COLON SYNDROME (SPASTIC COLITIS MUCOUS COLITIS)

RAY BARTO SLABBEKORN, JR. · 2024 · Case ID: A24086560

DENIED

Summary

The veteran, who served in the U.S. Army from September 1979 to October 1979, appeals the denial of service connection for several conditions claimed as secondary to his service-connected PTSD, with obesity as an intermediate step. These conditions included irritable bowel syndrome (IBS), sleep apnea, migraines, and diverticulitis. The Board denied these claims, finding no current diagnosis for IBS or sleep apnea, and no medical nexus between the Veteran's PTSD and his diagnosed migraines or diverticulitis. The Board noted that while the Veteran reported symptoms, objective medical criteria were not met for IBS, and VA sleep studies did not confirm sleep apnea. The Board also found the evidence persuasively weighed against a service connection for migraines and diverticulitis, and that the benefit-of-the-doubt rule did not apply as the evidence was not in equipoise. The Veteran also appealed the denial of an increased rating for bilateral hearing loss and earlier effective dates for hearing loss, tinnitus, and PTSD. The Board denied the increased rating for hearing loss, finding the audiometric results did not meet the criteria for an exceptional pattern warranting a higher rating. The Board also denied earlier effective dates for hearing loss and tinnitus, as the claims were properly established on May 9, 2016. For PTSD, the Board denied an earlier effective date, finding the Veteran's submitted mental health notes were not new and material evidence, as they contained factual inaccuracies and conclusions beyond his competence, and were cumulative of prior testimony.

Rationale

No current diagnosis of IBS; No objective criteria met for IBS; No medical nexus between PTSD and IBS

Service Branch

ARMY

Special Benefit

NO SPECIAL BENEFIT

Docket No.

221024-289291

Full Decision Text

Citation Nr: A24086560
Decision Date: 12/30/24 Archive Date: 12/30/24

DOCKET NO. 221024-289291
DATE: December 30, 2024

ORDER

Entitlement to service connection for irritable bowel syndrome, secondary to service-connected posttraumatic stress disorder, with obesity as an intermediate step, is denied.

Entitlement to service connection for sleep apnea, secondary to service-connected posttraumatic stress disorder, with obesity as an intermediate step, is denied.

Entitlement to service connection for migraines, secondary to service-connected posttraumatic stress disorder, with obesity as an intermediate step, is denied.

Entitlement to service connection for diverticulitis, secondary to service-connected posttraumatic stress disorder, with obesity as an intermediate step, is denied.

Entitlement to an initial rating in excess of 30 percent for bilateral hearing loss is denied.

Entitlement to an effective date prior to May 9, 2016, for service connection of bilateral hearing loss is denied.

Entitlement to an initial rating in excess of 10 percent for tinnitus is denied.

Entitlement to an effective date prior to May 9, 2016, for service connection of tinnitus is denied.

Entitlement to an effective date prior to May 9, 2016, for service connection of posttraumatic stress disorder is denied.

FINDINGS OF FACT

1. The evidence of record persuasively establishes that the Veteran does not have a current diagnosis of irritable bowel syndrome.

2. The evidence of record persuasively establishes that the Veteran does not have a current diagnosis of sleep apnea.

3. The Veteran's migraine disability is not shown to have a medical nexus to military service, or to have been caused or aggravated by service-connected posttraumatic stress disorder, to include with obesity as an intermediate step.

4. The Veteran's diverticulitis disability is not shown to have a medical nexus to military service, or to have been caused or aggravated by service-connected posttraumatic stress disorder, to include with obesity as an intermediate step.

5. During the period on appeal, the Veteran's exceptional pattern of hearing impairment manifested by hearing acuity no worse than Level VII in the right ear and no worse than Level V in the left ear.

6. The Veteran is currently in receipt of a 10 percent disability rating for tinnitus, which is the maximum rating.

7. The Veteran's VA Form 21-0966, Intent to File a claim for compensation was received on May 9, 2016, and his formal claim for service connection of hearing loss was received on June 11, 2016, which was within one year of the Intent to File.

8. The Veteran did not file a notice of disagreement (NOD) with the August 2011 Rating Decision denying service connection for posttraumatic stress disorder, nor was new and material evidence received within one year of the rating decision. As a result, the decision became final.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection of irritable bowel syndrome, secondary to service-connected posttraumatic stress disorder, with obesity as an intermediate step, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.310.

2. The criteria for entitlement to service connection of sleep apnea, secondary to service-connected posttraumatic stress disorder, with obesity as an intermediate step, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.310.

3. The criteria for entitlement to service connection of migraines, secondary to service-connected posttraumatic stress disorder, with obesity as an intermediate step, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.310.

4. The criteria for entitlement to service connection of diverticulitis, secondary to service-connected posttraumatic stress disorder, with obesity as an intermediate step, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.310.

5. The criteria for an initial disability rating in excess of 30 percent for bilateral hearing loss with an exceptional pattern of impairment have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.21, 4.87, Diagnostic Code 6100.

6. The criteria for entitlement to an effective date prior to May 9, 2016
-connected posttraumatic stress disorder, with obesity as an intermediate step, have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.310.

6. The criteria for entitlement to an effective date prior to May 9, 2016, for service connection of bilateral hearing loss have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

7. The criteria for an initial disability rating in excess of 10 percent for tinnitus have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.21, 4.87, Diagnostic Code 6260.

8. The criteria for entitlement to an effective date prior to May 9, 2016, for service connection of tinnitus have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

9. The criteria for entitlement to an effective date prior to May 9, 2016, for service connection of posttraumatic stress disorder have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from September 1979 to October 1979.

Motion for Advancement on the Docket

In September 2024, the Veteran's representative filed motions for advancement on the docket claiming serious illness of the Veteran. In correspondence dated September 20, 2024, and October 25, 2024, the Board denied the motions upon finding that the Veteran does not meet the requisite 75-year age requirement, or sufficient medical evidence to demonstrate an illness so serious or grave in nature that advancement is warranted. Additionally, the Board found no evidence to demonstrate severe financial hardship to warrant advancement.

In correspondence dated November 20, 2024, the Veteran's representative again filed a motion for advancement on the docket. The Board has considered the motion and supporting documentation and again finds the specific grounds enumerated under 38 C.F.R. § 20.902 have not been shown. The Board finds no reason to disturb the prior denials and the motion for advancement on the docket remains denied.

Relevant Procedural History

The procedural histories of the above-captioned claims developed distinctly and are addressed below grouped by chronological similarity.

Irritable Bowel Syndrome (IBS)

Sleep Apnea

Migraines

Diverticulitis

On February 22, 2021, and again on July 12, 2021, the Veteran filed VA 21-0966 Intent to File a Claim forms. Within one year, on November 16, 2021, he submitted a complete claim requesting service connection of irritable bowel syndrome (IBS), sleep apnea, migraines, and diverticulitis, each as secondary to posttraumatic stress disorder (PTSD) and alternatively each as secondary to PTSD with obesity as an intermediate step. See November 2021 VA Form 21-526EZ.

In a June 2022 Rating Decision of a Department of Veterans Affairs (VA) Regional Office (RO), each claim was denied upon finding no medical nexus to the Veteran's service-connected PTSD.

Earlier Effective Date for Bilateral Hearing Loss

Earlier Effective Date for Tinnitus

On May 9, 2016, the Veteran submitted an Intent to File a claim followed by a June 11, 2016, VA Form 21-526EZ initial claim for service connection of hearing loss. In a January 2017 Rating Decision, the RO denied service connection for bilateral hearing loss and the Veteran filed a timely Notice of Disagreement (NOD) and perfected an appeal to the Board.

Earlier Effective Date for Tinnitus

In a July 2020 Board decision, the Veteran's claim for service connection of bilateral hearing loss was denied. In a March 2021 Joint Motion for Partial Remand (JMPR) the Court remanded the Veteran's claim for hearing loss for further development. In June 2021, the Board further remanded the claim to the RO, and in November 2021, the Veteran was awarded service connection of bilateral hearing loss and tinnitus, effective May 9, 2016, the date of receipt of his intent to file a claim.

In May 2022, the Veteran filed a VA Form 20-0996 Decision Review Request: Higher Level Review (HLR) seeking higher evaluations and earlier effective dates for both bilateral hearing loss and tinnitus. In a July 2022 HLR Rating Decision, the claims were denied. It is from this decision that the present appeal stems.

Earlier Effective Date for PTSD

On May 22, 2003, the Veteran filed an initial claim seeking for service connection of panic attacks, anxiety, and depression (hereinafter psychiatric disorder). See May 2003 VA Form 21-4138. The claim was denied in a September 2003 Rating Decision and the Veteran filed a timely NOD and perfected an appeal to the Board. In a March 2005 decision, the Board remanded the Veteran's case for a hearing which was conducted in March 2006. The case was returned to the Board in September 2006 wherein service connection for a psychiatric disorder was denied. The Veteran did not appeal that decision to the United States Court of Appeals for Veterans Claims (Court), file a motion to vacate, file a motion for reconsideration, or file a motion to revise the decision based on clear and unmistakable error. Therefore, the September 2006 Board decision is final. See 38 U.S.C. § 7104; 38 C.F.R. §§ 20.203, 20.1100.

On May 13, 2011, the Veteran again requested service connection of a psychiatric disorder. In an August 2011 Rating Decision, the RO denied his claim for service connection of posttraumatic stress disorder (PTSD), previously claimed as panic disorder with agoraphobia; anxiety disorder/depression/ panic attacks upon finding the evidence submitted was not new and material. The Veteran was notified of the agency decision but did not file an appeal with the Board.

On May 9, 2016, the Veteran submitted an Intent to File a claim followed by a June 11, 2016, VA Form 21-526EZ claim requesting service connection of, inter alia, panic attacks, depression, agoraphobia, and loss of thoughts. On November 15, 2016, he filed a VA Form 21-526b Supplemental Claim seeking reopening of his prior claim for service connection of PTSD.

In a January 2017 Rating Decision, the RO denied service connection for PTSD and the Veteran filed a timely Notice of Disagreement (NOD) and perfected an appeal to the Board. In a July 2020 Board decision, the Veteran's claim for service connection of an acquired psychiatric disorder was denied upon finding new and material evidence had not been submitted to warrant reconsideration of the claim.

In a March 2021 JMPR, the Court remanded the Veteran's claim for the Board to address additional records added to the file. In June 2021, the Board found new and material evidence had been submitted to warrant reconsideration of the claim and remanded the issue to the RO for further development. In a September 2021, Rating Decision, the Veteran was awarded service connection of PTSD with bipolar disorder and assigned a 100 percent rating, effective November 15, 2016, the date of the VA Form 21-526b Supplemental Claim.

In May 2022, the Veteran filed a VA Form 20-0996 Decision Review Request: Higher Level Review (HLR) seeking an earlier effective date for the award of service connection of PTSD. On July 12, 2022, the Veteran simultaneously filed a Supplemental Claim seeking an earlier effective date for PTSD.

In a July 2022 HLR Rating Decision, the Veteran was granted an earlier effective date of May 9,
further development. In a September 2021, Rating Decision, the Veteran was awarded service connection of PTSD with bipolar disorder and assigned a 100 percent rating, effective November 15, 2016, the date of the VA Form 21-526b Supplemental Claim.

In a July 2022 HLR Rating Decision, the Veteran was granted an earlier effective date of May 9, 2016, the date of receipt of his intent to file a claim. In an October 2022 Rating Decision, the RO denied the Veteran's request for an effective date earlier than May 9, 2016. It is from these decisions that the present appeal stems.

In the October 2022 VA Form 10182, Decision Review Request: Board Appeal, (Notice of Disagreement), the Veteran elected the Direct Review docket. As an appeal in which the appellant requested, on the Notice of Disagreement, direct review by the Board without submission of additional evidence and without a Board hearing, the Board's decision is based on a review of the evidence of record at the time of the September 2021, November 2021, June 2022, and October 2022 Rating Decisions. 38 C.F.R. § 20.301. If evidence relevant to the claims was submitted after the RO issued the September 2021, November 2021, June 2022, or October 2022 agency decisions respectively, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801.

If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

Service Connection

Service connection may be granted 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(a). To establish service connection, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service the so-called "nexus" requirement. Holton v Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially 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).

Service connection may also be granted secondarily, for a disability that is proximately due to, or aggravated by, service-connected disease or injury. 38 C.F.R. § 3.310. For secondary service connection to be granted, generally there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998).

Pertinent to this appeal, although obesity itself is not considered a disability for VA purposes, when obesity has been caused by a service-connected condition, and subsequently causes another disability, obesity may be considered an "intermediate step" for establishing service connection on a secondary basis. See VAOPGCPREC 1-2017 (Jan. 6, 2017). This inquiry extends to both causation and aggravation. See Walsh v. Wilkie, 300, 306 (Vet. App. Feb. 24, 2020).

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110;
(1998).

The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1110; see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of the statute as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary). In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

Generally, lay evidence is competent as to identification of a disease with unique and readily identifiable features which are capable of lay observation. See Barr v. Shinseki, 21 Vet. App. 303, 308 (2007). A lay person may speak to causation in some limited circumstances in which a nexus is obvious merely through observation. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir 2007). Lay persons may also provide competent evidence regarding a contemporaneous medical diagnosis or a description of symptoms in service which supports a later diagnosis by a medical professional. However, a lay person is not competent to provide evidence as to more complex medical questions, i.e., those which are not capable of lay observation. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007), Jandreau, at 1377, n.4); 38 C.F.R. § 3.159(a)(2).

The determination as to whether the requirements for service connection are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (only when the evidence persuasively favors one side, or another is the benefit of the doubt doctrine not for application).

The Board has reviewed the record and finds that it does not reasonably raise entitlement to direct service connection of irritable bowel syndrome, sleep apnea, migraines, or diverticulitis as the Veteran's service treatment records are silent for complaints of, treatment for, or symptoms of such conditions during active service, and the Veteran has not asserted direct service connection in the present claim. Thus, the Board's adjudication will only consider entitlement to secondary service connection as detailed above. Moreover, the Board will only address entitlement to the aforementioned claims as secondary to his service-connected PTSD, and not as secondary to any of the Veteran's other service-connected disabilities.

Due to the similar dispositions for certain of the above claims on appeal, the Board will address them in a common discussion below.

IBS

Sleep Apnea

The Veteran seeks service connection for irritable bowel syndrome and sleep apnea, as secondary to PTSD to include with obesity as an intermediate step. See November 2021 VA Form 21-526EZ.

Upon review of the record, the Board concludes that the Veteran does not have a current diagnosis of IBS or sleep apnea and has not had such at any time during the pendency of the claim or recent to the filing of the claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).

The Veteran was afforded a December 2021 VA Int
obesity as an intermediate step. See November 2021 VA Form 21-526EZ.

The Veteran was afforded a December 2021 VA Intestinal Conditions Examination, which confirmed a diagnosis of diverticulitis and diverticulosis (addressed below) but found no medical evidence of IBS. In a January 2022 VA Addendum Medical Opinion, the VA examiner noted that the Veteran reported experiencing constipation twice a month and occasional air in his abdomen and pain during bowel movement. However, the Veteran also reported having daily bowel movements without diarrhea. The VA examiner found no objective criteria consistent with a diagnosis of irritable bowel syndrome.

In a January 2022 VA Medical Opinion, an examiner concluded that based on a complete review of the Veteran's claims file no objective evidence of sleep apnea was present. VA Treatment records contain an August 2014 VA Sleep Study confirming no diagnosis of sleep apnea. The Board is cognizant of the Veteran's claim that he was diagnosed with sleep apnea based on a sleep study at an unidentified sleep center in New Jersey, but no medical records reflecting a sleep study or diagnosis of sleep apnea could be located at either New Jersey or Philadelphia VAMC locations. The Board further notes that May 2020 VA Treatment records reference a provisional diagnosis of sleep apnea with medical orders for the Veteran to report for a sleep study, however there is no indication that a sleep study was effectuated. If such a study occurred, the results are not before the Board.

The Board recognizes that the Veteran has not been afforded an in-person VA examination for the sleep apnea. A VA examination, however, is not necessary. Assuming the Veteran could establish a diagnosis of sleep apnea, the record contains no evidence to establish that the Veteran's service-connected PTSD caused sleep apnea or caused the Veteran to become obese resulting in IBS or sleep apnea. Moreover, there is no evidence that his claimed sleep apnea resulted from active service or any incident of service, including as due to his service-connected PTSD with obesity as an intermediate step. The available service treatment records show that at his enlistment physical examination in August 1979, clinical evaluation was within normal limits, and he weighed 172 pounds. See STRs. He denied any relevant pre-service medical history. Medical evidence reflects that the Veteran suffers from obesity, but in the absence of any indicia of a nexus between his PTSD and obesity, the claims must fail.

As the record does not reflect a current diagnosis of sleep apnea or of specific contentions regarding how his service-connected PTSD is medically resultant from sleep apnea or to obesity and subsequently sleep apnea, the Board finds that the standards of Mclendon v. Nicholson, 20 Vet. App. 79 (2006) are not met in this case.

The Board concludes that the persuasive weight of the evidence is against the claims. In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule, however, as the evidence is not in approximate balance or nearly equal, the benefit-of-the-doubt rule does not apply. Lynch, 21 F.4th at 776; see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively weighs against the Veteran's claims for service connection of IBS and sleep apnea. Thus, the benefit-of-the-doubt rule does not change the outcome on these issues.

Accordingly, service connection for IBS and for sleep apnea is denied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

Migraines

Diverticulitis

The Veteran contends that his migraine and diverticulitis disabilities are secondary to service-connected PTSD, to include with obesity as an intermediate step. See November 2021 VA Form 21-526EZ. The theory of secondary service connection is the sole contention the Veteran has advanced during the period on appeal. As such, the Board will only address the theory of secondary service connection under 38 C.F.R. § 3.
issues.

Accordingly, service connection for IBS and for sleep apnea is denied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

Migraines

Diverticulitis

The record confirms that the Veteran has current diagnoses of diverticulitis (and diverticulosis) and migraines. See December 2021 VA Compensation and Pension (C&P) Examinations. The June 2022 Rating Decision on appeal favorably found that the Veteran has been diagnosed both diverticulitis, diverticulosis, and migraines, and the Board is bound by such favorable findings. 38 C.F.R. § 3.104(c). Additionally, the Veteran was awarded service connection for PTSD, effective May 9, 2016. Therefore, the Board finds that the first and second elements of secondary service connection are met and the issue for the Board is whether the Veteran's PTSD led to obesity which then caused or aggravated his diagnosed diverticulitis and migraines.

In December 2021 VA Medical Opinions, the VA examiner concluded that diverticular disease bears no association with PTSD. Similarly, the examiner reported that the Veteran's migraine headache condition is not proximately due to or the result of PTSD. The VA examiner cited medical literature in support of the opinions provided and conducted a thorough review of the Veterans medical records, including neurologic and behavioral health and found no basis for a relationship between the Veteran's diverticulitis, migraines, and PTSD. There are no contrary medical opinions of record, nor is there any indication that the disabilities or persistent or recurrent symptoms of the disabilities may be associated with his service or with another service-connected disability.

As to his claim of obesity as an intermediate step, the Board finds there is no medical evidence to suggest that the Veteran's obesity has a nexus to PTSD, nor has the Veteran provided an explanation in support of the claim. The Board does not doubt the sincerity of the Veteran's belief that his service-connected PTSD caused or contributed to his current diverticulitis and migraine disabilities with obesity as an intermediate step linking these disabilities. Nevertheless, the record is void of evidence showing that his service-connected PTSD caused or aggravated his diverticulitis and migraines, either with or without obesity as an intermediate step. Again, it is undisputed that service connection is in effect for PTSD and the Veteran is diagnosed with diverticulitis and migraines and that he suffers from obesity. Yet, VA clinicians opined in that it is less likely than not that the Veteran's diverticulitis and migraines are the result of his service-connected PTSD. These opinions were fully supported. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (finding that a medical opinion "must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions").

The Veteran and his representative have not identified or submitted any evidence demonstrating his entitlement to service connection for diverticulitis and migraines, as due to his service-connected PTSD with obesity as an intermediate step. As there is no evidence to establish that the Veteran's service-connected PTSD has a medical nexus to his diverticulitis or migraines or caused the Veteran's obesity resulting in a nexus between his PTSD and obesity, the claims must fail.

In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule, however, as the evidence is not in approximate balance or nearly equal, the benefit-of-the-doubt rule does not apply. Lynch, 21 F.4th at 776; see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively weighs against the Veteran's claims for service connection of diverticulitis and migraines. Thus, the benefit-of-the-doubt rule does not change the outcome on these issues.

Accordingly, service connection for diverticulitis and migraines is denied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

Increased Ratings

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which
.4th at 776; see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively weighs against the Veteran's claims for service connection of diverticulitis and migraines. Thus, the benefit-of-the-doubt rule does not change the outcome on these issues.

Accordingly, service connection for diverticulitis and migraines is denied. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303.

Increased Ratings

Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which allows for ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted considering the whole recorded history, and each disability must be considered from the point of view of a veteran working or seeking work. 38 C.F.R. § 4.2.

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Staged ratings are only appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Fenderson v. Brown, 12 Vet. App. 119, 126-127 (1999).

Bilateral Hearing Loss

In a November 2021 Rating Decision, the Veteran was granted service connection for bilateral hearing loss and tinnitus and assigned an initial 30 percent rating for his hearing loss disability, effective May 9, 2016.

Disability ratings for hearing impairment are generally derived by a mechanical application of the rating schedule to the numeric designations assigned after audiometric evaluations are rendered. Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). In Doucette v. Shulkin, 28 Vet. App. 366 (2017), the Court clarified the analysis for extraschedular consideration in hearing loss claims, holding that "the rating criteria for hearing loss contemplate the functional effects of decreased hearing and difficulty understanding speech in an everyday work environment" which "are precisely the effects that VA's audiometric tests are designed to measure'" and "when a claimant's hearing loss results in an inability to hear or understand speech or to hear other sounds in various contexts, those effects are contemplated by the schedular rating criteria." Id. at 369. "[A]bsent symptoms not expressly contemplated by the rating criteria, [such as dizziness, ear pain, vertigo, social isolation, and recurrent loss of balance] the Board (is) not required to consider how service-connected hearing loss affects occupational functioning nor is the impact on occupational functioning itself a part of the disability picture." Andersen v. Shulkin, 2017 U.S. App. Vet. Claims LEXIS 1828 (Vet. App. Dec. 21, 2017); citing Thun v. Peake, 22 Vet. App. 111, 115 (2008). Thus, the record must point to symptoms or impairment outside of those hearing-related ones addressed by audiometric and speech discrimination testing results before consideration beyond the numeric designations is appropriate.

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. To evaluate the degree of disability from bilateral hearing loss, the schedule establishes 11 auditory hearing acuity levels
symptoms or impairment outside of those hearing-related ones addressed by audiometric and speech discrimination testing results before consideration beyond the numeric designations is appropriate.

Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code (DC) 6100. To evaluate the degree of disability from bilateral hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII.

An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86 (a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b).

The record contains a September 2021 VA Audiology Examination, wherein the Veteran's audiometric readings revealed:

? ? HERTZ ? ?

? 1000 2000 3000 4000

RIGHT 70 75 85 85

LEFT 60 60 65 75

The average puretone threshold for the right ear is 78.75 decibels, and 63.75 decibels for the left ear. The Veteran's Speech Discrimination (Maryland CNC) scores were 92 percent for the right ear and 80 percent for the left ear.

An exceptional pattern of hearing impairment under?38?C.F.R. §?4.86?is shown, therefore the Board will consider both Table VI and Table VIa to determine the higher numeral. Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level IV for the left ear to?38?C.F.R. §?4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100.

Applying the results to Table VIa, the findings yield Level VII for the right ear and Level V for the left ear. Entering the numeric designation of Level VII for the right ear and Level V for the left ear to?38?C.F.R. §?4.85, Table VII, equates to a 30 percent disability rating under Diagnostic Code 6100.

The Board acknowledges the Veteran's contention that he is entitled to a rating higher than 30 percent for his bilateral hearing loss. As noted above, the assignment of the disability rating for hearing impairment is derived from a mechanical formula based on levels of pure tone threshold average and speech discrimination and the record does not demonstrate symptoms or impairment outside of those hearing-related ones addressed by audiometric and speech discrimination testing results. See Doucette, 28?Vet. App.?at 369. Accordingly, the Board finds that the VA examination is the most probative evidence regarding the severity of the Veteran's bilaterally hearing loss disability for the period on appeal. The VA examinations were performed by state-licensed audiologists and included the controlled speech discrimination test using the Maryland CNC test.

The Board does not discount the difficulties the Veteran has with his auditory acuity, as he reported during his examination. However, the Board must base its determination on the results of the audiology studies of record. Lendenmann, 3?Vet. App.?at 349. Accordingly, the evidence of record persuasively weighs against the claim for a disability rating in excess of 30 percent for bilateral hearing loss. In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule, however, as the evidence is not in approximate balance or nearly equal, the benefit-of-the-d
VA examinations were performed by state-licensed audiologists and included the controlled speech discrimination test using the Maryland CNC test.

The Board does not discount the difficulties the Veteran has with his auditory acuity, as he reported during his examination. However, the Board must base its determination on the results of the audiology studies of record. Lendenmann, 3?Vet. App.?at 349. Accordingly, the evidence of record persuasively weighs against the claim for a disability rating in excess of 30 percent for bilateral hearing loss. In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule, however, as the evidence is not in approximate balance or nearly equal, the benefit-of-the-doubt rule does not apply. Lynch, 21 F.4th at 776; see also Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001). Thus, the benefit-of-the-doubt rule does not change the outcome on the issue.

Accordingly, the Veteran's claim for a rating in excess of 30 percent for bilateral hearing loss must be denied.

Tinnitus

The Veteran's tinnitus is currently rated under 38 C.F.R. § 4.87, Diagnostic Code 6260, effective from May 9, 2016. Under Diagnostic Code 6260, a single 10 percent rating is warranted for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260. Thus, ten percent is the maximum schedular rating assignable for tinnitus.

The United States Court of Appeals for the Federal Circuit (Federal Circuit) has affirmed the VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10 percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). The Federal Circuit explained that an agency's interpretation of its own regulations was entitled to substantial deference by the courts as long as that interpretation was not plainly erroneous or inconsistent with the regulations. Id. at 1349-50.

The Veteran offered no specific contentions in support of a rating in excess of 10 percent. While he is competent to report symptoms of his disability, Diagnostic Code 6260 precludes an evaluation in excess of a single 10 percent rating for tinnitus. Under these circumstances, the disposition of this claim is based on the law, and not the facts of the case, and the claim for an increased schedular rating must be denied based on a lack of entitlement under the law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).

The Board finds that application of the regular schedular standards is adequate to rate this single service-connected disability and that the disability is not so exceptional or unusual as to render the schedular standards impractical. Thus, extra-schedular consideration is not warranted in this case. 38 C.F.R. 3.321(b)(1).?

In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule, however, as the evidence is not in approximate balance or nearly equal, the benefit-of-the-doubt rule does not apply. Lynch, 21 F.4th at 776; see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for service-connected tinnitus. Thus, the benefit-of-the-doubt rule does not change the outcome on the issue.

Accordingly, the Veteran's claim for a rating in excess of 10 percent for tinnitus must be denied.

Earlier Effective Date

Under 38 U.S.C. § 5110(b)(1) and 38 C.F.R. § 3.400(b)(2)(i), the effective date for a grant of direct service connection is the day following separation from active service if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. The effective date of awards of claims granted on a secondary basis can be no earlier than the date of the claim for compensation on a secondary basis. See 38 C.F.R. § 3.310; Delisio v. Shinseki, 25 Vet. App. 45 (2011).

The phrase "the date entitlement arose," is not defined in statute or regulation. The Court of
. § 3.400(b)(2)(i), the effective date for a grant of direct service connection is the day following separation from active service if a claim is received within one year after separation from service. Otherwise, the effective date is the date of receipt of claim or date entitlement arose, whichever is later. The effective date of awards of claims granted on a secondary basis can be no earlier than the date of the claim for compensation on a secondary basis. See 38 C.F.R. § 3.310; Delisio v. Shinseki, 25 Vet. App. 45 (2011).

The phrase "the date entitlement arose," is not defined in statute or regulation. The Court of Appeals for Veterans Claims (Court) has interpreted it as the date when the claimant met the requirements for the benefit sought, which is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Such "facts found" include the date the disability first manifested and the date entitlement to benefits was authorized by law and regulation.

Prior to March 24, 2015, VA defined the term "claim" as "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); see also 79 Fed. Reg. 57,696 (Sept. 25, 2014) (effective March 24, 2015) (eliminating informal claims). An informal claim was defined as "[a]ny communication or action indicating an intent to apply for one or more benefits." 38 C.F.R. § 3.155(a).

Accordingly, prior to March 24, 2015, the essential elements for a claim, whether formal or informal, were "(1) an intent to apply for benefits, (2) an identification of the benefit sought, and (3) a communication in writing." Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009) (holding that an informal claim for benefits is made where the claimant refers to a disabled body part or system or describes symptoms of the disability, and a claim includes all disabilities that may be reasonably encompassed by the claimant's description of the claim, reported symptoms, and the other information of record).

Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form, among other changes. The amendments apply to claims filed on or after March 24, 2015.

Under the Appeals Modernization Act (AMA), a claim may be continuously pursued by filing an appropriate administrative review option to an AMA decision, generally within one year from when the decision was issued. If a claim is continuously pursued, it will be considered filed as of the date of the first claim in the continuously pursued chain, not the date the most recent request for review was received. See 38 C.F.R. § 3.2500(c)(h).

Where evidence demonstrates that a factually ascertainable increase in a disability occurred within the one-year period prior to the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Thus, an increase in a veteran's service-connected disability must have occurred during the one-year period prior to the date of the veteran's claim to receive the benefit of an earlier effective date. Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (one-year look back period).

Lastly, under 38 C.F.R. § 3.156(b), "[n]ew and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." For purposes of 38 C.F.R. § 3.156(b), "[e]vidence is constructively received by the VA adjudicator post-decision if it (1) was generated by the VA
date. Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (one-year look back period).

Lastly, under 38 C.F.R. § 3.156(b), "[n]ew and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period." For purposes of 38 C.F.R. § 3.156(b), "[e]vidence is constructively received by the VA adjudicator post-decision if it (1) was generated by the VA or was submitted to the VA and (2) can reasonably be expected to be connected to the veteran's claim. There is no requirement that the VA adjudicator have any actual knowledge of the evidence for this principle to apply." See Lang v. Wilkie, 971 F.3d 1348, 1354 (Fed. Cir. 2020).

Bilateral Hearing Loss

Tinnitus

To establish an effective date earlier than May 9, 2016, for the grants of service connection for bilateral hearing loss and tinnitus, the Veteran must show (1) that he had a prior claim for service connection of bilateral hearing loss and/or tinnitus that remained pending, and, if so, (2) that his bilateral hearing loss and tinnitus first manifested prior to May 9, 2016. See 38 C.F.R. § 3.400.

As detailed above, on May 9, 2016, the Veteran submitted an Intent to File a claim followed by a June 11, 2016, VA Form 21-526EZ initial claim for service connection of hearing loss. In a January 2017 Rating Decision, the Veteran was denied service connection for bilateral hearing loss. He filed a timely Notice of Disagreement and ultimately perfected an appeal to the Board. In a July 2020 Board decision, the Veteran's claim for service connection of bilateral hearing loss was again denied. In March 2021, the Court remanded the claim to obtain a medical opinion. In June 2021, the Board further remanded the claim to the RO. In November 2021, the Veteran was awarded service connection of bilateral hearing loss and tinnitus, effective May 9, 2016, the date of receipt of his intent to file as the claim was received within one year of that date.

The Veteran's file contains no earlier claims, to include any possible claims that remained open, relating to hearing loss or indicia that a hearing loss disability manifested prior to May 9, 2016. Rather, it was June 2016 when the Veteran submitted an initial claim seeking service connection for hearing loss. Accordingly, in this instance, May 9, 2016, the date of receipt of the intent to file followed by a complete and timely claim is the correct effective date. Thus, the Board concludes that entitlement to an effective date prior to May 9, 2016, for the awards of service connection of bilateral hearing loss and tinnitus is not warranted.

In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule, however, as the evidence is not in approximate balance or nearly equal, the benefit-of-the-doubt rule does not apply. Lynch, 21 F.4th at 776; see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Rather, the evidence persuasively weighs against the Veteran's claim for earlier effective dates for the grants of service connection of bilateral hearing loss and tinnitus. Thus, the benefit-of-the-doubt rule does not change the outcome on these issues.

PTSD

In the July and October 2022 Rating Decisions on appeal, the Veteran was awarded service connection of PTSD with bipolar disorder, and assigned a 100 percent evaluation, effective May 9, 2016.

The Veteran has not requested consideration of the disability rating assigned for PTSD (he is at the maximum schedular rating), and the Board finds that application of the regular schedular standards is adequate to rate this single service-connected disability and that the disability is not so exceptional or unusual as to render the schedular standards impractical. Thus, the Board finds that extra-schedular consideration is not warranted in this case. 38 C.F.R. 3.321(b)(1).

The Veteran contends that an effective date of May 13, 2011, is warranted. In support thereof, he states that he received medical treatment for PTSD at a VAMC within one year of the August
9, 2016.

The Veteran contends that an effective date of May 13, 2011, is warranted. In support thereof, he states that he received medical treatment for PTSD at a VAMC within one year of the August 18, 2011 Rating Decision denied service connection for PTSD. These records, he contends, connect his mental health condition to military service and constitute new and material evidence rendering the August 2011 decision nonfinal. See October 2022 VA Form 10182. Thus, the question for the Board is whether the Veteran's VA Treatment Records constitute new and material evidence sufficient to preclude the finality of the August 2011 Rating Decision, or whether the Veteran is entitled to an earlier effective date under any other theory of entitlement.

As above, to establish an effective date earlier than May 9, 2016, for the grant of service connection for PTSD, the Veteran must show (1) that he had a prior claim for service connection of PTSD that remained pending, and, if so, (2) that his PTSD first manifested prior to May 9, 2016. See 38 C.F.R. § 3.400.

The Veteran claims that a September 27, 2011 Individual Psychotherapy Note constitutes new and material evidence relevant to this claim for service connection of PTSD. The September 2011 note contains the Veteran's report of having recently experienced bad dreams and increased anxiety while also reflecting upon his military service and the anniversary of the 9/11 attacks. During the session the Veteran reported that he joined the military in 1976 and served until being honorably discharged in 1981.

From there, the Veteran explained that in 1979 while at Ft. Benning, he was subject to racial discrimination and was involved in a physical fight. He then recounted that in 1980, he was placed on leave for 120 days in California for discipline reasons due to the fight. During this time, he claims feeling anxious, claustrophobic, and experiencing a panic attack which he attributed to the fight at Ft. Benning. Next, the Veteran reported that he completed his service in Fort Ord. and he opined that the events at Ft. Benning were the onset of his psychiatric symptoms.

The Board has carefully considered the Veteran's claim that the above mental health records constitute new and material evidence relative to his claim for service connection of PTSD. However, the veracity of the evidence is wholly unsupported by the credible evidence of record. The Veteran served from September 1979 to October 1979 and was discharged from Ft. Benning with a JET separation code with the reason listed as "marginal or nonproductive." He did not serve from 1976 to 1981 and he did not complete his service at Ft. Ord. See DD214. Rather, the Veteran's military personnel records contain reports that he wandered from post, refused orders, and was counseled for demonstrating disrespect to superiors. See Military Personnel Records. Official records further reveal that his discharge was due to poor motivation, lack of positive attitude, and lack of any self-discipline. See Military Personnel Records.

In a March 2006 Board hearing, the Veteran, under oath, detailed his experiences at Ft. Benning, explained his knee injury, his early discharge from service, and how he believed that his experience resulted in his panic attack disorder. See March 2006 Transcript. The Board then found the history of inservice injuries supplied by the Veteran to be inaccurate when compared to his service medical records. See March 2006 Board Decision ("Simply stated, the Board finds that service and post-service medical records outweigh the veteran's current recollections.").

Setting aside the factual inaccuracies of the Veteran's statements, the Board cannot find that his statements constitute new and material evidence. New evidence is defined as existing evidence not previously submitted to agency decisionmakers and 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 Board acknowledges that the U
March 2006 Board Decision ("Simply stated, the Board finds that service and post-service medical records outweigh the veteran's current recollections.").

The Board acknowledges that the U.S. Court of Appeals for Veterans Claims (Court) has 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." The Court emphasized that the regulation is designed to be consistent with 38 C.F.R. § 3.159(c)(4), which "does not require new and material evidence as to each previously unproven element of a claim." Shade v. Shinseki, 24 Vet. App. 110 (2010). However, for the purpose of establishing whether new and material evidence has been submitted, the credibility of evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Meyer v. Brown, 9 Vet. App. 425, 429 (1996) (emphasis added).

While the September 2011 mental health note may have been new, it is not material. Rather, the Board finds the statements contained therein inherently incredible as they are both factually unsupported and consist of medical conclusions that are beyond the competence of the Veteran. Specifically, his belief that the claimed events at Ft. Benning were the beginning of his psychiatric symptoms are beyond his competency as he is not qualified to diagnose the etiology of his psychiatric disability. The Veteran is not shown to have the training, medical expertise, or credentials to competently diagnose an acquired psychiatric disorder. See King v. Shinseki, 700 F.3d 1339 (2012); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). As a result, his statements and opinions proffered during a mental health appointment do not constitute material evidence that his PTSD was the result of his active duty. Additionally, the statements are cumulative of the evidence provided at the March 2006 Board hearing with respect to his PTSD claim.

As the September 2011 VA Treatment notes are not new and material evidence and as the Veteran did not file a Notice of Disagreement with the August 2011 Rating Decision, the agency decision became final. Therefore, the Board concludes that entitlement to an effective date prior to May 9, 2016, for the award of service connection of PTSD is not warranted.

In reaching this conclusion, the Board has considered the benefit-of-the-doubt rule, however, as the evidence is not in approximate balance or nearly equal, the benefit-of-the-doubt rule does not apply. Lynch, 21 F.4th at 776; see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). Rather, the evidence persuasively weighs against the Veteran's claim for an earlier effective date for the grant of service connection of PTSD. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue and the claim is denied.

RAY BARTO SLABBEKORN, JR.

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Regnart, Glenda M.

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.

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