Case A22022632

J. GALLAGHER · 2022 · Case ID: A22022632

DENIED

Summary

The veteran, who served from September 1966 to September 1968, appeals the denial of an earlier effective date for the evaluation of loss of use of both hands due to service-connected peripheral neuropathy and for special monthly compensation (SMC) based on loss of use of both hands. The veteran has a history of an in-service injury in 1968 to his wrists. Multiple VA examinations and private treatment records documented pain, numbness, tingling, weakness, and limited range of motion in his bilateral wrists and hands over the years. The Board considered evidence up to the October 2020 AOJ decision and evidence submitted within 90 days of the June 2022 notice of disagreement. The Board found that while the veteran experienced significant symptoms prior to December 23, 2014, the evidence did not establish loss of use of both hands by that date. Specifically, the Board noted satisfactory hand dexterity for daily living in earlier exams, continued employment until late 2008, and no impact on essential daily activities like driving or grooming in several exams. The December 23, 2014 VA examination noted ankylosis of the left wrist and progressive atrophy in the right intrinsic hand muscles, but the examiner determined this did not meet the criteria for loss of use. A private physician's April 2022 opinion stated it was at least as likely as not that the veteran had loss of use of his left hand by December 2014 and his right hand since May 2007. The Board found the private opinion unpersuasive for the earlier dates. The Board granted an effective date of December 23, 2014, for the evaluation of loss of use of both hands and for SMC based on loss of use of both hands, denying an earlier date.

Rationale

No effective function remained other than that which would be equally well served by amputation with prosthesis by December 23, 2014.; Prior to December 23, 2014, evidence did not establish loss of use of both hands.; Earlier effective date denied due to lack of established loss of use prior to December 23, 2014.

Special Benefit

SMC

Docket No.

220628-255388

Full Decision Text

Citation Nr: A22022632
Decision Date: 11/09/22 Archive Date: 11/09/22

DOCKET NO. 220628-255388
DATE: November 9, 2022

ORDER

An effective date of December 23, 2014, but no earlier, for the evaluation of loss of use of both hands due to service-connected peripheral neuropathy of the upper extremities is granted.

An effective date of December 23, 2014, but no earlier, for entitlement to special monthly compensation (SMC) based on loss of use of both hands is granted.

FINDING OF FACT

A factually ascertainable increase in the severity of the Veteran's service-connected peripheral neuropathy of the upper extremities resulting in loss of use of both hands was not shown until the December 23, 2014 VA examination report.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an effective date of December 23, 2014, but no earlier, for the evaluation of loss of use of both hands due to service-connected peripheral neuropathy of the upper extremities is met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 3.350.

2. The criteria for entitlement to an effective date of December 23, 2014, but no earlier, for entitlement to SMC based on loss of use of both hands has been met. 38 U.S.C. §§ 1114, 5107, 5110; 38 C.F.R. §§ 3.400, 3.350.

REASONS AND BASES FOR FINDING AND CONCLUSIONS

The Veteran served on active duty from September 1966 to September 1968.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2021 Higher Level Review rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which denied entitlement to an effective date earlier than February 6, 2020 for the evaluation of loss of use of both hands and SMC based on loss of use of both hands. The Veteran was notified of the RO's decision in a letter dated November 2021. In June 2022, the Veteran filed a notice of disagreement (NOD) and elected the "evidence submission" option.

This case has a long procedural history, stemming from a June 2008 rating decision in the legacy appeals system, which granted service connection for posttraumatic osteoarthritis of the right and left wrists and assigned separate 10 percent ratings, effective May 10, 2007. This case has been before the Board on multiple occasions. In a July 2018 decision, the Board increased the rating for the Veteran's left wrist disability (which had been previously rated separately as left wrist posttraumatic osteoarthritis and left peripheral sensory ulnar/median neuropathy) to 60 percent based on loss of use of the minor hand, effective December 23, 2014. Additionally, the Board remanded the Veteran's increased rating claims for right and left wrist disabilities on an extraschedular basis. The Board's decision was implemented in a March 2019 rating decision, which also granted entitlement to SMC based on loss of use of the left hand, effective December 23, 2014. In May 2020, the Board again remanded the Veteran's claims of entitlement to increased ratings on an extraschedular basis for his service-connected right and left wrist disabilities. In an October 2020 rating decision, the RO assigned a 100 percent evaluation for loss of use of both hands due to service-connected peripheral neuropathy of the upper extremities (previously evaluated as right peripheral motor and sensory median neuropathy and loss of use of left hand), effective February 6, 2020. Additionally, the RO granted entitlement to SMC based on loss of use of both hands, also effective February 6, 2020. In September 2021, the Veteran requested Higher Level Review (HLR). In a November 2021 HLR rating decision, the RO denied entitlement to an effective date earlier than February 6, 2020 for the evaluation of loss of use of both hands and SMC based on loss of use of both hands. As discussed above, the Veteran's Board appeal was received by VA in June 2022.

Given this procedural history, the Board may only consider the evidence of record at the time of the October 2020 agency of original jurisdiction (AOJ) decision as well as evidence submitted within 90 days of the June 2022 election of the "evidence submission" option.

The Board notes that
. In September 2021, the Veteran requested Higher Level Review (HLR). In a November 2021 HLR rating decision, the RO denied entitlement to an effective date earlier than February 6, 2020 for the evaluation of loss of use of both hands and SMC based on loss of use of both hands. As discussed above, the Veteran's Board appeal was received by VA in June 2022.

The Board notes that through a statement by his representative accompanying his June 2022 notice of disagreement, the Veteran expressly waived the duty to assist, asking that the Board not remand based on any found pre-decisional error. His rights under the duty to assist are thus considered waived, and the Board makes no finding as to whether the VA medical opinions or examinations are adequate to fulfill such duty.

1. Entitlement to an effective date earlier than February 6, 2020 for the evaluation of loss of use of both hands due to service-connected peripheral neuropathy of the upper extremities

Generally, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400.

Where a claim is subject to modernized review system under the AMA based on date of initial claim or by election of the veteran, provisions exist that permit an effective date based on date of claim to be "preserved" following issuance of a decision. See 38 C.F.R. §§ 3.2400, 3.2500. In particular, a veteran "may continuously pursue a claim or an issue by timely and properly filing [an enumerated] administrative review [option]" following issuance of a decision by a RO, the Board, or the Court of Appeals for Veterans Claims (Court). See 38 C.F.R. § 3.2500(c), (h). An effective date will be preserved if a veteran files for administrative review within one year of any decision. 38 C.F.R. § 3.2500(h). However, while the date of claim is preserved when a claim is continuously pursued, the proper effective date is still subject to a finding regarding when entitlement to the benefit sought arose.

The reference above to "the date entitlement arose" is not defined in the current statute or regulation. The Court has interpreted it as the date when the claimant met the requirements for the benefits sought; this is determined on a "facts found" basis. See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000).

In McGrath v. Gober, 14 Vet. App. 28 (2000), the Court held that when the Veteran was actually experiencing symptoms is what is relevant for assigning rating effective dates, not when evidence was created. Thus, the Board will consider whether the evidence of record suggests that the severity of pertinent symptoms increased sometime prior to the date of the examination reports noting pertinent findings.

Thus, in fixing an effective date for an award of increased compensation, VA must make two essential determinations. It must determine when a claim for increased compensation was received, and when the date that the increase is shown to have occurred, i.e., a factually ascertainable increase in disability.

The term "loss of use of a hand or foot" is defined as existing when "no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with the use of a suitable prosthetic appliance." 38 C.F.R. §§ 3.350(a)(2), 4.3. The determination as to whether such loss of use exists will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. Id.

The Veteran contends that an effective date earlier than February 6, 2020 is warranted for the evaluation of loss of use of both hands due to service-connected peripheral neuropathy of the upper extremities.

A March 2008 private treatment record noted that the Veteran was seen regarding
." 38 C.F.R. §§ 3.350(a)(2), 4.3. The determination as to whether such loss of use exists will be made on the basis of the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. Id.

A March 2008 private treatment record noted that the Veteran was seen regarding bilateral wrist pain, as well as numbness and tingling. The Veteran reported daily pain. He reported that he was currently working as a lineman for an energy company and experienced pain and weakness in his hands while he was doing work. He also reported numbness in his ring and small finger, which was especially noticeable at night. The Veteran stated that he woke up often and massaged his hands to relieve the symptoms.

The Veteran was afforded a VA examination May 2008. The Veteran reported continued pain in his bilateral wrists since a 1968 in-service injury. The examiner noted associated tenderness and redness, but no locking. Occasional instability and giving way as a result of the pain was also noted. The Veteran reported flare-ups on a nearly daily basis, which worsened with overuse and activity. He rated his pain during a flare-up at 10/10. The examiner noted that the Veteran had not experienced any incapacitating episodes over the course of the past 12 months. With regard to his activities of daily living, the examiner indicated that the Veteran had no difficulty walking, driving, or shopping; however, recreational activities were prevented, and he had some weakness that provided difficulty with grooming. The examiner noted that the Veteran was currently employed as a lineman for Detroit Edison and use of his bilateral wrists was difficult at times. The Veteran reported the use of a Velcro brace on his right wrist, which provided him some relief. The Veteran denied any current numbness or tingling. On range of motion (ROM) testing, right wrist flexion and extension were to approximately 30 degrees and ulnar and radial deviation were to 10 degrees, with full pronation and supination. Left wrist flexion and extension were to 45 degrees and ulnar and radial deviation were to 20 degrees, with full pronation and supination. Complaints of pain were noted at the extremes of extension and flexion. The examiner noted that the Veteran had satisfactory strength and dexterity in his bilateral hands for activities of daily living. It was also noted that there was mild impairment of daily occupational activities due to the Veteran's wrist condition.

An April 2009 physical residual functional capacity assessment completed in connection with the Veteran's Social Security Administration (SSA) disability claim noted that the Veteran would experience difficulty lifting over 5 pounds. It was noted that when reaching, the Veteran was unable to turn his wrists. Also noted was that the Veteran experienced some difficulty with grooming as his left arm was in a cast during the assessment. He was also found to experience difficulty opening boxes and using utensils such as knives. Driving was found to be difficult due to his wrist disabilities. It was noted that he experienced difficulty lifting, reaching, and using his hands. He reported watching television, performing indoor and outdoor chores, attending church, and socializing.

The Veteran underwent a VA examination for wrist disabilities in June 2009. The examiner noted a history of April 2008 and January 2009 surgeries for right and left wrist pain. The Veteran reported pain and weakness in his bilateral wrists and "intermittent, but frequent" use of wrist braces. On ROM testing, right dorsiflexion was limited to 20 degrees, palmar flexion was limited to 40 degrees, radial deviation was limited to 10 degrees, and ulnar deviation was limited to 20 degrees, with no pain on motion. Left dorsiflexion was limited to 10 degrees, palmar flexion was limited to 20 degrees, radial deviation was limited to 10 degrees, and ulnar deviation was limited to 20 degrees, with pain on motion. Impact on occupational activities was noted as problems with lifting and carrying, as well as pain. Effects of the Veteran's wrist disabilities on the usual daily activities were mild for chores, exercise, and sports. There was no impact on the following activities: shopping, recreation, traveling, feeding, bathing, dressing, toileting, grooming, and driving. An examination for peripheral nerves was performed on the
degrees, and ulnar deviation was limited to 20 degrees, with no pain on motion. Left dorsiflexion was limited to 10 degrees, palmar flexion was limited to 20 degrees, radial deviation was limited to 10 degrees, and ulnar deviation was limited to 20 degrees, with pain on motion. Impact on occupational activities was noted as problems with lifting and carrying, as well as pain. Effects of the Veteran's wrist disabilities on the usual daily activities were mild for chores, exercise, and sports. There was no impact on the following activities: shopping, recreation, traveling, feeding, bathing, dressing, toileting, grooming, and driving. An examination for peripheral nerves was performed on the same day, at which the Veteran reported experiencing numbness in the fingers of his right hand for the past 5 years. The following symptoms were noted: numbness and tingling of the right fingers. Motor strength of the right upper extremity was 5/5. The Veteran reported that he retired from his employment in December 2008. No significant effects on occupation were found.

The Veteran was afforded a VA examination for his right wrist in September 2010. He reported that his right wrist had become progressively worse since his initial injury in 1968. He stated that he used a brace, limited activity, and took NSAIDs for pain. The following right wrist symptoms were noted: instability, pain, stiffness, weakness, incoordination, decreased speed of joint motion, and tenderness. Joint findings revealed the following: crepitus, tenderness, pain at rest, weakness, abnormal motion, guarding of movement, and positive Tinel's and Phalen's tests. On ROM testing, right dorsiflexion was limited to 12 degrees, palmar flexion was limited to 16 degrees, radial deviation was limited to 10 degrees, and ulnar deviation was limited to 12 degrees, with pain on motion. Left dorsiflexion was limited to 10 degrees, palmar flexion was limited to 20 degrees, radial deviation was limited to 10 degrees, and ulnar deviation was limited to 14 degrees, with pain on motion. Evidence of pain following repetitive motion was found. There were no additional limitations after three repetitions. Ankylosis was not found. The Veteran reported that he had been employed as a lineman since 1966 until he retired in 2008. The examiner noted that the Veteran's wrist disabilities impacted occupational activities as follows: decreased manual dexterity, problems with lifting and carrying, decreased strength in the upper extremity, and pain. Effects of the Veteran's wrist disabilities on the usual daily activities were noted as follows: mild for shopping, moderate for chores, and severe for exercise, sports, and recreation. There was no impact on the following activities: traveling, feeding, bathing, dressing, toileting, grooming, and driving. A peripheral nerves examination performed on the same day noted normal reflex testing. Sensory testing revealed numbness and tingling in the right and left index finger and thumb. Motor testing was normal, with the exception of thumb opposition which was 2/5 for the right and left. Muscle tone was normal, and atrophy was not noted.

The Veteran was afforded a VA examination in February 2011. The Veteran reported pain in both wrist joints almost daily, more so with activities and when he handled weights. He reported that he could not handle weights more than 5 to 10 pounds. He reported pain in both wrists rated at 8/10. He reported taking over-the-counter pain medication as needed and experiencing some improvement. The Veteran reported that he also experienced occasional swelling of both wrists and frequent popping sensations. He reported that he continued to experienced tingling and numbness in both hands, especially in the tips of his fingers since his surgeries. He reported having minimal weakness and discomfort in his hands. He also reported dropping things from his hands on some occasions. The Veteran reported that he could do his daily routine simple activities. Dexterity was found to be normal. No major incapacitating episodes or flare-ups were noted. The Veteran reported that he had been using braces on both wrist joints and hands, more so on the right hand. On physical examination, the examiner noted well-healed surgical scars that were not painful or tender. No signs of inflammation, edema, or keloid changes were noted. Tinel's sign was present in both hands. Phalen's sign was negative. Sensations including monofilament touch were diminished over the tips of the fingers in the bilateral hands. No atrophy or wasting of muscles was found. Handgrip and power were slightly diminished bilaterally at 4/
activities. Dexterity was found to be normal. No major incapacitating episodes or flare-ups were noted. The Veteran reported that he had been using braces on both wrist joints and hands, more so on the right hand. On physical examination, the examiner noted well-healed surgical scars that were not painful or tender. No signs of inflammation, edema, or keloid changes were noted. Tinel's sign was present in both hands. Phalen's sign was negative. Sensations including monofilament touch were diminished over the tips of the fingers in the bilateral hands. No atrophy or wasting of muscles was found. Handgrip and power were slightly diminished bilaterally at 4/5. Circulation was intact. Deep tendon reflexes in bilateral upper extremities were normal. The examiner noted that joint function was not additionally limited by pain, weakness, fatigue, or lack of endurance after repetitive use.

The Veteran testified at a Board hearing in May 2014. He reported that his wrist symptoms were worsening. He testified that he experienced severe pain and swelling in his bilateral wrists, as well as tingling and numbness in his fingers. He indicated that his wife bought him plastic cups and plates because they had a tendency to slide through his hand. He also testified that he wore braces on both wrists to keep them stiff and help with the pain. He reported that he was still able to drive; however, he could not drive with braces on both wrists, so he had to take one off when he drove. He further testified that he was in receipt of SSA disability benefits due to his wrist disability.

The Veteran was afforded a VA examination on December 23, 2014. He reported that he wore hand splints on both wrists nearly all of the time, which restricted movement of his wrists and helped him manage his pain. He rated his baseline pain as 6-7/10. He reported taking pain medication. He described difficulty driving because twisting his hands over the steering wheel caused wrist pain. He also reported that he was unable to perform maintenance around his home, explaining that he did not have the agility to use tools due to wrist pain and could not shovel snow or mow his yard. He reported that he retired early from his job. He stated that initially he was out in the field, but at the end of his career he supervised in the field or performed administrative work in the office. His job required him to write frequently, which became difficult due to wrist pain. The Veteran reported flare-ups of pain rated at 10/10, which occurred with manipulation of some handles on the doors. On initial ROM testing, right dorsiflexion was limited to 45 degrees, palmar flexion was limited to 40 degrees, radial deviation was limited to 5 degrees, and ulnar deviation was limited to 25 degrees. Left dorsiflexion was limited to 20 degrees, palmar flexion was limited to 30 degrees, and the wrist was fixed in ulnar deviation at 20 degrees. Pain was noted on examination of both wrists and with weight bearing. Objective evidence of localized tenderness or pain on palpation was noted over the carpal bones in the wrists. The examiner noted that the Veteran's right wrist had significant restriction in radial deviation and that his left wrist did not come to neutral. The examiner further noted that both wrists were not able to be placed in an optimal position for strong gripping or grasping due to the restricted ranges of motion. There was objective evidence of crepitus in the right wrist. The Veteran was able to perform repetitive use testing with at least 3 repetitions. Repetitive use testing in the right wrist limited dorsiflexion to 40 degrees but increased palmar flexion limitation to 45 degrees. Repetitive use testing for the left wrist did not cause further loss of range. Pain, fatigue, weakness, and lack of endurance were found to significantly limit functional ability with repetitive use. The Veteran was examined immediately after repetitive use over time. The examiner nevertheless determined that functional loss with repeated use over time would fix all ranges of motion at 0 degrees except for the left ulnar deviation which remained fixed at 20 degrees. Pain, fatigue, weakness, and lack of endurance were found to significantly limit ability with repeated use over time. The examination was not conducted during a flare-up. ROM measurements during a flare-up were the same as repeated use over time. Pain, fatigue, weakness, and lack of endurance were found to significantly limit ability with flare-ups. Muscle strength testing reflected 2/5 for flexion and extension in the bilateral wrists. Muscle atrophy was found in the right hand. Ankylosis was found
use over time. The examiner nevertheless determined that functional loss with repeated use over time would fix all ranges of motion at 0 degrees except for the left ulnar deviation which remained fixed at 20 degrees. Pain, fatigue, weakness, and lack of endurance were found to significantly limit ability with repeated use over time. The examination was not conducted during a flare-up. ROM measurements during a flare-up were the same as repeated use over time. Pain, fatigue, weakness, and lack of endurance were found to significantly limit ability with flare-ups. Muscle strength testing reflected 2/5 for flexion and extension in the bilateral wrists. Muscle atrophy was found in the right hand. Ankylosis was found in the Veteran's left wrist. The examiner determined that there was not functional impairment of the Veteran's wrists such that no effective functions remained other than that which would be equally well served by an amputation with prosthesis. The examiner determined that the Veteran's wrist disabilities impacted his ability to work, indicating that the Veteran experienced chronic pain in the wrists and would have a difficult time with both manual labor and a sedentary job in which he would have to use his hands. The examiner also noted instability in the Veteran's right wrist, as well as progressive atrophy in the right intrinsic muscles of his hands.

In support of his claim, the Veteran submitted an April 2022 medical opinion from a private physician. After reviewing the Veteran's entire claims file and interviewing the Veteran via telemedicine, the physician concluded the following:

[G]iven the above, it is at least as likely as not that [the] Veteran had loss of use of his left hand by December 2014. Specifically, it is at least as likely as not that due to his service-connected left hand condition, the functional impairment of [the Veteran's] left hand has been of such severity that no effective function remains other than that which would be equally well served by an amputation with prosthesis for the time period from December 2014 to the present. In addition, it is at least as likely as not that the functional impairment caused by his service-connected right hand condition has been of such severity that no effective function remains other than that which would be equally well served by an amputation with prosthesis since at least May 2007 and continuing to the present.

In this case, a factually ascertainable increase in severity of the Veteran's service-connected peripheral neuropathy of the upper extremities which resulted in loss of use of both hands was documented on VA examination on December 23, 2014. During the examination, the examiner noted that the Veteran had ankylosis of the left wrist and progressive atrophy in the right intrinsic muscles of his hands. Although the examiner did not diagnose the Veteran with ankylosis of the right wrist, the Board finds that the Veteran's ROM measurements after repeated use over time and during flare-ups indicating that the Veteran was unable to move his wrist are the functional equivalent of ankylosis.

In reaching this decision, the Board has carefully considered the Veteran's contentions, as well as VA examination reports, the April 2022 private opinion, and the medical evidence of record. After so doing, the Board finds that although the Veteran experienced severe pain, numbness, tingling, swelling, instability, and decreased strength in his bilateral wrists and hands prior to December 23, 2014, the Veteran's disability picture was not such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. The May 2008 VA examiner noted that the Veteran had satisfactory strength and dexterity in his bilateral hands for activities of daily living. The Veteran also remained employed until December 31, 2008, during which time he was able to use his hands as a lineman for an energy company and later in an administrative capacity which required him to frequently write. Additionally, the June 2009 and September 2010 VA examiners found that the Veteran's wrist disabilities had no impact on the following activities: traveling, feeding, bathing, dressing, toileting, grooming, and driving. Furthermore, the Veteran reported to the February 2011 VA examiner that he could do his daily routine simple activities, and the examiner found his dexterity to be normal. At the May 2014 Board hearing, the Veteran testified that he was still able to drive and that he fed himself.

For the reasons discussed above, there is no legal basis for an effective date earlier than December 23, 2014 for the evaluation of loss of use of both hands due to the Veteran's service-connected peripheral neuropathy of the upper extremities.

2. Entitlement to an effective date earlier than February 6, 2020 for entitlement to SMC based on loss of use
bathing, dressing, toileting, grooming, and driving. Furthermore, the Veteran reported to the February 2011 VA examiner that he could do his daily routine simple activities, and the examiner found his dexterity to be normal. At the May 2014 Board hearing, the Veteran testified that he was still able to drive and that he fed himself.

2. Entitlement to an effective date earlier than February 6, 2020 for entitlement to SMC based on loss of use of both hands

The Board notes that the award of SMC based on the loss of use of both hands is derived from the date of the evaluation for such. Specifically, as of February 6, 2020 the Veteran is currently in receipt of additional SMC under 38 U.S.C. § 1114(k) based on loss of use of both hands as well as SMC under 38 U.S.C. § 1114(p). The latter award is based on loss of use of both hands meeting the criteria for SMC under 38 U.S.C. § 1114(m), see 38 C.F.R. § 3.350(c)(1)(i), as well as having an additional disability of posttraumatic stress disorder (PTSD) rated at 50 percent, see 38 C.F.R. § 3.350(f)(3).

As the Board herein has granted the Veteran's claim for an effective date of December 23, 2014 for the evaluation of loss of use of both hands in the instant decision and his 50 percent rating for PTSD is in effect from April 2011, the Veteran meets the criteria for the above described SMC effective December 23, 2014.

Entitlement to an effective date earlier than December 23, 2014 is not warranted for the reasons discussed above.

J. GALLAGHER

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Ruddy, 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.

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