Citation Nr: 1514576	
Decision Date: 04/03/15    Archive Date: 04/09/15

DOCKET NO.  03-25 024a			)	DATE
						)
						)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1. Entitlement to a disability rating in excess of 30 percent for a left knee disability, from January 18, 2008.

2. Entitlement to an inial compensable rating for a surgical scar of the left knee.  


REPRESENTATION

Appellant represented by:	Daniel G. Krasnegor, Attorney at Law


INTRODUCTION

The Veteran had active service from August 1978 to November 1991.

These matters come before the Board of Veterans' Appeals (Board) on appeal from August 2000 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which, in pertinent part, continued a 10 percent rating for the Veteran's left knee disability.  Thereafter, the jurisdiction was transferred to the RO in Atlanta, Georgia.  The Veteran filed a notice of disagreement in September 2001.  In May 2002, the Veteran wrote a letter to the RO indicating that she sought an increased rating for her knee condition.  In a December 2002 rating decision, the RO increased the Veteran's left knee disability to 20 percent effective May 14, 2002.  

In July 2006, the Board remanded the Veteran's claim for increased rating for the left knee disability.  In January 2009, the Board remanded the issue for additional development.  In December 2010, the Board denied a disability rating in excess of 10 percent for the Veteran's left knee disability from January 20, 1999 to May 13, 2002, and denied a rating in excess of 20 percent from May 14, 2002.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court), which, by an August 2011 order, granted a Joint Motion for Partial Remand vacating the Board's December 2010 decision and remanding the case for compliance with the terms of the Joint Motion.  

In June 2012, the Board granted a 30 percent disability rating for a left knee disability from January 20, 1999, and remanded the claim for an increased disability rating for a left knee disability in excess of 30 percent from January 18, 2008, and entitlement to a compensable rating for a left knee surgical scar for additional development.  In a July 2012 rating decision, the RO effectuated the Board's decision by assigning a 30 percent rating for left patella lateral subluxation, effective January 20, 1999.  The claim has now been returned to the Board.  

This appeal was processed using the VBMS paperless claims processing system.  Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record.  


FINDINGS OF FACT

1. From January 18, 2008, the Veteran's left knee disability resulted in reduced range of motion that included extension to 0 degrees and flexion to no less than 100 degrees with symptoms of weakened movement, pain, and disturbances of locomotion; but was not productive of locking; ankylosis, subluxation, impairment of the tibia or fibula, genu recurvatum, dislocation, tear of the meniscus or removal or the semilunar cartilage.

2.  For the entire appeal period, the Veteran's residual of a left knee surgical scar is stable, superficial, not painful on examination, covers an area less than 39 square centimeters, and does not cause any functional limitation or limitation of motion of the knee.  


CONCLUSIONS OF LAW

1.  From January 18, 2008, the criteria for entitlement to a rating in excess of 30 percent for a left knee disability have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.7, 4.71a, Diagnostic Code 5003, 5257, 5260, 5261 (2014).

2.  For the entire appeal period, the criteria for an initial compensable rating for residuals of a left knee surgical scar have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.118, Diagnostic Code 7801, 7802, 7804, 7805 (2014). 


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I. Due Process Considerations

The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2014).  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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1).

In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include (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.  

In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits.

In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

With respect to the issue of a higher initial rating for the left knee disability, the Veteran was sent letters in July 2002 and July 2006 that fully addressed all notice elements for an increased rating.  The letters provided information as to what evidence was required to substantiate her increased rating claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also provided notice of the evidence and information necessary to establish an effective date in accordance with Dingess/Hartman, supra.  Accordingly, no further development is required with respect to the duty to notify.  

In a September 2014 RO decision, the AOJ assigned a separate noncompensable ratings for left knee scar, effective March 19, 2012. As higher ratings for this disability may be assigned and as the claimant is presumed to seek the maximum available benefit, the claims for a higher initial rating remains on appeal. 

Relevant to the duty to assist, the Veteran's service treatment records as well as post-service VA treatment records, VA examination reports, and lay statements have been obtained and considered.  Additionally, the Board notes that neither the Veteran nor her representative has identified any additional, outstanding records that have not been requested or obtained.  Thus, the Board finds that no additional AOJ action to further develop the record in connection with the claim, prior to appellate consideration, is required.

The Veteran was afforded VA examinations in, February 2008, October 2012, January 2014 and May 2014.  As combined, the reports of these examinations reflect that the examiners reviewed the Veteran's past medical history, recorded her current complaints, conducted appropriate physical examinations, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record. The Veteran has also not alleged a worsening of her service-connected left knee disability and residual scar since the May 2014 VA examination.  The Board, therefore, concludes that these examination reports are adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and her representative have not contended otherwise.  

Thus, the Board finds that VA has fully satisfied the duty to assist.  In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose with respect to her claim for an increased rating of her service-connected left knee disability and residual scar.  See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided).  VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding.  Therefore, she will not be prejudiced as a result of the Board proceeding to the merits of her increased rating claim.

II. Increased Ratings 

Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3.

A veteran's entire history is to be considered 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). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The following analysis is therefore undertaken with the possibility that "staged rating" (assignment of different ratings may be warranted for distinct periods of time, based on the facts found) may be warranted.

 Standard range of knee motion is from zero degrees (on extension) to 140 degrees (on flexion). See 38 C.F.R. § 4.71, Plate II. 

The Board notes that, when evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996).

A. Left Knee Disability from January 18, 2008

The Veteran seeks an evaluation in excess of 30 percent for her left knee disability from January 18, 2008.  Historically, the she has been rated under two different diagnostic codes since service connection was established in 1992.  At that time, her level of disability was based upon limitation of flexion (DC 5260), however, since 2002, she has been consistently rated under DC 5257 for other impairment of the knee: recurrent subluxation or lateral instability.  She has never received simultaneous compensation under both codes.

During its review of this appeal, the Board will consider whether the Veteran is entitled to separate ratings for the knee under the provisions of 39 C.F.R. §4.71a, DCs 5256 through 5263 which apply to the knee and leg.  

The evidence of record since January 17, 2008, is briefly summarized.

When examined by VA in January 2008, the Veteran's left knee history was reviewed; recurrent injuries in service and the 1991 left-knee realignment surgery were noted.  A summary of current symptoms included pain, stiffness, weakness, without deformity, giving way or instability.  Reported by the Veteran was decreased speed of joint motion, but no episodes of subluxation or dislocation.  Locking episodes occurred daily or more often, with no effusions but with tenderness and swelling.  Flare-ups were described as severe, weekly, and of 1 to 2 days duration.  Precipitating factors for the flare-ups include weather changes, prolonged standing, and walking.  Alleviating factors include elevation, tramadol, and elevation of the knee.  On physical examination, she could stand for 15-30 minutes and was able to walk one-quarter mile. Corrective appliances were used and included corrective shoes, orthotic insert, cane and a brace, all which were always used 

The examiner's impression of the effects of flares on LOM (limitation of motion) or other functional impairment was that it was significant.  Upon physical examination, the weigh bearing joint was described as affected.  Her gait was normal.  There was no evidence of abnormal weight bearing, or loss of bone.  Findings on examination included crepitus, guarding of movement, and bumps consistent with Osgood-Schlatter's disease (for which service connection has not been alleged nor granted).  While crepitation was noted, there were no clicks or snaps and no mass behind the knee, no grinding, no instability, no patellar abnormality, no meniscus abnormality, no abnormal tendons or bursae, and no other observable abnormalities.  

Range of motion with active motion testing showed objective evidence of pain with active motion on the left side.  Left flexion was from 0 to 140 degrees.  Left knee extension was 0 and described as normal.  There was objective evidence of pain following repetitive motion but there were no additional limitations after three repetitions of range of motion.  No joint arthritis was identified.  X-ray of the left knee showed that the bony structures were normal with no signs of fracture or dislocation.  The joint space was normal and the soft tissues were unremarkable.  

In September 2012, the Veteran was seen with complaints of moderate left knee pain which were made to her mental health examiner. In February 2013, she claimed that she continued to experience popping, swelling, and giving away of the left knee. The VA examiner recorded good range of motion and a healed scar. The Veteran asked for a knee brace and she was instructed to continue to current regiment plan.  

In January 2014, the Veteran was provided an in-person examination.  It was observed that she had arthroscopic surgery on her left knee with residual scar.  The Veteran reported that flare-ups impact the function of the knee and "describes the impact as she has leg cramps, also in [her] ankles [she] has swelling, pain and [she] also put ice on [her] knee, heat, [she] wears a knee and foot brace and she elevate[s] [her] legs and knees."  Range of motion studies showed the following: Left knee flexion ends at 135 degrees and there was no objective evidence of painful motion at 135 degrees.  Limitation of left knee extension and pain on motion were not demonstrated.  Repetitive-use testing with 3 repetitions were performed on the left knee and post-test flexion ended at 135 degrees.  Limitation of left knee extension and pain on motion were not demonstrated after repetitive-use testing.  It was noted that the Veteran had some functional loss and/or functional impairment of the knee and lower leg and the contributing factors of disability were listed as less movement than normal and pain on movement.  There was no pain on palpation of the left knee.  

Muscle strength testing was as follows:  5/5 Normal strength for left knee flexion; 5/5 Normal strength for left knee extension.  All joint stability tests showed normal results and there was no evidence or history of recurrent patellar subluxation/dislocation.  It was recorded that the Veteran did not have "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, any other tibial and/or fibular impairment, or a meniscal condition.  Her other symptoms were described as locking, pain, popping, and swelling in the left knee.  Her use of a brace and cane was noted.  The functional impact of her disability as it affected her ability to work is difficulty running, squatting, and walking for long during flare ups.

The Veteran's left knee was x-rayed and result showed no fracture, subluxation, or other significant bone, joint or soft tissue abnormality.  The impression was negative left knee.  

In May 2014, VA provided the Veteran with an in-person examination.  The record was reviewed, and previous diagnoses associated with the left knee were recorded as: knee strain, chondromalacia, and degenerative changes knees.  The Veteran reported swelling in her knee with weather changes and that the knee locked up with activities.  She also said that her knee pain is approximately 7/10 and that the Tylenol and Flexeril she takes for her back and also helps her knee.  She said that her knee is weak when she applies weight, she uses a knee brace constantly for stability and she elevates her knee and uses ice which helps with the swelling.

The Veteran claims that flare-ups impact the function of the knee and/or lower leg.  Range of motion studies showed the following: Left knee flexion ends at 100 degrees and there was no objective evidence of painful motion.  Limitation of left knee extension and pain on motion were not demonstrated.  Repetitive-use testing with 3 repetitions were performed on the left knee and post-test flexion ended at 100 percent.  Limitation of left knee extension and pain on motion were not demonstrated after repetitive-use testing.  The Veteran had some functional loss and/or functional impairment of the knee and lower leg and the contributing factors of disability were listed as weakened movement, pain on movement, and disturbance of locomotion.  There was no pain on palpation of the left knee.  Muscle strength testing was as follows:  4/5 Active movement against some resistance for left knee flexion; 4/5 Active movement against some resistance for left knee extension. All joint stability tests showed normal results and there was no evidence or history of recurrent patellar subluxation/dislocation.  The surgical scar on the left knee was measured as 8cm x 1.5cm and was not painful or unstable.  Imaging of the knee was preformed and degenerative or traumatic arthritis was documented.  There was no evidence of acute fractures, patellar subluxations, or dislocations.  There was slight spurring of the bilateral tibial spines.  The bone mineralization and bony alignment were within normal limits. Small enthesophytes were observed at the insertion of the bilateral quadriceps and patellar tendons on the patella and right tibial tuberosity.  There is no abnormal soft tissue swelling or radiopaque foreign body present.  The impression was mild degenerative change of the knees and the examiner found that the left knee disability did not impact her ability to work.  


Analysis

VA Schedule of ratings -musculoskeletal system, particularly the knee, is found at 38 C.F.R. §4.71a, diagnostic codes 5256 - 5263. 

* Under Diagnostic Code 5260, a 10 percent is warranted where flexion was limited to 45 degrees. 
* A rating of 20 percent is warranted where flexion was limited to 30 degrees and a rating of 30 percent is warranted were flexion was limited to 15 degrees. 38 C.F.R. § 4.71a.  

* Under Diagnostic Code 5261, a zero rating is warranted where extension is limited to 5 degrees. 
* A 10 percent rating is warranted where extension was limited to 10 degrees and a 20 percent rating is warranted where extension was limited to 15 degrees. 
* A rating of 30 percent is warranted where extension was limited to 20 degrees while a 40 percent rating is warranted where extension was limited to 30 degrees. 
* A 50 percent is warranted where extension was limited to 45 degrees. 38 C.F.R. § 4.71a. 

The VA General Counsel has held that separate ratings under 38 C.F.R. § 4.71a, Diagnostic Code 5260 (limitation of flexion of the leg) and Diagnostic Code 5261 (limitation of extension of the leg) may be assigned for disability of the same joint. See VAOPGCPREC 9-2004; 69 Fed. Reg. 59,990 (2004).  

As regards limitation of motion under Diagnostic Codes 5260 and 5261, the evidence shows that the Veteran's service-connected left knee disability was manifested by extension to zero degrees and flexion to 140 degrees before and after repetitive testing in January 2008. Such findings do not support the minimum, compensable rating under either diagnostic code. In addition, the January 2008 X-ray found the Veteran's left knee to be normal.  Recorded findings in January 2014 are very nearly the same.  Extension to zero degrees and flexion to 135 degrees without diminished results after repetitive testing.  The examiner noted functional loss of the knee, to include less movement than normal and pain on movement, but the recorded findings after repeated testing were identical to first ROM test.  In May 2014, the results showed that extension was to zero degrees and flexion was to 100 degrees without diminished results after repetitive testing.  A loss of extension was not demonstrated after repetitive testing in any of the examinations.  X-ray of the left knee at each VA examination demonstrated normal findings.  

VA may consider any demonstrated functional loss attributable to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, in conjunction with criteria under the rating formula. See 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 204-7; Johnson, 9 Vet. App. 7.  Pain itself does not constitute functional loss, and painful motion does not constitute limited motion for the purposes of rating under Diagnostic Codes pertaining to limitation of motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Pain must affect the ability to perform normal working movements with normal excursion, strength, speed, coordination, or endurance in order to constitute functional loss. Id. In this regard, the Board recognizes that during each VA examination, the Veteran reported knee pain and there was objective evidence of pain was found on range of motion testing but without additional limitation of motion. Nonetheless, given the extent of left knee motion demonstrated by the Veteran at each VA examination, the overall level of disability demonstrated by the Veteran is not commensurate to a loss of flexion to a compensable degree even after taking reported pain into consideration.  Moreover, to the extent that pain was reported by the Veteran after repetitive motion testing at each VA examination, the VA examiner noted that the Veteran did not demonstrate any further loss of motion or function due to such symptoms.  In view of the foregoing, even after taking the factors identified in DeLuca into consideration, the Board finds that, for the period under consideration, a rating in excess of 30 percent cannot be granted for the left knee on the basis of limited motion.  As no limitation of extension, even upon repetitive testing, was demonstrated, a separate rating based upon loss of extension is not warranted.  

Diagnostic Code 5256 provides various rating levels for ankylosis of the knee.  Dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint warrants a 20 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5258.  Removal of the semilunar cartilage, symptomatic receives a 10 percent rating.  Impairment of the tibia and fibula is compensated under Diagnostic Code 5262, and Genu recurvatum is rated under Diagnostic Code 5263.  

The Board also finds that no other diagnostic code provides a basis for any higher or alternative ratings for the left knee after January 18, 2008.  There are no objective medical findings in any of the post- January 2008 evidence of, and the Veteran has not alleged, ankylosis, impairment of the tibia or fibula, genu recurvatum, dislocation of semilunar cartilage, or arthritis.  In the absence of such findings, evaluating either of the Veteran's knees under Diagnostic Codes 5003, 5256, 5259, 5262, or 5263 is not warranted.  See 38 C.F.R. 4.71a. Moreover, the disability was not shown to involve any other factor(s) that would warrant evaluation of the disability under any other provision(s) of the rating schedule for this period.

Finally, the Board has further considered whether the Veteran is entitled to a higher or separate rating under Diagnostic Code 5257 pertinent to recurrent subluxation or lateral instability. See VAOPGCPREC 23-97;VAOPGCPREC 9-98. However, the evidence fails to demonstrate that the Veteran's left knee disorder results in such impairment. 

Under 38 C.F.R. § 4.71a, Diagnostic Code 5257, the following criteria are provided:  
*  a 10 percent rating when there is slight recurrent subluxation or lateral instability, 
* a 20 percent rating when there is moderate recurrent subluxation or lateral instability, and 
* a 30 percent evaluation for severe recurrent subluxation or lateral instability.

In this regard, at the January 2008 VA examination, the examiner did not detect any instability of the knee or giving way and he reported that there were no episodes of subluxation or dislocation.  In February 2013, the Veteran complained of giving way of the left knee and was given a knee brace.  No evidence of patellar subluxation/dislocation of the left knee when the Veteran was examined in January 2014.  Finally, in May 2015, the Veteran reported that she used the brace constantly for stability.  All joint stability tests showed normal results and there was no evidence of recurrent patella subluxation/dislocation.  

The Board notes that the Veteran is currently rated at the 30 percent level for left patella lateral subluxation since January 20, 1999, and the Board will not disturb that rating even though there was no objective evidence of patella subluxation/dislocation.  However, a higher evaluation of the left knee under any of the applicable codes is not warranted.  

Extraschedular consideration

To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1).

The provisions of 38 C.F.R. § 3.321(b) state as follows: 

Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where 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 on the basis of the criteria set forth in this paragraph an extra-schedular 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. 

In Thun v. Peake, 22 Vet. App. 111 (2008), the Court specified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. 

If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. 

VA's General Counsel has stated that consideration of an extra-schedular rating under 3.321(b)(1) is only warranted where there is evidence that the disability picture presented by the Veteran would, in that average case, produce impairment of earning capacity beyond that reflected in the rating schedule or where evidence shows that the Veteran's service-connected disability affects employability in ways not contemplated by the rating schedule. See VAOPGCPREC 6-96 (Aug. 16, 1996). 

In Thun, the Court further explained that the actual wages earned by a particular Veteran are not considered relevant in the calculation of the average impairment of earning capacity for a disability, and contemplate that Veterans receiving benefits may experience a greater or lesser impairment of earning capacity than average for their disability. The Thun Court indicated that extraschedular consideration cannot be used to undo the approximate nature of the rating system created by Congress. 

The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance. However, the Board is not precluded from raising this question, see Floyd v. Brown, 9 Vet. App. 88 (1996), and addressing referral where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

The Board is aware of the Veteran's complaints as to the effects of her service-connected left knee disorder has had on her activities of work and daily living.  The Veteran specifically complained that her ability to work is affected by the difficulty she has running, squatting, and walking for long during flare ups. (See VA examination of January 2014).  In the Board's opinion, all aspects of these disabilities are adequately encompassed in the assigned schedular rating. 

With respect to the left knee disability, the Veteran has been awarded compensation based upon complaints of giving way of the knee.  She does not meet the current criteria for severe subluxation/dislocation, and multiple diagnostic criteria were considered and ruled out by the Board as not applicable.  In short, the Board finds that the assigned schedular evaluation is adequate. As such, there is no basis for extraschedular referral in this case. See Thun, 22 Vet. App. 111, 114-15 (2008).

The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) has been raised by the Veteran's claim for an increased rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  However, TDIU is not raised in an increased rating claim unless the Roberson requirements are met.  Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009).  Here, the Veteran has not made any assertions of unemployability and none are raised by the record.  Therefore, further consideration of TDIU is not warranted.

In reaching the above 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 claims, that doctrine is not applicable in the instant appeal.  See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


B. Left Knee Surgical Scar

The Veteran contends entitlement to a compensable rating for residuals of her left knee surgical scar.  

This claim of entitlement to service connection to a separate disability rating for a left knee surgical scar was previously before the Board in June 2012, at which time the Board remanded for additional development.  In a September 2014 rating decision, the RO granted service connection for surgical scar of the left knee with a noncompensable rating, effective March 19, 2012.  

Historically, the Veteran's scar disability is rated under Diagnostic Code 7804, which contemplates scars that are unstable or painful.  38 C.F.R. § 4.118, Diagnostic Code 7805 (2014).  Under the rating criteria, a 10 percent evaluation is assigned for one or two scars that are unstable or painful, 20 percent for three or four scars, and 30 percent for five or more scars.  See id.  

Other potentially applicable rating codes include DC 7801, 7802 and 7805. DC 7801 governs the evaluation of scars other than on the head, face, or neck that are deep and nonlinear. A 10 percent disability evaluation is for assignment for an area or areas exceeding 6 square inches. A 20 percent disability evaluation is contemplated for an area or areas exceeding 12 square inches.

Under DC 7802, a 10 percent disability evaluation is assigned for scars other than on the head, face, or neck, that are superficial and nonlinear and have an area or areas of 144 square inches or greater. A 10 percent disability evaluation represents the maximum schedular rating available under DC 7802. Diagnostic Code 7805, directs that scars are to be rated on limitation of function of the part affected. 38 C.F.R. § 4.118, DC 7801-7805 (2014). 

A May 2014 VA Disability Benefits Questionnaire (DBQ) report indicated that the Veteran has a residual scar on her left knee from surgery in 1991.  The examiner found that the surgical scar is related to her knee condition but that such scars were not painful or unstable.  The scar was found to be superficial and non-linear, measuring at 8 centimeters by 1.5 centimeters, which did not encompass a total area greater than 39 square centimeters (six square inches).

The record does not support an initial compensable rating for a residual surgical scar of the left knee.  The scar was not found to be painful or unstable on objective examination and there is no indication that the Veteran subjectively reported such symptoms.  As such, the record does not indicate that the Veteran's left knee surgical scar manifested as painful or unstable and, accordingly, a compensable rating is not warranted.  

The Board has considered whether a higher or a separate rating is warranted under other applicable diagnostic codes, However, the scar does not impact an area of 144 square inches (929 square centimeters) or greater and hence do not warrant a rating under Diagnostic Code 7802.  The surgical scar was also not found to be deep or nonlinear and was clearly not located on the head, face or neck; a compensable rating under Diagnostic Code 7800 or 7801 is therefore not warranted.  Finally, the Board notes that the Veteran has not subjectively reported that either scar impacted an area or areas of 144 square inches (929 square centimeters) or greater, that either scar was deep or nonlinear or that either scar was located on the head, face or neck, and does not cause limited motion.  As such, higher or separate ratings under other potentially applicable diagnostic codes are not warranted.

Competency of evidence differs from weight and credibility.  The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted.  Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify").

In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes through her senses.  Layno, 6 Vet. App. at 47.  She is not, however, competent to identify a specific level of disability of her surgical scar of the left knee according to the appropriate diagnostic codes.  Such competent evidence concerning the nature and extent of the Veteran's left knee surgical scar have been provided by the medical personnel who examined her during the current appeal and rendered pertinent opinions in conjunction with the evaluation.  The medical findings (as provided in the examination reports) directly address the criteria under which this disability is evaluated.  The Board finds these records to be more probative than the Veteran's general complaints of increased symptomatology.  See Cartwright, supra (interest in the outcome of a proceeding may affect the credibility of testimony).

The Board has considered whether staged ratings under Fenderson are appropriate for the Veteran's service-connected surgical scar of the left knee; however, the Board finds that her symptomatology has been stable throughout the appeal. Therefore, assigning a staged rating for such disability is not warranted.

Additionally, the Board finds that at no pertinent point have the surgical scar of the left knee been shown to be so exceptional or unusual as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1).

The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disabilities at issue are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).  See also 38 C.F.R. 
§ 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c).  Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required.  See VAOGCPREC 6-96 (Aug. 16, 1996); Thun v. Peake, 22 Vet. App. 111 (2008).

If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization).  38 C.F.R. 
§ 3.321(b)(1).  If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Thun, supra.

In this case, the Board finds that the applicable schedular criteria are adequate to each disability currently under consideration at all points pertinent to this appeal. The rating schedule fully contemplates the described symptomatology, and provides for ratings higher than that assigned based on more significant functional impairment.  Significantly, there is no medical indication or argument that the applicable criteria are otherwise inadequate to rate the surgical scars of the left knee.  Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). 

Further, the Board notes that, pursuant to Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced.  However, in this case, even after affording the Veteran the benefit of the doubt under Mittleider v. West, 11 Vet. App. 181 (1998), there is no additional left knee surgical scar impairment that has not been attributed to a specific service-connected disability. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions.

Finally and as note previously in this decision, the Board has considered the issue of TDIU. But as there is no suggestion at this point that the Veteran would be unable to obtain or maintain gainful employment due to her service-connected left knee surgical scar, or as a result of her combined service-connected disabilities consideration of a TDIU in connection with the higher rating claims on appeal is not warranted. 

For all the foregoing reasons, the Board finds that there is no basis for a higher, or staged, rating for the surgical scars of the left knee, pursuant to Fenderson, and that the claim for a compensable rating must be denied.  The Board finds that the preponderance of the evidence is against assignment of any higher or additional rating for any disability under consideration.  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



____________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals