Citation Nr: 1744167 Decision Date: 10/03/17 Archive Date: 10/13/17 DOCKET NO. 10-03 441 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Baltimore, Maryland THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for a painful right knee surgical scar status post arthroscopy and patellar tendon repair (hereinafter a painful scar). 2. Entitlement to an initial compensable rating for nonlinear right knee surgical scars status post arthroscopy and patellar tendon repair (hereinafter nonlinear scars). REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION The Veteran served on active duty from September 1998 until his retirement in September 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. In that decision, the RO granted service connection for a right knee scar status post arthroscopy and assigned a noncompensable rating, effective October 1, 2008. The Veteran disagreed with the initial rating assigned and perfected a timely appeal. In September 2012, the Board in pertinent part remanded to the agency of original jurisdiction (AOJ) the issue of entitlement to an initial compensable rating for a right knee scar. Subsequently, jurisdiction was transferred to the RO in Baltimore, Maryland. After completing the requested action, the AOJ granted a higher, 10 percent rating for the painful surgical scar, effective October 1, 2008. In addition, the AOJ granted service connection for nonlinear right knee surgical scars and assigned a noncompensable rating, also effective October 1, 2008. Inasmuch as that increase to 10 percent for a painful surgical scar did not result in the maximum rating available for painful scars, the issue remained on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is allowed by law and regulation). In addition, although the Veteran has not expressed disagreement with the initial noncompensable rating assigned for the newly service-connected nonlinear scars, because his original service connection claim was for "residuals of right knee surgeries," the Board will also consider the propriety of the initial noncompensable rating assigned for the nonlinear scars. In October 2016, the AOJ also issued a supplemental statement of the case (SSOC), which continued to deny initial ratings higher than those already assigned for right knee scars, and returned the appeal to the Board. FINDINGS OF FACT 1. The diagnostic criteria for evaluating scars in effect prior to October 23, 2008, are less favorable to the Veteran; the current diagnostic criteria for evaluating scars are more favorable to the Veteran. 2. The Veteran's right knee painful scar, measuring 13 by 1cm over the midline of the right knee, is manifested as deep, nonlinear, and painful; it has not been unstable. 3. The Veteran's two nonlinear scars, measuring 0.5 by 0.5cm medially and 0.5 by 0.2cm laterally, are manifested as deep and nonlinear; they have not been painful or unstable. 4. Collectively, the Veteran's three right knee surgical scars, which are deep and nonlinear, measure approximately 13.35 square centimeters. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for a painful right knee surgical scar have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805 (prior to October 23, 2008); 38 C.F.R. § 4.118, Diagnostic Code 7804 (2016). 2. The criteria for an initial compensable rating for two or three nonlinear right knee surgical scars have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805 (prior to October 23, 2008); 38 C.F.R. § 4.118, Diagnostic Code 7801 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Due Process With respect to the Veteran's claim for initial higher ratings for painful right knee and nonlinear right knee scars decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In the instant case, the Veteran's July 2008 application for service connection was received prior to his military retirement as part of the Benefits Delivery at Discharge (BDD) program, and that application itself provided adequate notice regarding the underlying claim for service connection. While the Veteran's March 2009 notice of disagreement (NOD) reflected his actual knowledge of what was required for a higher rating for his right knee scar, the December 2009 statement of the case (SOC) included the specific rating criteria the AOJ used to evaluate his right knee scar(s) as well as other criteria used to evaluate other scars not of the head, face, or neck. Regarding VA's duty to assist, the Board finds that all necessary development has been accomplished with respect to the issues decided herein, to include substantial compliance with the prior Remand directives, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993); see also D'Aries v. Peake, 22 Vet. App. 97, 105. Service treatment and personnel records, VA treatment records, VA examination reports pertinent to other claims or disabilities, and lay statements are associated with the claims file. VA provided relevant examinations as discussed further in the decision below. There is no indication of additional existing evidence that is necessary for a fair adjudication of the claims that are the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. II. Increased Rating Claims Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). By way of history, the Veteran had right knee surgeries in July 2003 and October 2005. Initially, the AOJ rated the right knee scar as noncompensably disabling pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7805 (2016). The Veteran disagreed with the initial rating, stating his right knee scar was "painful to the touch" and swells. He believed a higher rating was warranted. As indicated, the AOJ increased the initial rating for the painful right knee scar to 10 percent, now evaluating this scar under Diagnostic Code 7804 since the October 1, 2008 effective date. The Veteran's right knee nonlinear scars are rated as noncompensable pursuant to 38 C.F.R. § 4.118, Diagnostic Code 7801 (2016). As an initial matter, effective October 23, 2008, the Schedule for rating criteria that addresses the evaluation of scars was revised. See VA Schedule for Rating Disabilities; Evaluation of Scars, 73 Fed. Reg. 54,708, 54,708 (Oct. 23, 2008) (codified at 38 C.F.R. pt. 4). These new criteria apply to applications for benefits received on or after October 23, 2008, or upon request from a veteran who was rated under the applicable criteria before this date. Id. The Veteran's claim was received in July 2008 and VA has not received a request to evaluate his right knee surgical scars under these "new," current criteria. As a result, his scar disabilities are properly rated under the criteria in effect prior to October 23, 2008 (the "old criteria"). A review of the record, however, reflects that the AOJ has consistently evaluated the Veteran's right knee scars under the revised, current criteria. The Board has considered the Veteran's scars under the old and current criteria and finds that the new criteria are more favorable to the Veteran. The Board considers the examination findings pertinent to the Veteran's scars in more detail below; however, to illustrate that the old diagnostic criteria are less favorable to the Veteran, the Board discusses those criteria first. Under the old criteria, Diagnostic Code 7805 directed rating scars on limitation of function of the part affected. 38 C.F.R. § 4.118, Diagnostic Code 7805 (prior to 2008). Here, the evidence demonstrates that the Veteran's surgical right knee scars did not cause functional impairment of his knee. Diagnostic Code 7804 provided a 10 percent rating, and no higher, for superficial, tender and painful scars on objective demonstration. In this case, the evidence of record did not objectively demonstrate pain of any right knee scar until the March 2016 VA examination. Therefore, under the old criteria, the Veteran would not be entitled to the 10 percent rating currently assigned for his painful right knee scar (based on his subjective report) from the date service connection became effective on October 1, 2008, until March 9, 2016, the day before his VA scars examination. The other Diagnostic Codes under the old criteria similarly would not benefit the Veteran. His right knee scars are not superficial, poorly nourished, with repeated ulceration; and they are neither disfiguring scars of the head, face, or neck; nor scars caused by third degree burns. Id. Diagnostic Codes 7803, 7801, 7800 (prior to October 23, 2008). Turning to the current criteria for evaluating scars, under Diagnostic Code 7801, for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear, a 10 percent rating is assigned for area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm). Higher ratings are assigned for such scars that cover a larger area. 38 C.F.R. § 4.118, Diagnostic Code 7801. A deep scar is one associated with underlying soft tissue damage. Id. note (1). Diagnostic Code 7804 assigns different ratings for unstable or painful scars based on the number of such scars. For unstable or painful scars, a 10 percent rating is assigned for one or two scars; a 20 percent rating is assigned for three or four scars; and a 30 percent rating is assigned for five or more scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. note (1). If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Id. note (2). Finally, scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. Id. note (3). Prior to his military retirement, the Veteran was afforded a VA joints examination in August 2008. Examination of the right knee revealed a well-healed longitudinal scar anteriorly. No other details of the surgical scar(s) were reported. In compliance with the Board's remand directives, the Veteran was afforded a VA scars examination in March 2016 that was fully responsive to the rating criteria for evaluating scars. On examination, the Veteran had three right knee scars associated with his in-service surgeries. The examiner identified the first scar as painful, deep and nonlinear over the midline of the right knee, measuring 13 by 1cm. The other two deep, nonlinear scars were not tender or painful. They were located at the medial and lateral right knee and measured 0.5 by 0.5cm and 0.5 by 0.2cm, respectively. The approximate total area of right knee deep, nonlinear scars was 13.35 square centimeters. None of the scars was unstable or both painful and unstable, and there were no other pertinent physical findings, complications, conditions, or signs or symptoms associated with any scar. The examiner remarked that none of the scars impacted the Veteran's ability to work. VA treatment records from the Veteran's initial visit in February 2009 to October 2016 are associated with the claims file. These records are silent for complaints or findings related to the right knee surgical scars. In addition, while the Veteran had described swelling at the scar site in his March 2009 NOD, VA treatment records document no edema of the right knee or swelling of the right knee scars on examination. Similarly, a March 2010 right knee MRI study identified extensive underlying edema at Hoffa's fat pad; however, the MRI report pertained to the anatomy of the knee joint and not the exterior scars. Having considered the medical and lay evidence of record, the Board finds that higher initial ratings than those currently assigned for right knee scars are not warranted. First, since service connection was established, the Veteran's right knee painful scar has measured 13 by 1cm over the midline of the right knee and was deep, nonlinear, and painful. These findings are consistent with the 10 percent rating currently assigned under Diagnostic Code 7804. A higher rating is not warranted because only one of the Veteran's three right knee scars is painful and none of the scars is unstable. Considering the other nonlinear right knee scars, since service connection was established these two deep, nonlinear scars at the medial and lateral right knee measured 0.5 by 0.5cm and 0.5 by 0.2cm, respectively, and were not tender or painful. These findings are consistent with the noncompensable rating assigned under Diagnostic Code 7801 based on the total area of the scars. Moreover, because the Veteran's painful right knee scar is also deep and nonlinear, the Board has considered his three right knee surgical scars collectively under Diagnostic Code 7801. Because, however, the total area of these three scars is 13.35 square centimeters, the minimum criteria for a compensable rating are not met. Therefore, a higher rating is not warranted on the basis of the total area of the Veteran's three deep and nonlinear right knee scars. The Board has considered other potentially applicable rating criteria for evaluating the Veteran's right knee surgical scars. However, his scars are not located on the head, face, or neck; they are not superficial and linear; and no disabling effects have resulted from the scars (other than pain, which is already compensated). See 38 C.F.R. § 4.118, Diagnostic Codes, 7800, 7802, 7805. Therefore, a higher rating on the basis of alternate diagnostic codes is not warranted for any of the scars. In summary, the most probative evidence indicates that the Veteran's painful right knee scar and two deep and nonlinear right knee scars clearly fall within the criteria for the 10 percent and noncompensable ratings assigned, respectively, for the duration of the claim. The Board has considered staged ratings under Fenderson v. West, 12 Vet. App. 119 (1999), but concludes they are not warranted because the medical and lay evidence of record does not support higher ratings than those already assigned. Therefore, the 10 percent and noncompensable ratings for the right knee scars are proper throughout the appeal period and higher ratings are denied. The Board considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted; however, the Veteran has not identified symptoms of his right knee scars not specifically referenced by the applicable rating criteria. Therefore, no analysis regarding referral for an extraschedular rating is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this case neither the Veteran nor the record has raised the question of unemployability due to service-connected disability. Therefore no further discussion of a TDIU is necessary. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claims for initial higher ratings than those currently assigned for his right knee scars, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. ORDER Entitlement to an initial rating in excess of 10 percent for a painful right knee scar is denied. Entitlement to an initial compensable rating for two or three deep and nonlinear scars is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs