Citation Nr: 1304976 Decision Date: 02/11/13 Archive Date: 02/21/13 DOCKET NO. 09-26 384 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial evaluation in excess of 30 percent for service-connected residual scars status-post right ankle fracture repair. 2. Entitlement to an initial evaluation in excess of 10 percent for service-connected residual scars status-post right anterior cruciate ligament (ACL) repair. REPRESENTATION Veteran represented by: Georgia Department of Veterans Services WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD A. Nigam, Counsel INTRODUCTION The Veteran served on active duty from August 1992 to September 1998. These matters initially came before the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, and issued by the Atlanta, Georgia RO. This decision, in pertinent part, granted service connection for the residual scars of right ACL repair; and for the residual right ankle repair scars; and assigned noncompensable evaluations for each disability, effective May 22, 2006. The Veteran testified at a hearing held before a now-retired Veterans Law Judge (VLJ) in March 2011. Given this circumstance, the Veteran was offered the opportunity for another hearing. He accepted and provided testimony before the undersigned VLJ in November 2012. Transcripts of these hearings are associated with the physical claims file and the eFolder on the "Virtual VA" system. In May 2011, the Board, inter alia, remanded the case to the RO via the Appeals Management Center (AMC), in Washington, DC, for additional development of the record, to include obtaining outstanding treatment records and providing VA examination and medical opinion. A July 2012 rating decision, issued in August 2012, granted an increased initial evaluation for the service-connected residual scars status-post right ankle fracture repair from noncompensable to 30 percent, effective May 22, 2006; and an increased initial evaluation for the service-connected residual scars status-post right ACL repair from noncompensable to 10 percent, effective May 22, 2006. However, applicable law mandates that when a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Therefore, these claims remain on appeal. Moreover, as discussed below, in the July 2012 rating decision, the AMC assigned improper effective dates of May 22, 2006, for the grants of increased ratings for the scar disabilities. Under the revised criteria for evaluating the skin under 38 C.F.R. § 4.118 (effective January 20, 2012), the regulation specifies that the effective date of any increased award based on the revised criteria will not be effective before October 23, 2008. See also VAOGCPREC 3-00 (Apr. 10, 2000). Nevertheless, the Board will not disturb the increased ratings assigned by the AMC in the July 2012 rating decision, but will apply the rating criteria in effect prior to October 23, 2008, when considering entitlement to increased ratings for these claims, effective prior to October 23, 2008. In evaluating this case, the Board has not only reviewed the physical claims file, but has also reviewed the eFolder on Virtual VA to ensure a complete assessment of the evidence. Additional, pertinent medical evidence was added to the file in Virtual VA in May 2012, which was considered by the AMC in the July 2012 rating action. As such, the Board will proceed to consider the appeal on the merits. See 38 C.F.R. § 20.1304(c) (2012). The issue of entitlement to service connection for a right hand/finger disorder has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Prior to October 23, 2008, the Veteran's residual scars status-post right ankle fracture repair were not manifested by pain on examination or instability. 2. Prior to October 23, 2008, the Veteran's residual scars status-post right ACL repair were manifested by instability. 3. From October 23, 2008, a few of the scars of the Veteran's right ankle are objectively shown on examination to be painful, and the Veteran has presented competent and credible lay testimony that at least one of the painful scars is also unstable. 4. From October 23, 2008, one of the scars of the Veteran's right knee is objectively shown on examination to be painful, and the Veteran has presented competent and credible lay testimony that the painful scar is also unstable. CONCLUSIONS OF LAW 1. Prior to October 23, 2008, the criteria for an assignment of an initial rating in excess of 30 percent for the service-connected residual scars status-post right ankle fracture repair had not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.25, 4.68 (2012); 4.118, including Diagnostic Codes (DCs) 7803 and 7804 (in effect prior to October 23, 2008). 2. Prior to October 23, 2008, the criteria for the assignment of an initial rating in excess of 10 percent for the service-connected residual scars status-post right ACL repair had not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.25, 4.68 (2012), 4.118, including DCs 7803 and 7804 (in effect prior to October 23, 2008). 3. From October 23, 2008, the criteria for the assignment of a maximum rating of 40 percent for the service-connected residual scars status-post right ankle fracture repair have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.25, 4.68, 4.118, including DC 7804 (2012). 4. From October 23, 2008, the criteria for the assignment of a maximum rating of 20 percent for the service-connected residual scars status-post right ACL repair have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.25, 4.68, 4.118, including DC 7804 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this decision, the Board will discuss the relevant law which it is required to apply. This includes statutes enacted by Congress and published in Title 38, United States Code ("38 U.S.C.A."); regulations promulgated by VA under the law and published in the Title 38 of the Code of Federal Regulations ("38 C.F.R.") and the precedential rulings of the United States Court of Appeals for the Federal Circuit (Federal Circuit) (as noted by citations to "Fed. Cir.") and the United States Court of Appeals for Veterans Claims (Court) (as noted by citations to "Vet.App."). The Board is bound by statute to set forth specifically the issues under appellate consideration and its decision must also include separately stated findings of fact and conclusions of law on all material issues of fact and law presented on the record, and the reasons or bases for those findings and conclusions. See 38 U.S.C.A. § 7104(d); see also 38 C.F.R. § 19.7 (implementing the cited statute); see also Vargas-Gonzalez v. West, 12 Vet. App. 321, 328 (1999); Gilbert v. Derwinski, 1 Vet. App. 49, 56-57 (1990) (the Board's statement of reasons and bases for its findings and conclusions on all material facts and law presented on the record must be sufficient to enable the claimant to understand the precise basis for the Board's decision, as well as to facilitate review of the decision by courts of competent appellate jurisdiction). The Board must also consider and discuss all applicable statutory and regulatory law, as well as the controlling decisions of the appellate courts. The Board must determine the value of all evidence submitted, including lay and medical evidence. See Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. See Barr v. Nicholson, 21 Vet. App. 303 at 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Lay evidence may be competent and sufficient to establish a diagnosis of a condition when: (1) a layperson is competent to identify the medical condition (i.e., when the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer); (2) the layperson is reporting a contemporaneous medical diagnosis, or; (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009) (where widow seeking service connection for cause of death of her husband, the Veteran, the Court holding that medical opinion not required to prove nexus between service connected mental disorder and drowning which caused Veteran's death). In ascertaining the competency of lay evidence, the Courts have generally held that a layperson is not capable of opining on matters requiring medical knowledge. Routen v. Brown, 10 Vet. App. 183 (1997). In certain instances, however, lay evidence has been found to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See, e.g., Barr v. Nicholson, 21 Vet. App. 303 (2007) (concerning varicose veins); see also Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (a dislocated shoulder); Charles v. Principi, 16 Vet. App. 370 (2002) (tinnitus); Falzone v. Brown, 8 Vet. App. 398 (1995) (flatfeet). Laypersons have also been found to not be competent to provide evidence in more complex medical situations. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (concerning rheumatic fever). Competent medical evidence is evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also include statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. See Madden v. Brown, 125 F.3d 1447 (Fed Cir. 1997) (holding that the Board has the "authority to discount the weight and probative value of evidence in light of its inherent characteristics in its relationship to other items of evidence"); Caluza v. Brown, 7 Vet. App. 498, 511-512 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996) (per curiam) (table). The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Duties to Notify and Assist The Veterans Claims Assistance Act (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claims. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. See 38 C.F.R. § 3.159(b)(1). With regard to notice regarding an initial evaluation following the grant of service connection, once service connection is granted, the claim is substantiated and additional VCAA notice is not required; any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Filing a notice of disagreement (NOD) begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of VCAA, the Veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of prejudice with regard to the notice in this case; hence further VCAA notice is not required with regard to the initial rating appeal. Pre- and post-adjudication VCAA letters dated in July 2006 and June 2011, collectively explained the evidence necessary to substantiate the claims, and informed the Veteran of his and VA's respective duties for obtaining evidence. These letters also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490-491 (2006). As noted, the claims were readjudicated in the July 2012 rating action. Accordingly, prejudicial error in the timing or content of VCAA notice has not been established and any error is not outcome determinative. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency). Further, if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome by the following: (1) based on the communications sent to the Veteran over the course of this appeal, he clearly has actual knowledge of the evidence he is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to him by VA, it is reasonable to expect that he understands what is needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). VA has a duty to assist veterans in obtaining evidence necessary to substantiate their claims. The claims file contains in-service and post-service medical treatment records, and reports of VA examinations (August 2006 and June 2011). With respect to the VA examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). These VA examination reports generally reflect review of the claims file, examination of the Veteran, and description and evaluation of his claimed disabilities. In particular, these examination findings are sufficient for proper application of the relevant rating criteria and adequate for the purpose of adjudication the issues decided hereinbelow. The Board notes that the record indicates during the course of the appeal the Veteran submitted VA Form 21-4142's, Authorization and Consent to Release of Information to the Department of Veterans Affairs, for two private practitioners, the records of which have not yet been obtained. However, in July 2012, he telephonically reported that they were not pertinent to the claims on appeal. Hence, further attempt to obtain these records is unnecessary at this time. The Veteran has not made the RO, the AMC or the Board aware of any additional evidence that must be obtained in order to fairly decide the claims on appeal. He has been given ample opportunity to present evidence and argument in support of his claims. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of these issues have been obtained and the case is ready for appellate review. The Board additionally finds that general due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). The Merits of the Claim-Entitlement to Increased Ratings Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.20 (2012). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where the veteran appeals the rating initially assigned for the disability, after already having established service connection for it, VA must consider the propriety of a staged rating that is indicative of changes in the severity of the course of his disability over time. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court recognized a distinction between a veteran's dissatisfaction with an initial rating assigned following a grant of service connection and a claim for an increased rating of a service-connected disorder. In the case of the assignment of an initial rating for a disability following an initial award of service connection for that disability (the circumstances of the present appeal), separate ratings can be assigned for separate periods of time based on the facts found-"staged" ratings. See Fenderson, supra, at 125-26. It is the responsibility of the rating specialist to interpret reports of examination in the light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2012). Ratings shall be based, as far as practicable, upon the average impairments of earning capacity. However, from time to time, VA will readjust this schedule of ratings in accordance with experience. To accord justice in an exceptional case in which the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Veteran seeks increased initial ratings for his service-connected residual scars status-post right ankle fracture repair and for his service-connected residual scars status-post right ACL repair, which are rated as 30 percent and 10 percent disabling, respectively, under 38 C.F.R. § 4.118, DC 7804 (effective from the date of receipt of his increased rating claim on May 22, 2006). The criteria for rating scars were amended effective October 23, 2008 and apply to all claims received by VA on or after October 23, 2008. On January 20, 2012, but effective retroactively to October 23, 2008, 38 C.F.R. § 4.118 was again revised to clarify that as to claims filed before October 23, 2008, the old criteria will apply to applications received by VA before that date. However, a veteran whose scars were rated by VA under a prior version of diagnostic codes 7800, 7801, 7802, 7803, 7804, or 7805 of 38 CFR 4.118, may request review under these clarified criteria, irrespective of whether his or her disability has worsened since the last review. The effective date of an increased rating award, however, will in no case be before October 23, 2008. Also, the Court has held in the past that where the law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted the VA Secretary to do otherwise and the Secretary did so. See Karnas v. Derwinski, 1 Vet. App. 308 (1991). The Karnas rule has, however, since been limited to some degree by a decision of the Federal Circuit as well as legal precedent of VA's General Counsel. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) and VAOPGCPREC 7-03. The revised statutory or regulatory provisions may not be now applied to any time period before the effective date of the change, although the former provision may be applied prospectively. See 38 U.S.C.A. § 5110(g) (West 2002); 38 C.F.R. § 3.114 (2012); VAOPGCPREC 3-2000. The RO considered the Veteran's claims under the amended criteria and in a May 2009 statement of the case (SOC) the Veteran was duly notified of these changes. Also, the AMC granted entitlement to increased evaluations for both disabilities under the amended criteria in the July 2012 rating action. In order to review the record in the light most favorable to the Veteran, as the applicability of the revised criteria was recently clarified, the Board will consider the rating criteria in effect prior to and as of October 23, 2008, in adjudicating this claim. Under the rating criteria in effect prior to October 23, 2008, a review of applicable rating codes indicates that the Veteran would be entitled to ratings provided under Diagnostic Codes 7803 and 7804, but that further evaluation under other diagnostic codes for rating skin disabilities is not appropriate. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). Under prior Diagnostic Code 7803, a scar that was superficial and unstable could be assigned a 10 percent rating. 38 C.F.R. § 4.118, DC 7803 (in effect prior to October 23, 2008). Note (1) An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, DC 7804, Note (1) (in effect prior to October 23, 2008). Note (2) A superficial scar is one not associated with soft tissue damage. See 38 C.F.R. § 4.118, DC 7804, Note (2) (in effect prior to October 23, 2008). Under prior Diagnostic Code 7804, a scar that was superficial and painful on examination could be assigned a 10 percent rating. 38 C.F.R. § 4.118, DC 7804 (in effect prior to October 23, 2008). Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. See 38 C.F.R. § 4.118, DC 7804, Note (1) (in effect prior to October 23, 2008). Note (2) provides that a 10 percent evaluation will be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable evaluation (See §4.68 of this part on the amputation rule). See 38 C.F.R. § 4.118, DC 7804, Note (2). Prior to October 23, 2008, further evaluation under other diagnostic codes for rating skin disabilities is not appropriate. In this regard, the lay and clinical evidence did not show the Veteran had any scars of the head, face or neck, which would have entitled him to evaluation under Diagnostic Code 7800; the lay and clinical record did not show that he had any deep scars that caused limitation of motion, which would have entitled him to evaluation under Diagnostic Code 7801; the lay and clinical record did not show that he had any superficial scars of an area or areas of 144 square inches (929 sq. cm.) or greater that did not cause limited motion, which would have entitled him to evaluation under Diagnostic Code 7802; and the lay and clinical record did not show that he had any dermatitis or eczema, which would have entitled him to evaluation under Diagnostic Code 7806. 38 C.F.R. § 4.118 (2012). The revisions to Diagnostic Code 7804 provide for evaluations of unstable or painful scars (30 percent for five or more scars that are unstable or painful; 20 percent for three or four scars that are unstable or painful; and 10 percent for one or two scars that are unstable or painful). The notes associated with this diagnostic code were also revised (Note (1): An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar; Note (2): If one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars; and Note (3): Scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable). From October 23, 2008, a review of applicable rating codes reveals that the Veteran would not be entitled to any greater rating than that already provided under Diagnostic Code 7804, and that further evaluation under other diagnostic codes for rating skin disabilities is not appropriate. See Butts v. Brown, 5 Vet. App. 532 (1993) (choice of diagnostic code should be upheld if it is supported by explanation and evidence). In this regard, the lay and clinical record does not show that the Veteran has any scars of the head, face or neck, which would entitle him to evaluation under Diagnostic Code 7800; the lay and clinical record does not show that he has any deep and nonlinear scars of an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) or greater, which would entitle him to evaluation under Diagnostic Code 7801; the lay and clinical record does not show that he has any superficial and nonlinear scars, which would entitle him to evaluation under Diagnostic Code 7802; and the lay and clinical record does not show that he has any dermatitis or eczema, which would entitle him to evaluation under Diagnostic Code 7806. 38 C.F.R. § 4.118 (2012). All disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25 (2012). However, the evaluation of the same "disability" or the same "manifestations" under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would over-compensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993) (interpreting 38 U.S.C.A. § 1155). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a Veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). As noted above, in the July 2012 rating decision, the AMC incorrectly assigned effective dates for the 30 percent and 10 percent ratings for the scar disabilities. Consideration of factors wholly outside the rating criteria constitutes error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 207-08 (1994). Also, the Board finds that the evidence of record prior to October 23, 2008, indicates the Veteran would have been entitled to no more than a noncompensable evaluation for the right ankle scars and a 10 percent evaluation for the right knee scars, under the criteria for rating the skin prior to October 23, 2008. In this regard, the service treatment records generally show findings of right knee and right ankle pain related to surgeries performed in 1993, 1994 and 1995 on his right knee and right ankle due to various injuries sustained in service. They do not indicate that pain was objectively observed in any scar on examination, and they do not show reports of pain or instability in any scar in the course of treatment for the right ankle and the right knee after the surgeries. An August 2006 QTC examination report indicates a history of the Veteran tearing his right ACL in 1993 and fracturing his right ankle in 1994. On physical examination of the skin, the examiner observed the Veteran had a level scar present at the right patella, measuring 10 centimeters (cm.) by 0 cm., without tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, hyperpigmentation and abnormal texture. The examiner also observed 4 scars located on the right lateral malleolus, the first measuring 5 cm. by 0 cm.; the second measuring 5.5 cm. by 0 cm.; the third measuring 4.5 cm. by 0 cm.; and the fourth measuring 4 cm. by 0 cm.. These scars were described as being without tenderness, disfigurement, ulceration, adherence, instability, tissue loss, keloid formation, hypopigmentation, hyperpigmentation, abnormal texture, inflammation and edema. In his notice of disagreement (NOD), received in May 2007, the Veteran reported that his right ankle and right knee scars were painful, and that his right knee scar frequently got infected. The Board finds the Veteran's testimony that his right knee scars frequently got infected to be competent and credible evidence of unstable scars. However, at no point in the clinical record have the Veteran's right ankle scars and right knee scars been shown to be painful on examination, and at no point in the lay record had the Veteran reported that his right ankle scars were unstable, prior to October 23, 2008. Thus, applying the regulation cited above, the Veteran would not be entitled to an initial compensable evaluation for the right ankle scars under 38 C.F.R. § 4.118, DCs 7803 and 7804 (in effect prior to October 23, 2008), and would only be entitled to an initial evaluation of 10 percent for the right knee scars under 38 C.F.R. § 4.118, DC 7803 (in effect prior to October 23, 2008). However, as noted, the Board will not disturb the 30 percent rating assigned for the right ankle scars disability, or the 10 percent rating assigned for the right knee scars disability, effective prior to October 23, 2008. Yet, the regulation is clear. It states that, under 38 C.F.R. § 4.118, the effective date of an increased rating award under the revised criteria for evaluating the skin will in no case be before October 23, 2008. Hence, the Veteran's claims for increased initial evaluations in excess of 30 percent and 10 percent for the right ankle scars and right knee scars, for the period prior to October 23, 2008 will be denied. For the period from October 23, 2008, the lay and medical evidence of record more nearly approximates and is consistent with initial ratings of 40 percent and 20 percent for the residual scars status-post right ankle fracture repair, and for the residual scars status-post right ACL repair, respectively, which are the maximum evaluations allowable for both disabilities. 38 C.F.R. §§ 4.3, 4.7. These evaluations include additional 10 percent compensation for "one or more scars are both unstable and painful" added to each evaluation, based on the total number of unstable or painful scars (5 scars for the right ankle and 2 scars for the right knee, respectively). 38 C.F.R. § 4.118, DC 7804, Note (2). Post-service VA treatment records, dated since October 23, 2008, reflect that he complained of right knee and right ankle pain; however, they generally do not show complaint of or treatment for any of the service-connected right knee and right ankle scars. A June 2011 VA scars examination report shows a history for the right knee scars of right knee arthroscopy in 1993 and right knee ACL reconstruction in 1994, with no skin breakdown over the scars, and reports of pain. On physical examination, the examiner observed a scar measuring .5 cm. by 9 cm., described as painful, superficial, vertical, tender to touch and disfiguring. The examiner noted there was no drainage, swelling, exfoliation, evidence of ulceration or breakdown, adherence to underlying tissue, inflexibility, limitation of motion, visible or palpable tissue loss, or gross distortion or asymmetry of features. The scar was not found to be deep or unstable; however, the skin showed signs of erythema and keloid formation. The examiner observed a second right knee scar, attributed to the 1994 surgery, measuring .2 cm. by 1 cm, described as superficial, not painful, and without sign of skin breakdown. The examiner noted there was no inflammation, edema, keloid formation, visible or palpable tissue loss, gross distortion or asymmetry of features, disfigurement, or with other disabling effects. The scar was described as not deep, not unstable and not painful, nor did it result in any limitation of motion. The examiner observed a third right knee scar, attributed to a 1995 right knee screw removal, measuring 5.5 cm. by .5 cm, which the Veteran described as painful. The examiner noted the scar was painful and superficial, but had no signs of skin breakdown, inflammation, edema, or keloid formation. The examiner indicated there were no other disabling effects, no visible or palpable tissue loss, and no gross distortion or asymmetry of features. The scar was not deep or unstable, and did not result in any limitation of motion. This report also shows a history of right ankle scars located in the right medial malleolus due to right ankle surgery in 1995. On physical examination, the examiner observed a right ankle scar measuring .2 cm. by 1.2 cm., described as superficial, not deep, not painful and not unstable. The examiner noted there was no inflammation, edema, keloid formation, visible or palpable tissue loss, gross distortion or asymmetry of features, disfigurement, or other disabling effects, and the scar did not result in any limitation of motion. The examiner observed a second right ankle scar, measuring .1 cm. by 2 cm., described as superficial, not deep, not painful and not unstable. The examiner noted there was no inflammation, edema, keloid formation, visible or palpable tissue loss, gross distortion or asymmetry of features, disfigurement, or other disabling effects, and the scar did not result in any limitation of motion. The examiner observed a third right ankle scar, measuring .8 cm. by 3 cm., which the Veteran described as painful. The examiner noted the scar was superficial and not deep. It had no inflammation, edema or keloid formation. The examiner indicated the scar was tender to palpation without redness or limitation of motion. It was described as appearing slightly disfiguring, with no palpable tissue loss, gross distortion or asymmetry of features, or instability. The examiner observed a fourth right ankle scar, measuring 1 cm. by 4 cm., described as superficial, not deep, not painful and not unstable. The examiner noted there was no inflammation, edema, keloid formation, visible or palpable tissue loss, gross distortion or asymmetry of features, disfigurement, or other disabling effects, and the scar did not result in any limitation of motion. The examiner observed a fifth right ankle scar, measuring .5 cm. by 2 cm., which the Veteran complained was sensitive to touch. The scar was described as superficial, not painful, not deep and not unstable. The examiner noted there were no signs of skin breakdown, inflammation, edema, keloid formation, visible or palpable tissue loss, gross distortion or asymmetry of features, disfigurement, or other disabling effects, and the scar did not result in any limitation of motion. The examiner observed a sixth right ankle scar, measuring .5 cm by 4 cm., which the Veteran complained was painful. The scar was described as painful and superficial, but not deep or unstable. The examiner noted there were no signs of skin breakdown, inflammation, edema, keloid formation, visible or palpable tissue loss, gross distortion or asymmetry of features, disfigurement, or other disabling effects, and the scar did not result in any limitation of motion. Finally, the examiner observed a seventh right ankle scar, measuring .5 cm. by 4 cm., which the Veteran complained was painful. The scar was described as painful and superficial, but not deep or unstable. The examiner noted there were no signs of skin breakdown, inflammation, edema, keloid formation, visible or palpable tissue loss, gross distortion or asymmetry of features, disfigurement, or other disabling effects, and the scar did not result in any limitation of motion. The examiner provided an employment history for the Veteran, and noted that he was currently employed full time as a manager of a grocery store. He reported that he had worked there for 5 to 10 years. The Veteran indicated that he lost less than 1 week of work in a 12-month period due to a doctor's appointment related to a right scar infection. Prior to working in the grocery store, the Veteran reported that he worked at "Walmart" as a customer service manager, from 2003 to 2006; as a district sales manager with "Murphy Oil company," from 2001 to 2003; and as an inside sales representative with "GHMR company, inc.," from 1998 to 2001. The Veteran described significant effects on his occupation due to his scar disabilities, to include pain. He also reported that he experienced irritation of the scars when clothing touched his right knee and right ankle scars, and that he had to wear sneakers and shorts to avoid skin irritation and pain. This examination report is highly probative as to the Veteran's subjective report that he experienced flare-ups of irritation in his scars when clothing touched them. It was generated with a view towards ascertaining the Veteran's then-state of physical fitness and is akin to a statement of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73 (1997) (observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rational that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Also, in testimony presented before the Board in March 2011 and November 2012, the Veteran reported symptoms of pain, "break outs," redness, irritation, deterioration, bleeding, swelling, infection and pus formation in all of his scars, and that his scars will occasionally rip open if any clothing touches them. During the November 2012 hearing, the Veteran explained that the June 2011 VA examiner did not observe that his scars were unstable because they were not actively irritated, bleeding, and "broken out" during the examination. However, he reported that he often experienced symptoms of bleeding in both his right ankle and right knee scars whenever he wore clothing over them, which he argued meets the criteria for an "unstable" scar as defined in Diagnostic Code 7804. The Board has duly considered the Veteran's personal statements and hearing testimony, and finds him to be uniquely suited to describe the nature and severity of his service-connected right ankle scars and right knee scars disabilities. He is certainly competent to describe symptoms of flare-ups of bleeding and pus formation in his scars, and the Board finds his testimony credible as to his skin symptomatology. See 38 C.F.R. § 3.159(a)(2); Falzone v. Brown, 8 Vet. App. 398 (1995); Heuer v. Brown, 7 Vet. App. 379 (1995). Hence, the Board accords these statements high probative value as to the degree of severity of the scar disabilities, especially as they pertain to the Veteran's descriptions of multiple, unstable, painful flare-ups in both the scars of the right ankle, and the scars of the right knee. The Court has recognized that some conditions, by their inherent nature, wax and wane and accordingly are sometimes active and other times not. See Ardison v. Brown, 6 Vet. App. 405, 408 (1994). The Board finds instability and pain in scars to be conditions that, by their inherent nature, are at times active and at times inactive. The Board finds that from October 23, 2008, the objective medical evidence shows that several of the Veteran's scars for both the right ankle and the right knee are painful, and the competent and credible lay evidence shows that at least one of the painful scars of the right ankle and at least one of the painful scars of the right knee are also unstable. These lay assertions are consistent with the findings in the June 2011 VA examination report, which reveals that the Veteran reported he experienced irritation of the scars when clothing touched his right ankle and right knee scars, and that he had to wear sneakers and shorts to avoid skin irritation and pain. See Hayes v. Brown, 5 Vet.App. 60, 69-70 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence) (citing Wood v. Derwinski, 1 Vet.App. 190, 192-93 (1992)); see also Guerrieri v. Brown, 4 Vet.App. 467, 470-471 (1993) (the probative value of medical evidence is based on the physician's knowledge and skill in analyzing the data, and the medical conclusion he reaches; as is true of any evidence, the credibility and weight to be attached to medical opinions are within the province of the Board). Resolving any doubt in favor of the Veteran, the Board finds that, from October 23, 2008, his right ankle symptomatology more nearly approximates the rating criteria for a 40 percent evaluation, and his right knee symptomatology more nearly approximates the rating criteria for a 20 percent evaluation, under Diagnostic Code 7804. 38 C.F.R. §§ 4.2, 4.3, 4.7. There can be no doubt that further medical inquiry could be undertaken with a view towards development of the claim. However, under the "benefit-of-the-doubt" rule, where there exists "an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter," the Veteran shall prevail upon the issue. Ashley v. Brown, 6 Vet. App. 52, 59 (1993); see also Massey v. Brown, 7 Vet. App. 204, 206-207 (1994). In summary, from October 23, 2008, a 40 percent evaluation is warranted for service-connected residual scars status-post right ankle repair; and a 20 percent evaluation is warranted for service-connected scars status-post right ACL repair. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996); Brown v. Brown, 5 Vet. App. 413, 421 (1993). Extraschedular Considerations Ordinarily, the Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2012). The Veteran has submitted no evidence showing that either of his service-connected scar disabilities have, at any point in the appeal, markedly interfered with his employment status beyond that interference contemplated by the assigned evaluations, and there is also no indication that the scar disabilities have necessitated any periods of hospitalization during the pendency of this appeal. As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Thun v. Peake, 22 Vet. App. 111 (2008). Entitlement to a total disability rating based on individual unemployability (TDIU), is an element of all appeals of an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). The record shows the Veteran is currently employed, thus any development or consideration under Rice is therefore not appropriate. ORDER Prior to October 23, 2008, an initial rating in excess of 30 percent for the service-connected residual scars status-post right ankle fracture repair is denied. Prior to October 23, 2008, an initial rating in excess of 10 percent for the service-connected residual scars status-post right ACL repair is denied. From October 23, 2008, a maximum rating of 40 percent for the service-connected residual scars status-post right ankle fracture repair, is granted, subject to the regulations controlling disbursement of VA monetary benefits (including 38 C.F.R. § 4.68 ). From October 23, 2008, a maximum rating of 20 percent for the service-connected residual scars status-post right ACL repair, is granted, subject to the regulations controlling disbursement of VA monetary benefits (including 38 C.F.R. § 4.68 ). ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs