Citation Nr: 1333162 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 10-12 559 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been submitted to reopen service connection for a neck disability. 2. Entitlement to service connection for a lower back disorder. 3. Entitlement to an increased disability rating for a service-connected right knee disorder. 4. Entitlement to a compensable disability rating for a service-connected scar on the right hand. 5. Entitlement to an increased disability rating for service-connected right 5th finger disorder, to include the propriety of the reduction of the evaluation of this disorder from 10 to 0 percent as of June 14, 2012. REPRESENTATION Appellant (Veteran) represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Christopher McEntee, Counsel INTRODUCTION The Veteran served on active duty from November 2000 to November 2004. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The case was later transferred to the VA RO in St. Louis, Missouri. The Board has reviewed the Veteran's entire claims file, to include documents of record in his virtual VA folder. No relevant evidence has been included in the claims file since the most recent supplemental statement of the case (SSOC) dated in July 2012. 38 C.F.R. §§ 19.31, 20.1304(c) (2013). In the decision below, the Board will deny the Veteran's claim to reopen service connection for a neck disorder, will grant service connection for a lower back disorder, will deny an increased rating for the right knee disorder, and will deny the claim for an increased rating for a right hand scar disorder. The claim for a higher disability rating for residuals of a fracture to the 5th right finger is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. In an unappealed May 2005 rating decision, the RO denied the Veteran's claim of service connection for a neck disorder. 2. New evidence that tends to prove previously unestablished facts necessary to substantiate the underlying claim of service connection for a neck disorder has not been received since the May 2005 rating decision. 3. The evidence is in relative equipoise as to whether the Veteran's current lower back strain had its onset during active service. 4. Beginning September 16, 2008, the Veteran began experiencing the symptomatic removal of semilunar cartilage from his right knee. 5. Beginning June 14, 2012, the record establishes that the Veteran had slight lateral instability in his right knee. 6. Beginning June 14, 2012, the record established that, though the Veteran experiences noncompensable range of motion in his right knee, he has arthritis in his right knee. 7. For the entire rating period under appeal, the Veteran's right hand scar has been superficial, less than 144 square inches in size, stable, not painful on examination, and has not caused limitation of function of the right hand. CONCLUSIONS OF LAW 1. A February 2005 rating decision by the RO that denied the Veteran's claim to service connection for a neck disorder is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.200 (2013). 2. New and material evidence has not been received to reopen the claim of service connection for a neck disorder. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). 3. Service connection for a lower back strain is warranted. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013). 4. The criteria for a 10 percent rating, for residuals of the Veteran's right knee meniscus removal surgery, have been met since September 16, 2008. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5259 (2013). 5. The criteria for a separate rating of 10 percent, for lateral instability in the Veteran's right knee, have been met since June 14, 2012. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5257 (2013). 6. The criteria for a compensable disability rating for a scar on the Veteran's right hand have not been met during the appeal period. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA applies to these claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 1) veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). If a claimant seeks to reopen a claim that was previously denied, VA must notify the claimant of the evidence and information that is necessary to reopen the claim as well as the evidence and information necessary to establish the underlying claim for the benefit sought. The notification letter must describe what evidence would be sufficient to substantiate the element or elements required to establish service connection that were found insufficient in the prior denial. Kent v. Nicholson, 20 Vet. App. 1, 10 (2006). However, the VCAA is not applicable where further assistance would not aid the appellant in substantiating his claim. Wensch v. Principi, 15 Vet App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); see also VAOPGCPREC 5-2004; 69 Fed. Reg. 59,989 (2004) (holding that the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). In this matter, the RO provided the Veteran with a January 2008 notification letter which addressed the claim to reopen service connection, the claim to service connection, and the claims for increased rating. The letter notified the Veteran that his claim for a neck disorder had been previously denied, and that to reopen that claim, new and material evidence had to be submitted. Regarding the claims for increased rating and service connection, the letter notified the Veteran regarding what information and evidence is needed to substantiate the claim, how disability ratings and effective dates are determined, and what information and evidence must be submitted by the Veteran and what evidence VA would obtain. The Board also finds that the Veteran has been afforded adequate assistance in response to his claims. The Veteran's service treatment records (STRs) are on file, as are private and VA medical records pertaining to his disorders. The Veteran has been provided with VA compensation examinations into his claims for service connection and for increased ratings, and detailed reports of the examinations have been included in the record. Neither the Veteran nor his representative has identified any outstanding evidence, to include medical records, which could be obtained to substantiate the claims. The Board is also unaware of any such evidence. Accordingly, the Board will address the claims below. II. The Claim to Reopen the Claim for Service Connection The Veteran claims that he incurred a chronic neck injury during service. Service connection for VA compensation purposes will be granted for a disability resulting from disease or personal injury incurred in the line of duty or for aggravation of a preexisting injury in the active military, naval or air service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303(a) (2013). The Veteran was discharged from active duty in November 2004. Soon thereafter, in December 2004, he claimed service connection for a neck disorder. The RO denied the claim in a February 2005 rating decision. As the Veteran did not appeal the decision, the decision became final. See 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. Where a service connection claim has been finally decided, VA, before addressing that claim anew, must first determine whether new and material evidence has been submitted to reopen that claim. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2013). If new and material evidence is presented or secured with respect to a final decision, the Secretary shall reopen and review the former disposition of that claim. 38 U.S.C.A. § 5108. The requirement of submitting new and material evidence to reopen a claim is a material legal issue that the Board is required to address on appeal regardless of the RO's determination. Barnett v. Brown, 83 F.3d 1380, 1383-84 (Fed. Cir. 1996). VA regulations define "new" evidence as existing evidence not previously submitted to agency decision makers. "Material" evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). New and material evidence cannot be cumulative or redundant and must raise a reasonable possibility of substantiating the claim. Id. If new and material evidence is received prior to the expiration of the appeal period following a particular rating decision, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). In December 2007, the Veteran filed a claim to reopen service connection for a neck disorder. In the April 2008 rating decision on appeal, the RO denied the Veteran's claim, finding that the claim would not be reopened because the record lacked new and material evidence. In February 2005, the relevant evidence of record considered by the RO in the final rating decision consisted of the Veteran's lay assertion in his claim, in which he claims that he injured his neck during service, his STRs, which are negative for a neck disorder, and private treatment records, which are also negative for a neck disorder. Based on this evidence, the RO found service connection unwarranted for a neck disorder. 38 C.F.R. § 3.303. Again, the February 2005 decision became final. It is therefore not subject to revision upon the same factual basis. 38 U.S.C.A. § 7105; 38 C.F.R. § 20.200. The evidence that must be considered in determining whether there is a basis for reopening the Veteran's claim is relevant evidence that has been added to the record in conjunction with the Veteran's December 2007 claim to reopen service connection. The relevant evidence that has been added to the record consists of VA and private treatment records which note the Veteran's complaints of neck pain, and an October 2009 VA compensation examination report which notes the Veteran's complaints of pain and limitation, notes his report of experiencing an in-service injury, notes that he did not seek medical assistance in service, notes a current diagnosis of cervical spine degenerative joint disease, and states that it would be "mere speculation" to offer an opinion regarding whether the DJD were due to service. His refusal was based on his finding that the Veteran "did not seek medical advice. There is no service medical record [which] indicates [that the] veteran suffered neck pain during service." This evidence is certainly new evidence in the claims file. It has been included in the claims file since the February 2005 final rating decision. None of the new evidence is material evidence, however. The crux of the Veteran's claim is that he has a neck disorder that he incurred during service. As was the case in February 2005, the current record contains no medical evidence showing that he either injured his neck during service, or that an injury during service relates to the current disorder. The current record continues to lack information that would enable the Board to grant a service connection finding here. Thus, the new evidence does not tend to prove previously unestablished facts necessary to substantiate the underlying claim of service connection for a neck disorder. The new evidence does not raise a reasonable possibility of substantiating the Veteran's claim. As with the evidence of record in February 2005, the new evidence merely shows that the Veteran has a neck problem without any indication that it is due to service. Accordingly, the claim to reopen service connection for a neck disorder is denied. In this decision, the Board is mindful of the fact that the October 2009 VA examiner declined offering an opinion on service connection, opting to state that to do so would be speculative. The Board finds remand for an additional VA examination and report unnecessary because this concerns a claim to reopen a previously denied claim. With such claims, it is the Veteran's responsibility to generate new and material evidence that would warrant the reopening of the claim and the provision of a new compensation examination. See Paralyzed Veterans of America v. Secretary of Veterans Affairs, 345 F.3d 1334, 1341-44 (Fed. Cir. 2003) (upholding validity of 3.159(c)(4)(C)(iii) and finding that, "without the introduction of new and material evidence, VA is not required to provide a medical examination or opinion"). As no new and material evidence has been submitted, the Board will not remand the claim for an additional VA examination. III. The Claim to Service Connection The Veteran asserts that he has a current lower back disorder that was caused by an injury during service. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Where a veteran who served for ninety days or more during a period of war (or during peacetime service after December 31, 1946) develops certain chronic diseases to a degree of 10 percent or more within one year from separation from service, such diseases may be presumed to have been incurred in service even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. See 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309. If there is no evidence of a chronic condition during service or during an applicable presumptive period, then a showing of continuity of symptomatology after service is required to support the claim. The U.S. Court of Appeals for the Federal Circuit recently clarified that the continuity of symptomatology language in § 3.303(b) is limited to the chronic diseases listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may also be granted for disease that is diagnosed after discharge from active service, when the evidence establishes that such disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In this matter, the evidence of record documents that the Veteran has been diagnosed with a lower back disorder. The October 2009 VA examination report notes a diagnosis of lower back strain. The first element of Shedden is therefore satisfied. The second element of Shedden is established by lay evidence of record. The Veteran's STRs are negative for complaints, diagnosis, or treatment for a lower back disorder. Nevertheless, the Veteran contends that he experienced a back injury during service as the result of falling from carrying heavy packs during Marine Corps training, and as the result of martial arts training while in the Marine Corps. As laypersons are competent to attest to observable symptoms, such as the pain and limitation that would accompany a contemporaneous injury, the Veteran's lay descriptions of an in-service injury are of probative value. Layno v. Brown, 6 Vet. App. 465, 469 (1994). What remains to be established is whether the in-service back injury relates to the current lower back strain. The record contains one medical opinion addressing the issue. The opinion is provided by the October 2009 VA examiner. In the report, the examiner indicated a review of the Veteran's claims file, and an in-person examination of the Veteran. The examiner also detailed the Veteran's medical history. With regard to the issue of medical nexus, the examiner challenged one theory of entitlement asserted by the Veteran, that his back disorder is secondary to a service-connected knee disorder. The examiner stated that the two disorders were likely unrelated. However, with regard to the issue of direct service connection, the examiner offered an opinion favorable to the Veteran's claim. The examiner stated that the back disorder "started about the same time" as the knee disorder - i.e., during active service. The examiner stated that the Veteran had a back disorder from falling while carrying a "heavy back pack." The examiner then noted that the disorder worsened "gradually while in service." The Board finds this medical opinion to be of probative value because it corroborates the claim to an in-service injury, and states that the injury in service led to the current back problem. See Bloom v. West, 12 Vet. App. 185, 187 (1999) (the value of a physician's statement is dependent, in part, upon the extent to which it reflects clinical data or other rationale to support the opinion). In sum, the Veteran's STR's are negative for a lower back injury. However, he has indicated in lay statements of record that he injured his back during service. Moreover, the only medical professional of record to address his claim appears to support his theory of entitlement. As such, it cannot be said that a preponderance of the evidence demonstrates that the Veteran's lower back strain does not relate to service. Therefore, the Board finds the evidence to be in equipoise. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. The third Shedden element is satisfied. Because each of the three Shedden elements has been met, service connection for a lower back strain is warranted. IV. The Claims for Increased Rating The Veteran seeks higher disability ratings for his service-connected right knee disorder, and for his service-connected right hand scar. He has been service connected for these disorders since his discharge from service in November 2004. Since then, the right knee disability has been rated as 10 percent disabling, while the hand scar has been rated noncompensable. In December 2007, the Veteran asserted that higher ratings should be assigned. In the April 2008 rating decision on appeal, the RO denied his claims. During the appeal period, the RO assigned a separate 10 percent rating for instability in the right knee, effective June 14, 2012. Nevertheless, the Board will presume that the Veteran continues to maintain entitlement to higher ratings during the appeal period. AB v. Brown, 6 Vet. App. 35, 38 (1993). In this decision, the Board will consider whether higher ratings have been warranted from December 18, 2006 (one year prior to the date of the Veteran's claims for increased rating) at any time during the appeal period. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings); see also 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. Ratings for service-connected disabilities are determined by comparing the symptoms the Veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based as far as practical on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower evaluation will be assigned. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7. Right Knee The Veteran injured his right knee during active duty. Medical evidence of record indicates that he tore his anterior cruciate ligament (ACL) and underwent surgical repair of the disorder. He has been service connected for this disorder since November 2004. Disabilities of the knee are rated under Diagnostic Code (DC) 5256 through DC 5263 of 38 C.F.R. § 4.71a (2013). Diagnostic Code 5256 addresses ankylosis of the knee. Diagnostic Code 5257 addresses recurrent subluxation or lateral instability. Diagnostic Code 5258 addresses dislocated cartilage in the knee manifested by frequent episodes of "locking," pain, and effusion into the joint. Diagnostic Code 5259 addresses the surgical removal of semilunar cartilage. Diagnostic Codes 5260 and 5261 address limitation of motion in the leg. Diagnostic Code 5262 addresses impairment of the tibia and fibula. Diagnostic Code 5263 addresses genu recurvatum. Knee prosthetic replacements are addressed under DC 5055. The Board also notes the relevance here of DCs 5003 and 5010 of 38 C.F.R. § 4.71a. Under DC 5003, traumatic arthritis is to be rated on the basis of limitation of motion under the appropriate diagnostic code for the specific joint involved. When there is some limitation of motion, but which is noncompensable under a limitation-of-motion code, a 10 percent rating may be assigned with involvement of a major joint. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010 (2013). When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. The Board has also reviewed lay statements of record from the Veteran and his employment supervisor asserting pain and limitation associated with the knee disorder. The Board finds these statements of probative value because pain and limitation associated with a knee injury are observable symptoms about which a layperson is competent to offer evidence. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007); see also Layno v. Brown, 6 Vet. App. 465 (1994) (distinguishing between competency ["a legal concept determining whether testimony may be heard and considered"] and credibility ["a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"]). The relevant medical evidence of record consists of VA and private treatment records, and VA compensation examination reports dated in January 2008, October 2009, and June 2012. The January 2008 examination (conducted by QTC Medical Services, Inc.) noted the Veteran's in-service anterior cruciate ligament (ACL) tear, its in-service repair, and the residual internal derangement. The examiner noted the Veteran's complaints of weakness, pain, burning, aching, clicking, cramping, swelling, giving way, lack of endurance, fatigability, and dislocation. On examination, the examiner noted a normal gait, symmetrical leg length, normal feet without signs of abnormal weight bearing, no assistive device, and stable and normal knee ligaments. The examiner noted tenderness, but no stiffness, redness, heat, locking, edema, effusion, weakness, guarding of movement, or subluxation. The examiner noted a right knee range of motion of 140 degrees flexion with 0 degrees extension. The examiner noted some limitation of function due to pain, but indicated that it did not affect the Veteran's range of motion. September 2007 MRI noted "internal screws fixation" evidencing right knee surgery but indicated an "intact" knee joint with "no abnormal bone changes." A January 2008 x-ray associated with the QTC examination noted changes from "cruciate ligament repair" but found no arthritis or acute fractures in the right knee. The impression was "negative" right knee, and that the x-ray indicated the knee was "within normal limits." A May 2008 VA treatment note by the Veteran's treating orthopedic surgeon noted the Veteran's complaints of pain, catching, and popping in the right knee. He complained of instability climbing stairs. The physician noted no limp, full range of motion, no medial or lateral laxity, and no clicking. He did note mild posterior laxity with mild posterior drawer sign, and pain on McMurray's testing. The examiner indicated that the MRI indicated "mild narrowing in the medial joint cartilage" and indicated "probable torn medial meniscus." The record contains a July 2008 letter from the Veteran's employment supervisor, who attests to the Veteran's difficulty working as a seam welder because his knee pain causes problems with climbing on and off machinery. The October 2009 examiner noted the Veteran's recent history of injuring his right knee (torn meniscus) while jogging in August 2007, and undergoing repair surgery in September 2008. The Veteran indicated use of a knee brace at all times, constant pain, giving way, instability, stiffness, weakness, decreased speed, swelling, an inability to run, play with his children, lift heavy weights, climb stairs, and enter and exit his vehicle. But the Veteran did not indicate subluxation, locking, or incoordination. On examination, the examiner noted no signs of abnormal weight bearing, swelling, or tenderness. The examiner noted negative Drawer's and McMurray's tests. The examiner noted some pain after repetitive motion but noted normal range of motion of 110 degrees flexion and 0 degrees extension. The examiner noted no additional limitation due to repetitive motion. The examiner diagnosed the Veteran with right knee strain and status post ACL repair. The examiner noted full muscle strength on lower extremity resistance testing with normal muscle tone without evidence of atrophy. And the examiner noted May 2009 MRI which stated an impression of status post ACL reconstruction. Private treatment records evidence that the Veteran underwent a right "knee scope" in September 2008 for right knee medial meniscus tear, as he indicated to the October 2009 VA examiner. The procedure performed a right knee arthroscopic partial medial meniscectomy. The June 2012 VA examiner noted the Veteran's history of ACL tear and repair and meniscus (semilunar cartilage) tear and repair. The examiner noted the Veteran's complaints of pain, weakness, and swelling. The examiner noted the Veteran's complaints of functional impairment such as an inability to sit or stand for extended periods, an inability to walk more than 15 to 20 feet at a time, an inability to lift more than 10 to 15 pounds at a time, and an inability to squat. The Veteran also reported the constant use of a brace. On examination, the examiner noted range of motion of 95 degrees flexion and 0 degrees extension after three repetitions. The examiner found no objective evidence of painful motion or any other limitation of motion following repetitive testing. The examiner noted full and normal muscle strength in the right leg. The examiner noted no subluxation and a generally stable right knee, but did note slight (1+) medial lateral instability of 0-5 millimeters in the right leg. The examiner also indicated that the semilunar cartilage disorder caused frequent joint pain, swelling, and effusion, but no locking. Finally, the examiner diagnosed the Veteran with residuals of the ACL injury and repair, and with degenerative joint disease. The Board notes that, in rating the service-connected right knee disability, it has considered evidence of the Veteran's meniscus injury and surgery, and his diagnosed right knee arthritis. The June 2012 VA examiner expressly found that these other disorders relate to the Veteran's original service-connected disorder, the ACL tear and repair. Mittleider v. West, 11 Vet. App. 181, 182 (1998). And based on the entirety of the evidence of record, the Board finds two separate ratings warranted for the right knee. First, a 10 percent rating is warranted under DC 5259 for the symptomatic removal of semilunar cartilage. The evidence clearly establishes that the Veteran's meniscus disorder has been symptomatic since the September 16, 2008 surgery. Second, a 10 percent rating is warranted under DC 5257 for slight lateral instability in the right knee. The appropriate effective date is June 14, 2012, the date of the VA compensation examination which noted the instability. The Board finds additional, or higher, ratings unwarranted, however. For an increase under DC 5256, the evidence must show ankylosis. There is no evidence of such in the record here. For an increase under DC 5257, there must be evidence of either moderate or severe recurrent subluxation or lateral instability. The June 2012 VA examiner noted slight (1+) instability. Moreover, that examiner, in addition to other examiners of record, noted no subluxation. For the sole 20 percent rating under DC 5258, the evidence must indicate frequent episodes of pain and effusion, and locking. In this matter, the June 2012 examiner indicated that the Veteran does not experience locking. The maximum authorized rating has been assigned under DC 5259 for the symptoms associated with removal of semilunar cartilage. Under DC 5260, a compensable evaluation is warranted for flexion limited to 45 degrees. The evidence shows that the Veteran's range of motion consistently has been shown at flexion of at least 95 degrees. Under DC 5261, a compensable rating is warranted for extension of 10 degrees. But here, the evidence consistently shows the Veteran's extension at 0 degrees. Further, the evidence of record has consistently shown that any pain or weakness associated with the range of motion testing did not indicate objective evidence of limitation at 45 degrees flexion or 10 degrees extension. See Deluca, supra. For an increased rating under DC 5262, the evidence must show impairment of the tibia and fibula. The Board reviewed no evidence of tibia-fibula impairment. And an increase is not warranted under DC 5263 as the record does not evidence genu recurvatum. In assessing the Veteran's claim for increased rating, the Board considered granting an additional 10 percent rating under DC 5003 for diagnosed arthritis - based on the Veteran's noncompensable limitation of motion under DCs 5260 and 5261, and the June 14, 2012 VA x-ray study which confirmed for the first time the presence of arthritis in the right knee. However, to grant a third 10 percent rating here would constitute impermissible pyramiding under the Code. 38 C.F.R. § 4.14 (2013). In rating knee disorders, separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Hence, in this matter, separate ratings are warranted for symptoms related to semilunar cartilage removal on the one hand, and, on the other hand, symptoms related to instability of the knee joint. VAOPGCPREC 9-98. However, separately evaluating symptoms related to disabled semilunar cartilage, on the one hand, and, on the other hand, evaluating symptoms related to arthritis, would be pyramiding. To separately rate the Veteran under DC 5259 and DC 5003 would be to evaluate separately the same functional impairment, or the same manifestation of a disability - i.e., the Veteran's discomfort and consequent limitation of motion. 38 C.F.R. §§ 4.40, 4.45, and 4.59. This would result in a clear violation of the prohibition on pyramiding. See Lichtenfels v. Derwinski, 1 Vet. App. 484, 488 (1991) (separate ratings warranted for arthritis in the foot and arthritis in the back). If however, there is in the future an increase in the severity of the right knee functional impairment causing a diminution in the range of motion due to the Veteran's service-connected arthritis sufficient to warrant a 20 percent or more evaluation, then an increase under DCs 5003, 5260 or 5261 could be for application, but in that case a separate 10 percent rating under DC 5259 would pose a violation of the prohibition on pyramiding. In sum, two separate 10 percent ratings have been warranted here - a 10 percent rating has been warranted for the meniscus disorder effective September 16, 2008, while a 10 percent rating has been warranted for the instability effective June 14, 2012. The Board notes that this finding will not result in a higher disability rating for the Veteran's right knee disorder. The Veteran has received a 10 percent rating since November 2004, and has received a separate 10 percent rating effective June 14, 2012 (the date of the examination which noted instability). No additional increase in rating is warranted. VAOPGCPREC 9-98 (August 14, 1998); VAOPGCPREC 23-97 (July 1, 1997). Right Hand Scar The evidence of record shows that during active duty a cyst was surgically removed from the Veteran's hand, which caused a scar. He has been service connected for this disorder since November 2004. Scar disabilities are rated under DCs 7800 to 7805 of 38 C.F.R. § 4.118. The criteria for evaluating scars under these codes were revised effective October 23, 2008. The revisions were specifically limited to claims filed on or after October 23, 2008. Here, the Veteran's claim for increased rating was filed in December 2007. Accordingly, the revised schedular rating criteria are not applicable in this decision. The schedular rating criteria in effect prior to October 23, 2008 will be applied. The rating criteria pertaining to scars not on the head, face, or neck, and in effect in December 2007, are found in Diagnostic Codes 7801 through 7805. A 10 percent evaluation is warranted under DC 7801 where a scar, that is not on the head, face, or neck, is deep or limits motion, and is at least 6 square inches in size. A 20 percent rating is warranted under DC 7801 for deep scars exceeding 12 square inches in size. Under DC 7802, a maximum 10 percent evaluation is warranted where a scar, that is not on the head, face, or neck, is superficial, does not cause limitation of motion, and is at least 144 square inches in size. Diagnostic Code 7803 provides a maximum 10 percent rating for scars that are superficial and unstable. Under DC 7804, a maximum 10 percent rating is warranted for scars that are superficial and painful on examination. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. A superficial scar is one not associated with underlying soft tissue damage. Finally, under DC 7805, other scars are to be rated based on limitation of function of the part affected. 38 C.F.R. § 4.118 (2007). The relevant medical evidence of record consists of VA and private treatment records, and the January 2008, October 2009, and June 2012 VA reports. Based on this evidence, the Board finds that a compensable evaluation has been unwarranted during the appeal period. The January 2008 QTC examiner noted the Veteran's complaints of pain. But on examination of the right hand, the examiner found no evidence of a painful scar. Moreover, the examiner described the scar as measuring about 7cm by .5 cm without tenderness, disfigurement, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hypopigmentation, hyperpigmentation, abnormal texture, inflammation, or edema. Further, on examination of the right hand, the examiner found no limitation of function due to the scar. Similarly, the October 2009 VA examiner measured the scar as 1mm by 45mm. The examiner found the scar area to have decreased sensation, but noted the scar as superficial, stable, without pain, redness, inflammation, or keloid formation. Lastly, the June 2012 examiner measured the scar as 4.5cm in length. He stated that the scar was not painful, was not unstable, was not deep, and did not limit function of the hand. Further, the Board has reviewed the private and VA treatment records in the claims file and has found no evidence indicating that the Veteran's right hand scar is deep, unstable, painful on examination, exceeds 144 square inches in size, or limits right hand function in any way. As such, a compensable rating for the right hand scar is not warranted. Extraschedular Consideration The Board must still consider whether the Veteran is entitled to an extra-schedular rating under the provisions of 38 C.F.R. § 3.321(b)(1). See Bagwell v. Brown, 9 Vet. App. 337 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Here, the Board finds that the disability picture presented by the Veteran's right knee and right hand disorders are appropriately contemplated by the rating schedule. As noted earlier, the two 10 percent ratings under 38 C.F.R. § 4.71a apply to the Veteran's right knee disability picture, while the asymptomatic right hand scar is appropriately assigned a noncompensable rating under 38 C.F.R. § 4.118. Indeed, his symptoms are directly contemplated by the schedular criteria. Therefore, referral for consideration of an extraschedular evaluation is not warranted here. Thun. ORDER The Board having determined that new and material evidence has not been presented, reopening of the claim for entitlement to service connection for a neck disorder is denied. Entitlement to service connection for a lower back strain is granted. Prior to June 14, 2012, entitlement to a disability rating in excess of 10 percent, for the Veteran's service-connected right knee disability, is denied. From June 14, 2012, entitlement to ratings in excess of 10 percent for right knee lateral instability, or in excess of 10 percent for residuals of meniscus removal surgery, is denied. Entitlement to a compensable rating for a service-connected right hand scar is denied. REMAND With regard to the Veteran's claim for increased rating for the service-connected residuals of a fracture to his right 5th finger, the Board finds a remand warranted. In July 2012, the RO issued a rating decision in which it reduced the assigned disability rating for this disorder from 10 to 0 percent, effective the June 14, 2012 VA examination. To support its decision, the RO cited findings noted in the report. The Veteran had been rated as 10 percent disabled from November 2004. The July 2012 rating decision reducing the Veteran's disability rating must be addressed by the Board along with the appealed claim for a higher disability rating. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991) (distinguishing between a rating reduction case and a rating increase case). Before doing so, remand is necessary for compliance with the provisions of 38 C.F.R. § 3.105(e). This regulation allows for the reduction in evaluation of a service-connected disability when warranted by the evidence, and after following certain procedural guidelines. The guidelines have not been followed in this matter. Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran with a rating decision proposing the reduction in evaluation for his right 5th finger disorder. The rating decision must be prepared setting forth all material facts and reasons. The Veteran must be notified at his latest address of record of the contemplated action and furnished detailed reasons. The Veteran must be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at the present level. 38 C.F.R. § 3.105(e). 2. After completion of the above, review the record and readjudicate the claim for increased rating for a right 5th finger disorder. If full benefits are not granted, issue a SSOC and afford the Veteran an opportunity to respond. Thereafter, return the case to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs