Citation Nr: 0809898	
Decision Date: 03/25/08    Archive Date: 04/09/08

DOCKET NO.  02-08 357	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Boston, 
Massachusetts


THE ISSUE

Entitlement to an initial evaluation greater than 10 percent 
for residuals of left knee Baker's cyst excision.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. M. Macierowski, Associate Counsel




INTRODUCTION

The veteran served on active duty from April 1968 to April 
1980.  This matter comes before the Board of Veterans' 
Appeals (Board) on appeal from the Department of Veterans 
Affairs (VA) Regional Office in Boston, Massachusetts (RO).


FINDINGS OF FACT

1.  The veteran's residuals of left knee Baker's cyst 
excision are currently in receipt of the maximum schedular 
evaluation for superficial scars that are painful on 
examination.

2.  The veteran's residuals of left knee Baker's cyst 
excision are manifested by limitation of motion of the left 
leg to no less than 30 degrees of flexion or 15 degrees of 
extension, and by a scar that is not located on the head, 
face, or neck; is not deep; does not exceed 144 square inches 
(929 square centimeters); and is not unstable.


CONCLUSION OF LAW

The criteria for an initial evaluation greater than 10 
percent for residuals of left knee Baker's cyst excision are 
not met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 
C.F.R. § 4.71a, Diagnostic Code 7819-7804 (2007).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

With respect to the veteran's claim for an increased initial 
evaluation, VA has met all statutory and regulatory notice 
and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 
5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2005); 
38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2007).  Prior to 
initial adjudication of the veteran's claim, a letter dated 
in July 2001 satisfied the duty to notify provisions; 
additional letters were sent in June 2005, July 2005, 
November 2005, September 2006, and January 2007.  38 U.S.C.A. 
§ 5103(a); 38 C.F.R. § 3.159(b) (1); Quartuccio v. Principi, 
16 Vet. App. 183, 187 (2002).  Further, the purpose behind 
the notice requirement has been satisfied because the veteran 
has been afforded a meaningful opportunity to participate 
effectively in the processing of his claim, to include the 
opportunity to present pertinent evidence.  Simmons v. 
Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. 
Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007) (holding that 
although VCAA notice errors are presumed prejudicial, 
reversal is not required if VA can demonstrate that the error 
did not affect the essential fairness of the adjudication); 
Overton v. Nicholson, 20 Vet. App. 427 (2006).

The veteran's service medical records, VA medical treatment 
records, and identified private medical records have been 
obtained. Specifically, subsequent to the Board's September 
2006 Remand with respect to the issue on appeal, the veteran 
was asked in a September 2006 letter to identify any 
additional private or VA treatment records pertinent to his 
claim, to include those pertaining to a possible January 2006 
or February 2006 repeat excision surgery to remove a regrown 
recurrent left knee Baker's cyst; however, the record does 
not show that the veteran ever responded.   38 U.S.C.A. 
§ 5103A, 38 C.F.R. § 3.159.  The veteran was also accorded VA 
examinations in August 2001, December 2004, November 2005, 
and February 2007, and a fee-based examination in August 
2005.  38 C.F.R. § 3.159(c) (4).  There is no indication in 
the record that any additional evidence, relevant to the 
issues decided herein, is available and not part of the 
claims file.  See Pelegrini v. Principi, 18 Vet. App. 112 
(2004).  As there is no indication that any failure on the 
part of VA to provide additional notice or assistance 
reasonably affects the outcome of the case, the Board finds 
that any such failure is harmless.  See Mayfield v. 
Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman 
v. Nicholson, 19 Vet. App. 473 (2006).   

Additionally, the Board has thoroughly reviewed all the 
evidence in the veteran's claims folder.  Although the Board 
has an obligation to provide reasons and bases supporting 
this decision, there is no need to discuss, in detail, all of 
the evidence submitted by the veteran or on his behalf.  See 
Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) 
(the Board must review the entire record, but does not have 
to discuss each piece of evidence).  The analysis below 
focuses on the most salient and relevant evidence and on what 
this evidence shows, or fails to show, on the claim.  The 
veteran must not assume that the Board has overlooked pieces 
of evidence that are not explicitly discussed herein.  See 
Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law 
requires only that the Board address its reasons for 
rejecting evidence favorable to the claimant).  This is 
especially the case here, where the majority of the evidence 
of record pertaining to the left knee relate to the veteran's 
residuals of a left total knee replacement, a separately 
service-connected disorder adjudicated by the Board in 
September 2005.

Disability ratings are determined by the application of the 
VA's Schedule for Rating Disabilities (Schedule), which is 
based on the average impairment of earning capacity.  
Separate diagnostic codes identify the various disabilities.  
38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2007).  Pertinent 
regulations do not require that all cases show all findings 
specified by the Schedule, but that findings sufficient to 
identify the disease and the resulting disability and above 
all, coordination of the rating with impairment of function 
will be expected in all cases.  38 C.F.R. § 4.21 (2007).

The primary concern in a claim for an increased evaluation 
for service-connected disability is the present level of 
disability.  Although the overall history of the disability 
is to be considered, the regulations do not give past medical 
reports precedence over current findings.  Francisco v. 
Brown, 7 Vet. App. 55, 58 (1994).  However, when an appeal is 
based on the assignment of an initial rating for a 
disability, following an initial award of service connection 
for this disability, the rule articulated in Francisco does 
not apply.  Fenderson v. West, 12 Vet. App. 119 (1999).  
Instead, the evaluation must be based on the overall recorded 
history of a disability, giving equal weight to past and 
present medical reports.  Id. 

Service connection for residuals of left knee Baker's cyst 
excision was granted by an April 2005 rating decision, and a 
10 percent initial evaluation assigned under the provisions 
of 38 C.F.R. § 4.118, Diagnostic Code 7819-7804, effective 
January 27, 2004.  See 38 C.F.R. § 4.118, Diagnostic Code 
7819-7804 (2007), based on evidence in the December 2004 VA 
examination showing that the veteran's Baker's cyst surgical 
removal scar was painful on examination.  The hyphenated code 
used for rating the veteran's disability was intended to show 
that the veteran's surgical scar, noted to be painful on 
examination, was caused by the removal of a benign skin 
neoplasm (the Baker's cyst, also known as a left popliteal 
fossa cyst).  38 C.F.R. § 4.27.  The Board notes that 
Diagnostic Code 7804 provides only a single 10 percent 
evaluation for scars that are painful on examination.  Thus, 
an initial evaluation greater than 10 percent for the 
veteran's residuals of left knee Baker's cyst under 
Diagnostic Code 7804 is not for application.  

The Board has also considered other Diagnostic Codes 
pertaining to scars.  Schafrath v. Derwinski, 1 Vet. App. 589 
(1991).  To that end, the medical evidence of record does not 
reflect that the scar resulting from the veteran's Baker's 
cyst excision surgeries is not located on the head, face, or 
neck; is not deep; does not exceed 144 square inches (929 
square centimeters); and is not unstable.  Thus, Diagnostic 
Codes 7800, 7801, 7802, and 7803 are not for assignment.  
38 C.F.R. § 4.118, Diagnostic Codes 7800, 7801, 7802, 7803 
(2007).

Diagnostic Code 7805 contemplates other scars, and instructs 
that they be rated on limitation of function of the affected 
part.  38 C.F.R. § 4.118, Diagnostic Codes 7805 (2007).  To 
that end, the only evidence of record showing limitation of 
motion due solely to the Baker's cyst residual scar (as 
opposed to the veteran's residuals of a total left knee 
replacement, for which service connection is in effect 
separately) is the clinical evaluation during the February 
2007 VA examination.  At that time, left knee flexion was 
limited to 95 degrees, and left knee extension was limited to 
5 degrees.  For an evaluation greater than 10 percent under 
Diagnostic Codes 5260 and 5261, which contemplate limitation 
of flexion of the leg and limitation of extension of the leg, 
respectively, flexion must be limited to 30 degrees, and 
extension of the leg must be limited to 15 degrees.  
38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261 (2007).  
Accordingly, as the criteria for a 20 percent evaluation are 
not met, an initial evaluation greater than 10 percent under 
Diagnostic Codes 7805, 5260, or 5261 is not warranted.

Finally, the Board has also considered the issue of whether 
the veteran's residuals of left knee Baker's cyst excision 
presents an exceptional or unusual disability picture so as 
to render impractical the application of the regular 
schedular standards such that referral to the appropriate 
officials for consideration of extraschedular ratings is 
warranted.  See 38 C.F.R. § 3.321(b).  Although evaluations 
in excess of that currently assigned may be provided for 
certain manifestations of the veteran's residuals of left 
knee Baker's cyst excision, the medical evidence reflects 
that those manifestations are not present in this case.  In 
this regard, the evidence shows that the veteran has 
undergone two surgeries to excise the recurrent left knee 
Baker's cyst, in March 2004 and January 2005, but showed no 
complications other than a reasonable recovery period.  
Additionally, the medical evidence of record generally 
reflects that the veteran has returned to work following each 
of these surgeries.  Moreover, the veteran has not asserted 
that his residuals of left knee Baker's cyst excision, alone 
and separate from his other service-connected left knee 
disorders, have made him unemployable.  Therefore, in the 
absence of such factors, the criteria for submission for 
consideration of an extraschedular rating pursuant to 38 
C.F.R. § 3.321(b) (1) are not met, and the RO's failure to 
consider or to document its consideration was not prejudicial 
to the veteran.

Because the evidence does not support an initial evaluation 
greater than 10 percent for the veteran's left knee Baker's 
cyst, the preponderance of the evidence is against his claim 
for an initial evaluation greater than 10 percent.  As such, 
the benefit of the doubt doctrine is inapplicable, and the 
claim must be denied.  See 38 C.F.R. § 5107(b); Gilbert v. 
Derwinski, 1 Vet. App. 49 (1990).


ORDER

An initial evaluation greater than 10 percent for residuals 
of left knee Baker's cyst excision is denied.



____________________________________________
JOY A. MCDONALD
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs