Citation Nr: 1335553 Decision Date: 11/04/13 Archive Date: 11/13/13 DOCKET NO. 09-48 262 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for right knee scars. 2. Entitlement to an initial rating in excess of 10 percent for arthritis, residual right knee injury, status post surgery. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Fleming, Counsel INTRODUCTION The Veteran had active military service from October 1968 to December 1988. This matter initially came 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 Atlanta, Georgia, in which the RO granted service connection for arthritis, residual right knee injury, status post surgery, and awarded an initial noncompensable disability rating. In an October 2008 rating decision, the RO granted a higher initial rating of 10 percent, effective as of the date of claim. The Board remanded the Veteran's case in March 2012 for further evidentiary development and adjudication. In the remand, the Board instructed the agency of original jurisdiction (AOJ) to provide the Veteran with VA examination, addressing both the orthopedic problems with the right knee and the scars resulting from right knee surgery, and then re-adjudicate the claim. The AOJ scheduled the Veteran for VA examinations, which were conducted in June 2012. The AOJ then issued the Veteran a supplemental statement of the case in October 2012 in which it again denied the claim for a higher initial rating for his arthritis, residual right knee injury, status post surgery. In addition, in an October 2012 rating decision, the AOJ granted a separate 10 percent rating for right knee scars. Thus, as to the issue decided herein, there has been compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). As the appeal of the Veteran's claims for initial ratings in excess of 10 percent for right knee scars and for arthritis, residual right knee injury, status post surgery, emanate from his disagreement with the initial ratings assigned following the grant of service connection, the Board has characterized the claims as for higher initial ratings in accordance with Fenderson v. West, 12 Vet. App. 119, 126 (1999). The issues of entitlement to service connection for a sensory neuropathy of the distal branch of the right femoral nerve and for a left knee disorder as secondary to the Veteran's right knee disorder have been raised by the record (see June 2012 VA examination), but have not been adjudicated by the AOJ. Therefore, the Board does not have jurisdiction over these issues, and they are thus referred to the AOJ for appropriate action. The decision below addresses the Veteran's claim for an initial rating in excess of 10 percent for right knee scars. The issue of an initial rating in excess of 10 percent for arthritis, residual right knee injury, status post surgery, is addressed in the remand that follows the decision. FINDING OF FACT The Veteran has two right knee scars; one is tender to palpation and measures 7.0 square centimeters in area; the other is non-tender and measures 0.5 square centimeters in area; neither scar is ulcerated, adherent to the underlying tissue, deep, or unstable; and neither scar causes any limitation of function. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for right knee scars have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.655, 4.1, 4.7, 4.27, 4.118, Diagnostic Codes 7801, 7802, 7803, 7804, 7805 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). (The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008. See 73 Fed. Reg. 23,353-56 (Apr. 30, 2008). The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008. The amendments, among other things, removed the notice provision requiring VA to request the claimant to provide any evidence in the claimant's possession that pertains to the claim. See 38 C.F.R. § 3.159(b)(1).) The Board finds that all notification and development action needed to render a decision on the claim decided herein has been accomplished. In this respect, through December 2007 and July 2008 notice letters, the RO notified the Veteran of the information and evidence needed to substantiate his claim. Thereafter, the Veteran was afforded the opportunity to respond. In addition, the Veteran was provided notice concerning the assignment of rating criteria and effective dates via the December 2007 and July 2008 notice letters. Hence, the Board finds that the Veteran has received notice of the information and evidence needed to substantiate his claim, and has been afforded ample opportunity to submit such information and evidence. The Board also finds that the December 2007 and July 2008 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)). In the letters, the RO notified the Veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. The RO also requested that the Veteran identify any medical providers from whom he wanted the RO to obtain and consider evidence. 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. See Pelegrini v. Principi, 18 Vet. App. 112, 121 (2004). See also Notice and Assistance Requirements and Technical Correction, 73 Fed. Reg. 23,353 (Apr. 30, 2008) (codified at 38 C.F.R. § 3.159) (removing the prior requirement that VA specifically ask the claimant to provide any pertinent evidence in his possession). These requirements were met by the aforementioned December 2007 and July 2008 notice letters. The Board thus finds that "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. In this regard, the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). In addition, the Veteran was given the opportunity to respond following the December 2007 and July 2008 notice letters. The Board notes that VCAA notice is not required with respect to every aspect of a claim raised by a claimant. If, for example, a Veteran files a claim for service connection for a disability, the claim is granted, and he files an appeal with respect to the rating assigned and/or effective date of the award, VA is not required to provide a new VCAA notice with respect to the matter of his entitlement to a higher rating and/or an earlier effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007) (holding that when a claim for service connection has been proven, the purpose of § 5103(a) has been satisfied, and notice under its provisions has been satisfied). The Board notes that after an appellant has filed a notice of disagreement as to the initial effective date or disability rating assigned-thereby initiating the appellate process-different, and in many respects, more detailed notice obligations arise, the requirements of which are set forth in 38 U.S.C.A. §§ 7105(d) and 5103A. Id. Here, the Veteran's claim for a higher initial rating falls within this pattern. Thus, no additional VCAA notice was required with respect to the claim decided herein. Furthermore, as to the initial rating claim, the Board finds the more detailed notice requirements set forth in 38 U.S.C.A. §§ 7105(d) and 5103A have been met. See Dingess/Hartman, supra. The Board also points out that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim decided herein. The Veteran was provided VA examination in June 2012; report of that examination has been associated with the claims file. 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). As noted below, the Board finds that the VA examination obtained in this case is adequate, as it is predicated on consideration of all of the pertinent evidence of record, to include the statements of the Veteran, and reflects that the examiner conducted full examination of the Veteran, including information necessary to apply the pertinent rating criteria. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the claim decided herein has been met. 38 C.F.R. § 3.159(c)(4). The Veteran has further been given the opportunity to submit evidence, and he has provided written argument in support of his appeal. The Veteran has not identified, and the record does not indicate, existing records pertinent to the claim decided herein that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required by 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis The Veteran contends that his right knee scars are more disabling than reflected by the initial 10 percent rating assigned. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is the propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" (assignment of different ratings for distinct periods of time, based on the facts found) is required. See Fenderson, 12 Vet. App. at 126. Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2013). The Veteran's service-connected right knee scars have been rated as 10 percent disabling under Diagnostic Code 7804, governing scars not of the head, face, or neck. Under that Diagnostic Code, one or two scars that are unstable or painful warrant a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7804 (2013). Three or four scars that are unstable or painful warrant a 20 percent rating. Id. Five or more scars that are unstable or painful warrant a 30 percent rating. Id. Relevant medical evidence consists of a VA examination conducted in June 2012. Report of the June 2012 VA examination reflects that the examiner reviewed the Veteran's claims file and elicited a history from the Veteran as well as conducting a physical examination. The examiner noted that the Veteran had two scars on his right knee secondary to surgeries he has had to address right knee problems. The examiner noted that one scar was painful and measured 7.0 square centimeters in area. The second scar was found to be non-tender and measured 0.5 square centimeters. Neither scar was found to be unstable, although the larger scar was noted to be non-linear. Both scars were found to be superficial. The examiner found that neither scar caused any limitation of motion of the right knee. In this case, the Board notes that the Veteran was found at the June 2012 VA examination to have one tender scar, and one non-tender scar, on the right knee. Thus, a 10 percent rating is warranted under Diagnostic Code 7804, governing painful scars. This is so for the entirety of the claim period. The Board does not find, however, that a rating higher than 10 percent is warranted for the Veteran's postoperative right knee scars at any time during the claim period. In this connection, the Board notes that the scars have been found to measure no more than 7.5 square centimeters in total and to be otherwise asymptomatic, with no underlying soft tissue damage or instability noted in either of the scars. Both scars have been found to be superficial. Thus, a separate rating under Diagnostic Code 7801 or 7802 is not warranted. See 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802 (2013). Furthermore, the Board has considered ratings under Diagnostic Code 7805, which governs limitation of the part affected. However, in this case, the June 2012 VA examiner found the scars to have no effect on motion of the right knee. Further, to the extent that the Veteran experiences limited motion of the knee, he is being separately compensated for limitation of motion of the right knee. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). As the Veteran's symptoms of limitation of motion of the right knee are evaluated as part of his service-connected arthritis, residual right knee injury, status post surgery, discussed in the Remand below, to evaluate the same symptoms under any other Diagnostic Code would be pyramiding, which is prohibited by 38 C.F.R. § 4.14 (2013). See id. The Board has considered the Veteran's and his representative's contentions with regard to his claim for a higher rating for his service-connected right knee scars. Although the Board does not doubt the sincerity of the Veteran's belief that his right knee scars are more severely disabling than reflected in the current rating, as a lay person without the appropriate medical training or expertise, he simply is not competent to provide a probative opinion on a medical matter, such as the severity of a current disability as evaluated in the context of the rating criteria. See Bostain v. West, 11 Vet. App. 124, 127 (1998). The statements from the Veteran clearly articulate the symptoms and troubles he experiences; however, even with consideration of those problems, a rating higher than that already assigned is not warranted under the relevant criteria. In exceptional cases, where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director of the Compensation and Pension Service is authorized to approve an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to service-connected 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 (2013). The United States Court of Appeals for Veterans Claims (Court) has held that the determination of whether a claimant is entitled to an extra-schedular rating is a three-step inquiry. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). The first step is to determine whether the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. If so, the second step is to determine whether the Veteran's exceptional disability picture exhibits other related factors, such as marked interference with employment or frequent periods of hospitalization. If the first two steps have been satisfied, the third step is to refer the claim to the under Secretary for Benefits or the Director of the Compensation and Pension Service for determination of whether an extra-schedular rating is warranted. The above determination is based upon consideration of applicable rating provisions. It should also be pointed out that there is no showing that the Veteran's right knee scars have reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2013). In that connection, the Board finds that the symptoms of the Veteran's disability have been accurately reflected by the schedular criteria. Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral is not warranted for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating. See Thun, 22 Vet. App. at 115-16. For all the foregoing reasons, the Board finds, for the entirety of the appeal period, the Veteran's service-connected right knee scars warrant no more than the 10 percent disability rating initially assigned. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.27, 4.118, Diagnostic Code 7804 (2013). In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a higher rating, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). ORDER Entitlement to an initial rating in excess of 10 percent for right knee scars is denied. REMAND The Board finds that further development is necessary before a decision can be reached on the merits of the Veteran's claim for entitlement to an initial rating in excess of 10 percent for his service-connected arthritis, residual right knee injury, status post surgery. At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2013). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, the law and regulations define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The record reflects that the Veteran underwent VA examination most recently in June 2012 to assess the current severity of his right knee disorder. Report of that examination reflects that the Veteran complained of pain in the right knee, as well as some restriction of his range of motion. He reported using over-the-counter pain medication and stated that he wrapped the knee in a blanket to "help out" with the pain. The examiner stated that he experienced buckling of the knee on occasion and had to be careful not to spend too much time on the knee. He stated that he continued to work but had to do much of his work sitting down. The examiner noted that the Veteran reported no locking or giving way of the knee, but reported that he had pain in the knee to the point where he could not bear having anything lean on the joint or put pressure on it. He also reported that he experienced flare-ups in the knee with cold or rainy weather that increased the pain and aching in the right knee. Range-of-motion testing revealed flexion to 60 degrees, with pain beginning at 50 degrees, and extension to 0 degrees without pain. Repetitive motion was noted to cause weakness, fatigability, incoordination, and pain, although no additional limits on range of motion were noted. Tenderness to palpation to the knee was noted, although motor strength and muscle testing were normal, and no subluxation or dislocation of the knee joint was noted. The Veteran has stated on multiple occasions, including in his December 2009 VA Form 9, that he experiences flare-ups that increase his right knee pain and other symptomatology to the point that he sometimes has to leave work due to the "severe pain." In addition, the Veteran's representative, in an August 2013 informal hearing presentation, contended that the June 2012 VA examiner did not address the increase in severity of the Veteran's right knee symptomatology when he experiences flare-ups. The Board agrees. The Board notes that where the record does not adequately reveal the current state of the claimant's disability, the fulfillment of the statutory duty to assist requires a thorough and contemporaneous medical examination. See Allday v. Brown, 7 Vet. App. 517, 526 (1995); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (where the appellant complained of increased hearing loss two years after his last audiology examination, VA should have scheduled the appellant for another examination). In this case, the Board notes that the examiner properly conducted an evaluation of the Veteran's physical condition at the time of the June 2012 VA examination but looks in particular to statements made by the Veteran, via his representative, in the August 2013 informal hearing presentation, in which he contended that his right knee disorder has worsened since that VA examination. In addition, the Board finds persuasive the representative's contention that the Veteran's right knee should be examined during an active stage, or flare-up, of symptomatology. The Board thus finds that in light of the above, another VA examination is needed to provide current findings with respect to the Veteran's service-connected arthritis, residual right knee injury, status post surgery. In sum, a remand is required to have an examiner supplement the record with a report regarding the current severity of the Veteran's disability. See 38 U.S.C.A. § 5103A. Specifically, the VA medical examiner must conduct range-of-motion testing of the Veteran's right knee, addressing the DeLuca requirements, including specific findings pertaining to loss of range of motion in the Veteran's right knee due to repetitive motion. The examiner must identify, in the context of these findings, at what point pain begins in each range of motion and must discuss the presence and extent of the Veteran's current functional impairment due to his service-connected right knee disability. The Board notes that the Veteran's right knee disorder may have active and inactive stages. It is essential to attempt to schedule the Veteran for an examination of his right knee disorder during an active stage. See Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994). In his December 2009 VA Form 9, the Veteran testified that his right knee disorder is worse with weather changes, including rainy weather. It would likely be difficult to schedule an examination in advance of these circumstances. However, the Veteran also stated that flare-ups usually occur during cold weather. Thus, the VA examination should be conducted during the winter months. In view of the foregoing, the case is REMANDED for the following action: 1. The Veteran must be scheduled for a VA examination during an active stage, if possible (the examination should be scheduled during the winter months.) The Veteran must be notified that failure to report to any scheduled examination, without good cause, could result in a denial of his claim. See 38 C.F.R. § 3.655(b) (2013). Orthopedic examination-The examiner must report range of flexion and extension in the right knee (in degrees). Clinical findings must also include whether, during the examination, there is objective evidence of pain on motion (if pain on motion is present, the examiner must indicate at which point pain begins), weakness, excess fatigability, and/or incoordination associated with the right knee; and whether, and to what extent, the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups or with repeated use of the right knee. The examiner must express such functional losses in terms of additional degrees of limited motion (beyond that shown clinically). The examiner must specifically discuss the increase in the level of severity of symptomatology the Veteran experiences during a flare-up of his right knee disorder. Note: To properly evaluate any functional loss due to pain, C&P examiners, as per C&P Service policy, should at the very least undertake repetitive testing (to include at least three repetitions) of the range of motion of the right knee, if feasible. See VA Fast Letter 06-25 (November 29, 2006). The entire claims file, including a copy of this remand, must be made available to and reviewed by each examiner designated to examine the Veteran. All appropriate tests and studies must be accomplished, and all clinical findings must be reported in detail. 2. The adjudicator must ensure that the examination report complies with this remand and the questions presented in the examination request. If any report is deficient, it must be returned to the examiner for necessary corrective action, as appropriate. 3. After completing the requested actions and any additional notification and/or development deemed warranted, the claim on appeal must be re-adjudicated in light of all pertinent evidence and legal authority. If any benefit sought is not granted, the Veteran must be furnished a supplemental statement of the case (SSOC) and afforded the appropriate time period for response before the claims file is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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. 2013). ______________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs