Citation Nr: 1510264 Decision Date: 03/12/15 Archive Date: 03/24/15 DOCKET NO. 07-03 248A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to compensation under 38 U.S.C.A. § 1151 (West 2014) for post-thoracotomy syndrome. 2. Entitlement to compensation under 38 U.S.C.A. § 1151 for latrogenic pneumothorax. 3. Entitlement to compensation under 38 U.S.C.A. § 1151 for atelatasis. 4. Entitlement to compensation under 38 U.S.C.A. § 1151 for pleurits. 5. Entitlement to compensation under 38 U.S.C.A. § 1151 for abdominal scar; 6. Entitlement to compensation under 38 U.S.C.A. § 1151 for back scar. 7. Entitlement to restoration of a 20 percent rating for right knee bursitis and chondromalacia, currently rated 10 percent disabling. 8. Entitlement to an initial rating of 10 percent for arthroscopy scars, right ankle, currently rated 0 percent disabling from March 30, 2011 to January 18, 2013 and 10 percent from that date. (The issues of entitlement to restoration of a 20 percent rating for non-displaced fracture, fifth metatarsal and right ankle and to an increased rating for non-displaced fracture, fifth metatarsal and right ankle, and entitlement to service connection for left thoracic ganglioneuroma, left upper extremity neuropathy, and degenerative lumbar spine disease, are the subject of a separate Board decision). REPRESENTATION Appellant represented by: Daniel Krasnegor, Attorney at Law ATTORNEY FOR THE BOARD J. Hager, Counsel INTRODUCTION The Veteran served on active duty from August 1990 to October 1997. These matters come before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In August 2010, the RO denied multiple claims for entitlement to compensation under 38 U.S.C.A. § 1151, as indicated on the title page, and also proposed reducing the rating for the Veteran's right knee bursitis with chondromalacia from 20 to 10 percent. In January 2011, the RO reduced the rating for the Veteran's right knee disability from 20 to 10 percent, effective April 1, 2011. In August 2012, the RO granted entitlement to service connection for right ankle scars and assigned an initial noncompensable rating, effective March 30, 2011. In August 2012, the Veteran filed a supplemental claim for an increase in the rating for his right ankle scars, but later that month indicated that he had intended to file a notice of disagreement (NOD) with the initial rating assigned. The Veteran's attorney subsequently clarified that the Veteran did not wish to withdraw his appeal (as opposed to the supplemental claim) and the Board therefore finds that the claim for a higher initial rating for right ankle scars is still on appeal. In March 2013, the RO increased the rating for right ankle scars from 10 to 20 percent, effective January 18, 2013, creating a staged rating as indicated on the title page. The Board notes that the Veteran's November 2014 appointment of individual as claimant's representative (VA Form 21-22a) reflects that the attorney listed on the title page represents him only with regard to the issues listed on the title page, as well as entitlement to service connection for depression for which service connection has been granted. With regard to the five other issues currently on appeal, the Veteran is represented by a veterans service organization. Consequently, these issues must be addressed in a separate Board decision. BVA Directive 8430, § 14(c)(11) (where an appellant has different representatives on different issues, separate decisions will be issued on the matters addressed by each representative). The issues of entitlement to compensation under 38 U.S.C.A. § 1151 for post-thoracotomy syndrome, latrogenic pneumothorax, atelatasis, pleurits, abdominal scar, and back scar, and entitlement to restoration of a 20 percent rating for right knee bursitis and chondromalacia, currently rated 10 percent disabling, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT The evidence is approximately evenly balanced as to whether the Veteran's two right ankle arthroscopy scars are painful. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for an initial rating of 10 percent for right ankle arthropathy scars from March 30, 2011 to January 18, 2013, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION 38 C.F.R. § 4.118, DC 7804 provides that one or two painful or unstable scars warrant a 10 percent evaluation, three or four scars that are unstable or painful warrant a 20 percent evaluation, and five or more scars that are unstable or painful warrant a 30 percent evaluation. The Veteran has been granted a 10 percent rating for his two right ankle arthropathy scars from January 18, 2013, based on the conclusion of the January 2013 VA examiner that these scars were painful. The Veteran's attorney contends that the Veteran is entitled to this 10 percent rating from the March 30, 2011 effective date of the grant of service connection, because the evidence reflects that the Veteran's scar has been painful since that time. There is conflicting evidence on this question. On the one hand, the Veteran has consistently complained of painful scars on examination and in his written statements since March 30, 2011. The Veteran is competent to report this symptomatology. In contrast, the May 2012 VA scars examiner wrote, "objective finding fails to confirm veteran's subjective evaluation regarding two scars being painful." The May 2012 VA examiner did not explain the reasons or process by which he came to this conclusion. Moreover, there is no evidence reflecting that the scar suddenly became painful on the date of the January 2013 VA examination. The evidence is thus approximately evenly balanced as to whether the Veteran's two right ankle arthroscopy scars have been painful since the March 30, 2011 effective date of the grant of service connection for these disabilities. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to an initial rating of 10 percent for right ankle arthroscopy scars is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. Moreover, because this is precisely the relief requested by the Veteran's attorney in connection with this claim, further discussion of the Veterans Claims Assistance Act of 2000 or whether any higher initial rating is warranted is unnecessary. Cf. AB v. Brown, 6 Vet. App. 35, 39 (1993) (a veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise) (emphasis added), ORDER Entitlement to an initial rating of 10 percent for arthroscopy scars, right ankle, from March 30, 2011 to January 18, 2013, is granted, subject to controlling regulations governing the payment of monetary awards. REMAND As noted by the Veteran's attorney in his December 2014 submission, the Veteran submitted a medical opinion and additional evidence after the most recent, October 2013 supplemental statement of the case (SSOC) was issued and the case was certified to the Board. The attorney requested that these claims be remanded for initial AOJ consideration of this evidence. As the Veteran has the right to initial AOJ consideration of the evidence he has submitted, the Board will grant the attorney's request for remand of the section 1151 claims. See 38 C.F.R. §§ 19.31, 19.37. In January 2008, the Veteran underwent right knee surgery and requested a temporary total rating based on surgical or other treatment necessitating convalescence. He also requested an increased rating for his right knee disability, then rated 10 percent. In April 2008, the RO granted the temporary total rating and increased the rating for the right knee from 10 to 20 percent, effective after the convalescence period. In January 2011, the RO reduced the rating from 20 to 10 percent, effective April 1, 2011. The basis of the reduction was an increase in range of motion, which warranted a lower rating under 38 C.F.R. § 4.71a, DC 5261, applicable to limitation of extension of the leg. However, as noted by the Veteran's attorney in his December 2014 submission, the record contains evidence, including a November 2012 VA treatment note, which indicates a possible meniscal tear with pain and locking. Under 38 C.F.R. § 4.71a, DC 5258, dislocated semilunar cartilage, i.e., a torn meniscus, warrants a 20 percent rating if there are frequent episodes of locking, pain, and effusion into the joint. It does not appear that the AOJ considered whether the reduction was proper in light of the possibility of such a rating, and a remand is therefore warranted for initial AOJ consideration of this theory of entitlement. Should the RO feel that a retrospective medical examination or opinion would assist in making this determination, such an examination should be scheduled. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008). The Board notes that the Veteran's attorney has also requested a new VA examination as to the current severity of the Veteran's right knee disability. However, the issue of entitlement to an increased rating for right knee bursitis and chondromalacia is not before the Board on this appeal. This matter comes before the Board on appeal from a January 2011 rating decision in which the RO reduced the rating for the Veteran's right knee disability from 20 to 10 percent. In March 2011, the Veteran filed a notice of disagreement in which he wrote, "Evaluation of bursitis, right knee with chondromalacia, which was reduced from 20 percent to 10 percent. I feel this condition should warrant the same percentage and should be reviewed again." In response to the March 2013 statement of the case, in which the AOJ characterized the issue "evaluation of right knee bursitis and chondromalacia, currently evaluated as 10 percent disabling," the Veteran's attorney submitted a May 2013 letter accepted as a substantive appeal in lieu of a VA Form 9. In that document, with regard to the right knee disability, the Veteran's attorney referenced only "whether the rating reduction for a right knee disability is proper." Moreover, the Veteran's attorney has continued to characterize the issue in this manner, including most recently in the December 2014 submission, in which he again characterized the issue as "rating reduction right knee." As the appeal arises from disagreement with the reduction of the rating from 20 to 10 percent and the notice of disagreement and substantive appeal specified that this was the issue on appeal rather than an increased rating, a remand for an examination to determine the current severity of the Veteran's right knee disability (as opposed to a retrospective examination or opinion to assist in determining whether the reduction was proper) is unnecessary, because the current severity of the Veteran's right knee disability is not at issue. Accordingly, the claims for entitlement to compensation under 38 U.S.C.A. § 1151 for post-thoracotomy syndrome, latrogenic pneumothorax, atelatasis, pleurits, abdominal scar, and back scar, and entitlement to restoration of a 20 percent rating for right knee bursitis and chondromalacia, currently rated 10 percent disabling, are REMANDED for the following action: 1. Consider the additional evidence and readjudicate the claims for entitlement to compensation pursuant to 38 U.S.C.A. § 1151 for post-thoracotomy syndrome, latrogenic pneumothorax, atelatasis, pleurits, abdominal scar, and back scar. 2. Readjudicate the issue of entitlement to restoration of a 20 percent rating for right knee bursitis and chondromalacia, to include consideration of whether a 20 percent rating under warranted under DC 5258 or any other potentially applicable diagnostic code. If the AOJ finds that a retrospective VA examination or opinion is warranted such an examination should be scheduled or opinion obtained. 3. If any benefit sought on appeal remains denied, furnish the Veteran and his attorney a SSOC return the case to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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 2014). ______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs