Citation Nr: A24083839 Decision Date: 12/16/24 Archive Date: 12/16/24 DOCKET NO. 200122-62931 DATE: December 16, 2024 ORDER A rating of 50 percent, but no higher, for the Veteran's posttraumatic stress disorder (PTSD) is granted effective May 29, 2019. A total rating based on individual unemployability (TDIU) from May 29, 2019 is granted. FINDINGS OF FACT 1. For the period on appeal, the Veteran's PTSD is productive of occupational and social impairment with reduced reliability and productivity due to panic attacks, anxiety, depression, and disturbances of motivation and mood. 2. The Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment consistent with his education and work history from May 29, 2019. CONCLUSIONS OF LAW 1. From May 29, 2019 onward, the criteria for an initial rating of 50 percent, but no higher, for PTSD have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, DC 9411. 2. From May 29, 2019, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to July 1968 and from August 1970 to July 1977. This matter is on appeal from a June 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In the May 29, 2019 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the June 2019 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. A July 2023 Board decision denied an increased rating for the Veteran's PTSD. A May 2024 United States Court of Appeals for Veterans Claims (CAVC) joint motion for partial remand (JMPR) vacated and remanded the portion of the June 2019 Board decision which denied the increased rating for PTSD. On remand, the Board was specifically directed to consider a buddy statement submitted by the Veteran's wife in January 2020 and the results of the Veteran's 2019 VA examination. Following a remand from the Court, the Board may not consider any new evidence or develop new evidence barring the presence of a pre-decisional duty to assist error. Andrews v. McDonough, 34 Vet. App. 151 (2021). As such, the evidence of record remains limited to the evidence at the time of the June 2019 decision that was initially appealed to the Board. 38 C.F.R. §§ 20.300, 20.303. As an initial matter, the Board must address the Veteran's contention that new and material evidence was received within the one-year period following a Board of Veterans' Appeals (Board) December 2016 rating decision that granted an initial rating for the Veteran's PTSD of 30 percent. Third Party Correspondence received 7/16/2024, pp. 1-2. The Court has consistently held that 38 C.F.R. § 3.156(b) requires VA to determine whether evidence submitted within one year after the issuance of a rating decision constitutes "new and material" evidence relating to an earlier claim. See Bond v. Shinseki, 659 F.3d 1362, 1367 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242 (2010). Until such a determination is made, the claim does not become final. See Beraud v. McDonald, 766 F.3d 1402, 1406-07 (Fed. Cir. 2014). New evidence is that which was not previously submitted to agency decision makers. Material evidence is that which by itself, or when considered with previous evidence of record, relates to an unestablished fact that is necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last final denial, and it must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). Where new and material evidence is received within one year after the initial denial, the denial is not final, and the claim remains pending. 38 C.F.R. § 3.156 (b). The Veteran's representative contends that additional CAPRI records from July 27, 2017 describing the Veteran as having anxiety, drinking one to two beers per day, and being "depressed," constitute new and material evidence received within the one-year appeal period. CAPRI received 9/1/2017, pp. 3-4; CAPRI received 6/10/2019, p. 81. However, prior medical records considered by the RO in its December 2016 decision show that the Veteran had previously reported consuming one to two beers per day (CAPRI received 12/23/2016, p. 47), that he was suffering from anxiety (Id., p. 46), and that he was depressed (Id., p. 14). So although the additional CAPRI records received within the one-year appeal period were new, they were cumulative of symptoms and reports identified by the Veteran in prior treatment records that were considered by the RO as part of its December 2016 rating decision. Therefore, the Board finds that the notes in question were not material because they were duplicative of prior notes and did not raise a reasonable possibility of substantiating the claim. Resultingly, the RO's December 2016 rating decision became final upon the expiration of the one-year appeal period. The Board, therefore, will consider the Veteran's present appeal as that of an increased rating for PTSD in excess of 30 percent from the filing of his May 29, 2019 supplemental claim. The Veteran is seeking an increased rating for PTSD. The period of appellate review now before the Board begins May 29, 2019. The Veteran's disability has been assigned a 30 percent rating throughout the entire appeal period. 8/8/2024 Codesheet. 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. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). 1. Entitlement to a rating in excess of 30 percent for PTSD. The Veteran receives a rating of 30 percent for his PTSD. He filed a claim for an increased rating in May 2019. See 5/29/2019 VA 21-526EZ. Psychiatric disabilities are rated based on the General Rating Formula codified in 38 C.F.R. § 4.130, which provides disability ratings are based on a spectrum of symptoms. "A veteran may qualify for a given disability rating by demonstrating the particular symptoms associated with that percentage, or others of a similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117 (Fed. Cir. 2013). VA must consider all symptoms of a claimant's condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association: Diagnostic and Statistical Manual of Mental Disorders (4th ed. 1994) (DSM-IV) and (5th ed. 2013) (DSM-5). See Mauerhan v. Principi, 16 Vet. App. 436, 442-43 (2002). VA is to engage in a holistic analysis in which it assesses the severity, frequency, and duration of the signs and symptoms of the veteran's service-connected mental disorder; quantifies the level of occupational and social impairment caused by those signs and symptoms; and assigns an evaluation that most nearly approximates that level of occupational and social impairment. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). Under the General Rating Formula for Mental Disorders per 38 C.F.R. § 4.130, in pertinent part, a 30 percent disability rating is warranted when there is occupational and social impairment with occasional decreases in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, and mild memory loss (such as forgetting names, directions, recent events). A 50 percent rating is warranted if the disability is productive of occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short and long-term memory (e.g., retention of only highly learned material; forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. A 70 percent rating is warranted for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); inability to establish and maintain effective relationships. A 100 percent rating is warranted for total occupational and social impairment due to such symptoms such as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. The Veteran underwent an examination for his PTSD in June 2019. See 6/21/2019 C&P Exam. The examiner found the Veteran had occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by medication. Id., p. 3. The Veteran reported a stable second marriage and adequate familial relationships, including with his three children and two grandchildren. Id., pp. 4, 7. The Veteran reported abstinence from substance addiction and abuse. Id., p. 7. The examiner noted the Veteran to be suffering from depressed mood, anxiety, chronic sleep impairment, and disturbances of motivation and mood and reported decreased social engagement, decreased motivation and decreased interest in doing activities. Id., p. 6. The Veteran did not report at the examination that he suffers from panic attacks. Id. The Board finds that the VA examination is both competent and credible and that it should be afforded medium probative weight. In January 2020 correspondence, the Veteran stated that he suffers from frequent nightmares from his experiences in Vietnam and struggles daily with not breaking down. See 1/22/2020 Correspondence. He reported that his wife is not able to sleep close to him in their bed because he physically lashes out in the middle of the night while asleep. There is no indication in the record that the Veteran lacks credibility and because he is competent to describe his own symptoms, his statements are afforded significant probative weight. The Veteran's spouse also submitted a statement in January 2020, reporting that the Veteran suffers from panic attacks two to three times per week. See 1/22/2020 Buddy Statement. She detailed that these panic attacks are at times brought on while the Veteran is in public and sees individual of certain ethnicities, specifically, Vietnamese. She reported that there are times when the Veteran will stay at their house for days at a time and will not shower or shave. She further noted that he has frequent nightmares for which he uses a nebulizer for breathing treatment afterward. She also noted that the Veteran has difficulty remembering to do certain things, like feeding/watering the dogs and turning off the stove when cooking. The Veteran's wife also states that she is concerned that the Veteran is embarrassed about his symptoms and will not report them to his doctors. The Board notes that the Veteran's wife is a registered nurse on a medical-surgical unit and possesses a master's degree in nursing. Id. at pg. 1. For this reason, the Board gives the wife's statements heightened consideration because of her medical expertise and finds her statements to be credible, competent, and highly probative of the facts at issue. Specifically, the Board notes that her first-hand observation of the Veteran's frequent panic attacks and nightmares, paired with her medical expertise, provides insight into the severity of the Veteran's disability that is not available to the June 2019 VA examiner alone. Moreover, the wife indicated her belief that due to the Veteran's embarrassment, he may not be reporting all of his symptoms when he receives treatment or examinations. Id. For these reasons, though both the June 2019 VA examination is credible, competent, and probative, the Board gives more weight to the Veteran's wife's statements because they provide a broader view of the severity of the Veteran's daily symptoms. Therefore, after review of the competent and probative evidence, including the statement submitted by the Veteran's wife and the symptoms reported during the June 2019 examination, the Board finds that a rating of 50 percent, but no higher, is warranted from May 29, 2019. In this regard, the Veteran has documented anxiety manifesting in panic attacks of more than once per week, has observable impairment of short-term memory, including forgetting to complete tasks, has had disturbances of motivation and mood observed by his wife, and has documented depressed mood and difficulty adapting to stressful situations, as evidenced by his wife's account of the Veteran not being able to drive due to fear of others. Moreover, while the June 2019 VA examiner found that the Veteran had no suicidal or homicidal ideations and no reports of hallucinations, the Veteran has short-term memory issues at times, depressed mood, anxiety, chronic sleep impairment (including nightmares), and panic attacks (but is not continuously panicking). He has a stable relationship with his wife and, though he reported decreased social engagement, he has adequate familial relationships. Therefore, when viewing his symptoms as a whole and the impairment they cause in his life, the Board concludes that his symptoms more nearly approximate a rating of 50 percent. The Board also finds that a higher rating of 70 percent is not warranted as the competent evidence does not reflect occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking or mood. Specifically, there is no evidence that the Veteran has ever had suicidal ideation or obsessional rituals that interfere with his routine activities. Moreover, his two to three panic attacks per week do not constitute near-continuous panic. While his wife's statements support that he has irritability and there are times where he will not shower or shave (neglect of hygiene), her statements indicate that this is intermittent rather than a more ongoing deficiency. The Board further finds that entitlement to a higher rating of 100 percent for the Veteran's PTSD is not supported because the competent evidence does not reflect total social and occupational impairment. In this regard, for example, the Veteran does not have persistent delusions or hallucinations or suicidal or homicidal ideations. Moreover, the Veteran lives with his spouse and maintains adequate relationships with other family members. There is no evidence of grossly inappropriate behavior and the Veteran does not appear to have gross impairment in thought processes or communication. While there is evidence that the Veteran will intermittently neglect to shower or shave, there is no evidence of memory loss of names of close relatives or his own name and no evidence that he is a persistent danger of hurting himself or others. Therefore, based on the competent facts of record, a 100 percent rating for the Veteran's PTSD is not more nearly approximated. After looking at the totality of the Veteran's PTSD picture, the Board finds that the symptoms displayed warrant an increased rating of 50 percent, but no higher, for the period on appeal because of his panic attacks, disturbances of motivation and mood, chronic sleep impairment, and difficulty in establishing and maintaining effective social relationships. Accordingly, an increased rating of 50 percent, but no higher, for the Veteran's PTSD is warranted from May 29, 2019. 2. Entitlement to a TDIU from May 29, 2019 is granted. The Veteran's representative contends that the Veteran's severe PTSD symptoms, specifically, "decreased motivation and energy," "reduced reliability and productivity," and "decreased interest in doing activities," prevent him from securing or following any substantially gainful occupation. See Third Party Correspondence received 7/16/2024, p. 2. His representative contends that his mental health condition resulted in him retiring from a prior job due to road rage and concerns about the safety of others. Id., p. 3. The Veteran's representative further contends that the Veteran's bilateral knee disabilities impact his ability "to walk or stand for prolonged periods." Id. Based on the totality of the Veteran's service-connected disabilities, including his PTSD, right shoulder, and bilateral knee disabilities, a TDIU from May 29, 2019 is warranted. Under the applicable criteria, a TDIU rating may be assigned when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). From May 29, 2019, the Veteran's combined disability rating is 70 percent, based on a 50 percent disability rating for PTSD, a 20 percent disability rating for right shoulder rotator cuff repair, 10 percent for right knee arthritis, and 10 percent for left need calcific tendinitis. A bilateral factor of 1.9 percent is applicable for the left and right knee disabilities and is factored into the Veteran's combined rating formula. Given this, the Veteran meets the schedular threshold for a TDIU from May 29, 2019, which is the entire period on appeal. In determining unemployability for VA purposes, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The central inquiry is "whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board will not consider his or her age or impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 65, 71 (2016). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). As to the economic component set forth in Ray, the record indicates that the Veteran has not worked during the entire appeal period, having retired in approximately 2016. See 6/21/2019 C&P Exam, p. 4. There are no records regarding his current income and no evidence that he has worked in any capacity since his retirement in 2016. The Board, therefore, based on the uncontroverted evidence of record, finds that his employment during the appeal period has not been substantially gainful with respect to the economic component under Ray. Turning to the non-economic component in Ray, the Board has considered the Veteran's personal education and work history. The Veteran did earn his high school degree. See CAPRI received 8/8/2024, p. 13. After military service, the Veteran pursued college/vocational courses in truck driving and completed his CDL in 1992. See 6/21/2019 C&P exam, p. 4. In his June 2019 VA examination, the Veteran stated that he had been a truck driver for approximately 34 years prior to retiring in 2011. Id. The Veteran then owned and operated a motorcycle repair shop from 2011 to 2016. Id. There is no evidence of record indicating how much he earned while owning his repair business or why he ceased operations. The Veteran's statements from a 2016 VA examination for PTSD indicate that he retired from truck driving in 2011 because "he had road rage and was very upset at other times," which supports that his PTSD symptoms contributed to that retirement. See 12/16/16 C&P Exam, p. 3. Additionally, the record indicates that he suffered from PTSD-related panic attacks while driving as a result of seeing certain people that reminded him of Vietnam. See Buddy Statement received 1/22/2020, p. 1. These statements from the Veteran's wife are credible and she is competent to make them on the basis of her expertise as a registered nurse. The Board affords the statements significant weight and find they support the conclusion that the Veteran is not able to safely work as a truck driver. With respect to the Veteran's physical ability to perform the type of activities required by certain occupations, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, the Veteran's various VA examinations are highly probative of the limitations imposed on the Veteran by his disabilities. The Veteran underwent a September 2023 VA examination for his right shoulder condition wherein it was noted that both generally and during flareups he has "difficulty with lifting above shoulder level especially for prolonged periods of time, grooming, dressing, lifting > 40 lb above chest height, [and] pulling objects." See VA Examination 9/14/2023. The Veteran treats his symptoms with Tylenol, Naproxen, heat/ice, and rest. Id. The Board finds this examination to be credible and highly probative of the Veteran's physical limitations. The Veteran's January 2017 VA examination for his bilateral knee conditions concluded in the functional impact section that the Veteran's disabilities resulted in an inability to bend, squat, and twist and that his ability to walk distance and stand for prolonged periods was directly limited. See C&P Exam received 2/3/2017, p. 16. The Board finds this examination to be credible and highly probative. As for the Veteran's mental ability to perform the type of activities required by certain occupations, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity, the Veteran's most recent PTSD examination in June 2019 indicated that the Veteran suffers occupational and social impairment due to mild or transient symptoms that decrease work efficiency and ability to perform occupational tasks only during periods of significant stress. See VA Examination received 6/21/2019, p. 3. The Veteran's symptomatology that would likely impact his employability include depressed mood, anxiety, chronic sleep impairment, mild memory loss, disturbances in motivation and mood, and difficulty adapting in stressful situations. Id. Though adequately groomed, pleasant, and cooperative at the examination, the VA examiner reported that the Veteran was slightly anxious, a notation that supports the overall conclusions. Id. Moreover, the Veteran's wife's lay statements corroborate aspects of the June 2019 examination. The statements support that the Veteran has difficulty completing certain tasks, such as turning off the stove after cooking, as well as forgetting to complete tasks at all, such as feeding/watering the dog. See 1/22/2020 Buddy Statement. Additionally, the Veteran will suffer from two to three panic attacks per week and will stay inside for days at a time without showering or shaving. Id. When reviewing the evidence of record as a whole, a TDIU from May 29, 2019 is warranted. The Veteran spent most of his post-military work career (34 years) as a commercial truck driver with little other occupational experience. The record reflects that his PTSD symptoms led him to retiring in 2011 and that he has been unable to work as a truck driver since that time. When taking into consideration the Veteran's physical constraints resulting from his service-connected disabilities, specifically, his right shoulder and bilateral knee disabilities limiting his ability to lift, carry, stand for prolonged periods, bend, twist, squat, and get dressed, as well as his lack of professional skills translatable to careers other than truck driving, the Veteran's ability to secure and follow a substantially gainful occupation are not apparent. Therefore, after affording the Veteran the benefit of the doubt, the Board finds that the competent and probative evidence supports a finding that the Veteran has been rendered unable to secure or follow substantially gainful employment due to his service-connected disabilities during the entire appeal period. For the foregoing reasons, entitlement to a TDIU from May 29, 2019 is granted. CHRISTOPHER A. WENDELL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Donahue, Thomas P. 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.