Citation Nr: 1800081 Decision Date: 01/03/18 Archive Date: 01/19/18 DOCKET NO. 13-21 574A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for residual scars of the left knee status post arthroscopy. 2. Entitlement to an effective date prior to June 28, 2010, for the award of service connection for chondromalacia of the right knee. 3. Whether new and material evidence has been received respecting a claim of service connection for bilateral hearing loss. 4. Entitlement to service connection for service connection for a rectal/anal disorder, to include hemorrhoids, anal fissure and anal stricture and to also include as secondary to service-connected irritable bowel syndrome (IBS). 5. Entitlement to service connection for pilonidal cyst. 6. Entitlement to service connection for a right shoulder disorder. 7. Entitlement to an initial compensable evaluation for bilateral hallux valgus. 8. Entitlement to an initial compensable evaluation for chondromalacia of the right knee. 9. Entitlement to an initial evaluation in excess of 10 percent for internal derangement status post meniscectomy and ACL replacement with hamstring grafting, chondromalacia and degenerative joint disease (DJD) of the left knee for the period prior to August 6, 2010, and for the period beginning February 1, 2011. REPRESENTATION Veteran represented by: Tommy D. Klepper, Attorney at Law WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from January 2004 to July 2008, during which the Veteran was shown to have three deployments to the Republic of Iraq. It also appears that evidence of record suggests that the Veteran had a subsequent period of active duty service until approximately July 2009, although such has not been further investigated and verified at this time. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2010, May 2012 and April 2013 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in August 2016. Although the Board acknowledges that the Veteran appealed the award of three separate residual scar disabilities associated with his left knee disability, the Board has combined those two noncompensable evaluations with the compensable evaluation for those scars and will address such as a single disability evaluation issue in this case. The issues of service connection for a rectal/anal, pilonidal cyst and right shoulder disorders, reopening service connection for bilateral hearing loss, an earlier effective date for the award of service connection for his right knee disability, and increased evaluations for the bilateral knee and bilateral hallux valgus disabilities are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT The Veteran has one painful residual scar of his left knee; the other residuals scars are not painful and there are no unstable residual scars of the Veteran's left knee; the total area associated with the Veteran's residual scars of the left knee status post arthroscopy are not at least 39 sq. cm. CONCLUSION OF LAW The criteria for establishing an initial evaluation in excess of 10 percent for residual scars of the left knee status post arthroscopy have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.118, Diagnostic Codes 7801-7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With respect to the claims herein decided, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). 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. § 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). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran has been assigned three separate evaluations for residual scars of his left knee associated with his status post surgical procedure: a single 10 percent evaluation for a residual painful scar of the left knee under Diagnostic Code 7804, and two noncompensable evaluations for residual linear and non-linear, non-painful and stable scars of the left knee under Diagnostic Code 7805. Throughout the appeal period, all of those disability evaluations have been assigned effective August 6, 2010-the date of that surgical procedure of the left knee. Diagnostic Code 7805 refers the rater to evaluate the scars based on the appropriate criteria under Diagnostic Codes 7800 through 7804. Under Diagnostic Code 7804, a 10 percent evaluation is assigned for 1 or 2 unstable or painful scars; a 20 percent evaluation is assigned for 3 or 4 unstable or painful scars; and, a 30 percent evaluation is assigned for 5 or more unstable or painful scars. See 38 C.F.R. § 4.118, Diagnostic Code 7804 (2017). Note (1) indicates that an unstable scar is one where, for any reason, there is frequent loss of covering over the scar. Additionally, if one or more scars are both unstable and painful, an extra 10 percent will be added to the evaluation that is based on the total number of unstable or painful scars. See Id., Note (2). Alternatively, under Diagnostic Code 7801, a 10 percent disability evaluation is assigned when a scar, of an area other than the head, face, and neck, is deep or causes limited motion, and involves an area or areas of at least 6 square (sq.) inches (39 square cm.), but less 12 sq. inches (77 sq. cm.). A 20 percent disability evaluation is warranted for when it involves an area or areas of at least 12 sq. inches (77 sq. cm.), but is less than 72 sq. inches (465 sq. cm.). A 30 percent disability evaluation is warranted when it involves an area or areas at least 72 sq. inches (465 sq. cm.), but less than 144 sq. inches (929 sq. cm.). A 40 percent evaluation is warranted when it involves an area or areas is at least 144 sq. inches (929 sq. cm.), or greater. See 38 C.F.R. § 4.118, Diagnostic Code 7801 (2017). Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. Finally, under Diagnostic Code 7802, a 10 percent evaluation is warranted for superficial, non-linear scars which have an area of 144 sq. inches (929 sq. cm) or greater. See 38 C.F.R. § 4.118, Diagnostic Code 7802 (2017). Note (1) indicates that a superficial scar is one not associated with underlying soft tissue damage. Turning to the evidence of record, the Veteran underwent a VA examination of his left knee scars in September 2012. During that examination, the examiner noted that the Veteran had one painful scar, and that his scars were not unstable; the painful scar was noted as not being both painful and unstable. The examiner further noted that the Veteran had three puncture scars from his arthroscopic knee surgery. The Veteran had one linear scar that was 3 cm, and three superficial non-linear scars which were 0.25 cm by 0.25 cm, 0.25 cm by 0.25 cm, and 0.5 cm by 0.25 cm in area; the examiner noted that the total combined area of the superficial non-linear scars was 0.5 sq. cm. Finally, the examiner noted that the Veteran's scars did not result in any additional limitation of function and found that they did not impact his ability to work; the examiner also concluded that photographs were not indicated. The Veteran additionally underwent a VA examination of his left knee in March 2013, although that examiner did not examine the Veteran's left knee scars at that time. The Board has additionally reviewed the Veteran's private and VA treatment records associated with the claims file; those records do not demonstrate any treatment or complaints related to his residual left knee surgical scarring. Finally, during his August 2016 hearing, the Veteran mentioned that he had scarring of his knee due to his left knee surgery and indicated that he had claims for increased evaluation of those residual scars on appeal. However, the Veteran and his representative did not proffer any additional evidence related to the severity of those residual scars; in fact, the Veteran did not indicate that he was treated at any time for those scars and also indicated that his scars were not worse since his last VA examination. Accordingly, based on this evidence, the Board must deny a higher evaluation for the Veteran's residual scars of the left knee status post arthroscopy. The Veteran is shown to have four scars associated with his left knee procedure. Only one of them is painful, and none of them are unstable. Additionally, the combined area of those 4 scars does not exceed 39 sq. cm. Consequently, the appropriate evaluation for the Veteran's residual scars of the left knee status post arthroscopy is 10 percent, for the single painful scar. Therefore, the Board must deny an increased evaluation than already assigned for the Veteran's residual scars of the left knee status post See 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7801-7805. In reaching the above conclusion, 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. § 5107(b) (2012); 38 C.F.R. § 3.102. ORDER An initial evaluation in excess of 10 percent for residual scars of the left knee status post arthroscopy is denied. REMAND As an initial matter, the Veteran's submitted Form DD-214 indicated that he had service from January 2004 through July 2008; the AOJ has only verified that period of service at this time. However, during his August 2016 hearing and in various statements of record, the Veteran also indicated that almost immediately after being discharged from service in July 2008, he began a subsequent period of service including at Special Forces training school at Fort Bragg until he was discharged from that period of service in approximately July 2009. In further support of this fact, the Veteran reports that he was seen for a physical at Tinker Air Force Base in September 2008, at which time the doctor noted that the Veteran was serving on active duty at that time. However, there is a line of duty report from April 2009 indicating that the Veteran injured himself in a parachute jump at that time resulting in fractures of his feet, for which service connection has already been established; that line of duty report indicated that the Veteran was on inactive duty for training (INACDUTRA) at the time of that injury in April 2009. Thus, at minimum, it appears that the Veteran had some period of service-whether such was active duty, active duty for training (ACDUTRA) or INACDUTRA-subsequent to his discharge in July 2008, although the type of service or the periods of such service are not clear at this time. Thus, a remand is necessary in order to verify any periods of service subsequent to his discharge from active duty in July 2008. In light of the need to verify such service, the Board reflects that if the Veteran served on active duty, the assignment of his effective date for his right knee disability may potentially be affected. See 38 C.F.R. § 3.400 (2017). Thus, that claim is intertwined with the need to verify the Veteran's periods of service and is also remanded at this time. See Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Furthermore, as noted above, the Veteran clearly was seen at Tinker Air Force Base after his discharge from service in July 2008. The Board acknowledges that it appears some of those records were submitted by the Veteran, although it does not appear that any attempt to obtain all of those records has been made by the AOJ at this time. Likewise, the Veteran's obtained service treatment records document several instances of treatment at service department medical facilities, particularly at Tinker, Womack, Shaw and Roscoe Robinson medical facilities. The actual treatment records from those facilities, however, are not in the claims file; therefore, a remand is necessary in order to ensure that any and all outstanding service treatment and/or any post-service Tricare treatment at any of those Armed Services medical facilities have been obtained and associated with the claims file. Additionally, during the remand, any ongoing VA treatment records should also be obtained. See 38 U.S.C. § 5103A(b), (c); 38 C.F.R. § 3.159(b). With regard to the Veteran's right shoulder claim, the Veteran indicated that he injured his right shoulder in a parachute jump in 2004, at which time he was treated at Roscoe Robinson clinic. The Veteran submitted a statement from D.W.W., who also indicated that he sent the Veteran for treatment at the Roscoe Robinson medical facility following injuries in a parachute jump. Consequently, the right shoulder claim must be remanded at this time as intertwined with the need to obtain records noted above. Turning to the Veteran's rectal/anal, hemorrhoids and pilonidal cyst claims, the Veteran has not been afforded a VA examination as to any of those claimed conditions. On appeal, the Veteran has contended that his hemorrhoids and other rectal/anal issues began during military service. Although the Veteran was noted to be normal on separation examination in April 2008, the Veteran also indicated that he had been on stop-loss in the Republic of Iraq for 6 months prior to discharge in July 2008, and that as a result, the Veteran purposefully did not report any medical issues, as doing so would result in further delays in his discharge from service. The Veteran, furthermore, is shown to August 2008, approximately 1 to 2 months after his discharge from service, to have been treated for blood in his stool, which at that time had been occurring for approximately two months, placing the onset of those symptoms during service or at approximately the time of his discharge therefrom. Consequently, such evidence suggests that the Veteran's hemorrhoidal and anal/rectal issues may have been present during his period of active duty, particularly given the close proximity of his treatment for those symptoms to his discharge from service. See 38 C.F.R. § 3.303(c). Moreover, the Veteran is shown to have been service-connected for IBS; during his August 2016 testimony, the Veteran stated that he believed that his rectal/anal, hemorrhoidal, and pilonidal cyst issues were also secondary to his service-connected IBS. Consequently, in light of the Veteran's contentions and the above evidence, the Board finds that the low threshold for obtaining a VA examination and medical opinion with regards to the anal/rectal, hemorrhoids, and pilonidal cyst issues have been met in this case. Accordingly, a remand of those issues in order to obtain a VA examination and medical opinion is therefore warranted at this time. See 38 U.S.C. § 5103A(d) (2012); McLendon v. Nicholson, 20 Vet App. 79, 81 (2006). Turning to the claim to reopen service connection for bilateral hearing loss, the Veteran was previously denied service connection for that condition due to the fact that he was not shown to have a current hearing loss disability under 38 C.F.R. § 3.385. During this appeal, the Veteran underwent VA audiological examination in April 2012, at which time the audiometric data did not demonstrate a hearing loss disability under 38 C.F.R. § 3.385. However, during his August 2016 hearing, the Veteran testified that he believed that he had a hearing loss disability at that time, and that he believed that hearing loss was a progressive disability that got worse with time; in essence, the Veteran stated during his hearing that he believed that he currently had a hearing loss disability at that time that was related to military service. Given the Veteran's statements and the fact that the current audiometric data of record from which the Board would be able to ascertain whether a current disability is present is over 5 years old, the Board finds that a remand is necessary in order to re-examine the Veteran in order to evaluate whether, at the present time, the Veteran has a current disability under 38 C.F.R. § 3.385. A remand in order to afford him another VA examination at this time is warranted based on the Veteran's testimony during his August 2016 hearing. See McLendon, supra. Finally, with respect to the Veteran's increased evaluation claims for his bilateral knee and hallux valgus disabilities, the Board notes that the last VA examinations of those disabilities were in March 2013 and March 2011, respectively. In his August 2016 hearing, the Veteran testified that since those VA examinations, those disabilities had worsened. Moreover, after the Board has reviewed those VA examination reports, although range of motion testing results were provided, the Board is unable to ascertain whether such was active or passive range of motion; likewise, although the examiners discussed pain on weightbearing, they did not discuss whether there was pain on non-weightbearing. Accordingly, the Board finds that a remand is necessary in order to obtain additional, adequate VA examinations which address the current severity of those disabilities. See Palczewski v. Nicholson, 21 Vet. App 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997); Bolton v. Brown, 8 Vet. App. 185, 191 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity); Caffrey v. Brown, 6 Vet. App. 377, 381 (1995); see also Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Correia v. McDonald, 28 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weightbearing and non-weightbearing and, if possible, with range of motion measurements of the opposite undamaged joint). Accordingly, the case is REMANDED for the following action: 1. Verify through official sources, including any financial records through the Defense Financial Accounting Service (DFAS), any period of service and state the type of such service (active duty, ACDUTRA, or INACDUTRA) that the Veteran may have had subsequent to his discharge from active duty service in July 2008, particularly through July 2009. The AOJ is reminded that if the Veteran's subsequent service were periods of ACDUTRA or INACDUTRA, the AOJ must provide the specific dates of such periods of verified service; merely providing a Retirement Points report will not substantially comply with the Board's remand directives as to this request. 2. Attempt to obtain through official sources any of the Veteran's treatment and personnel records that are not currently associated with the claims file for any period of verified service, particularly for the period of active duty service from January 2004 through July 2008, to specifically include at any Armed Services medical facilities at Tinker, Shaw, Womack and Roscoe Robinson. Treatment records from any of those Armed Forces medical facilities should also be obtained for any time that he was not serving a period of service but was treated at that facility, to specifically include any treatment under Tricare that he may have received at any of those facilities. After following the appropriate procedures, if the service records have not been obtained and it is determined that further attempts would be futile, such should be noted in the claims file with a memorandum of unavailability and the Veteran should be notified thereof. 3. Obtain any and all VA treatment records not already associated with the claims file from the Oklahoma City VA Medical Center, or any other VA medical facility that may have treated the Veteran and associate those documents with the claims file. 4. Send a letter to the Veteran asking him to identify any private treatment that he may have had for his anal/rectal, hemorrhoids, pilonidal cyst, bilateral hearing loss, right shoulder, bilateral knee and bilateral hallux valgus disorders, which is not already of record. After securing the necessary releases, attempt to obtain and associate those identified treatment records with the claims file. If any identified records cannot be obtained and further attempts would be futile, such should be noted in the claims file and the Veteran should be notified so that he can make an attempt to obtain those records on his own behalf. 5. Then ensure that the Veteran is scheduled for a VA examination of his claimed hemorrhoids, a pilonidal cyst, and any other anal/rectal disorders, such as anal fissure and anal stricture. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Following examination of the Veteran and review of the claims file, the examiner must indicate any and all anal/rectal disorders found, to include a pilonidal cyst, hemorrhoids, anal fissure, and/or anal stricture. Then, the examiner should opine whether any anal/rectal disorders found, to include a pilonidal cyst, hemorrhoids, anal fissure, and/or anal stricture, found at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service. In so discussing the above, the examiner should discuss the Veteran's noted blood in his stool in August 2008, approximate 1-2 months after discharge from service and the indication at that time that those symptoms had been ongoing for approximately 2 months. The examiner should also specifically address whether such is an initial manifestation of any of the Veteran's claimed conditions during his period of active duty service from January 2004 through July 2008, or any subsequently verified period of service. The examiner should also consider the Veteran's statements regarding onset of symptomatology and continuity of symptomatology since discharge from service, as well as any other pertinent evidence, as appropriate. Next, the examiner should opine whether the Veteran's anal/rectal disorders found, to include pilonidal cyst, hemorrhoids, anal fissure, and/or anal stricture, is at least as likely as not either (a) caused by; or (b) aggravated (i.e., chronically worsened) by the Veteran's service-connected irritable bowel syndrome (IBS). All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 6. Ensure that the Veteran is scheduled for a VA audiology examination. The claims folder must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. The examiner should obtain information regarding the Veteran's noise exposure during and after military service. Following audiometric testing, the examiner should indicate whether the Veteran has any hearing loss disability under 38 C.F.R. § 3.385, bilaterally. Then, the examiner should opine whether any bilateral hearing loss found at least as likely as not (50 percent or greater probability) began in or is otherwise related to military service, to include any noise exposure therein. The examiner should consider the Veteran's statements regarding onset of symptomatology and continuity of symptomatology since discharge from service, as well as any other pertinent evidence, as appropriate. Next, the examiner should opine whether the Veteran's bilateral hearing loss is at least as likely as not either (a) caused by; or (b) aggravated (i.e., chronically worsened) by the Veteran's service-connected tinnitus. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 7. Ensure that the Veteran is scheduled for a VA examination so as to determine the current severity of his bilateral knee disabilities. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed where possible. The bilateral knees should be tested for pain in both active and passive motion, in weightbearing and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. If any additional functional impairment be noted during flare-up, repeated use, and/or as a result of pain, lack of endurance, incoordination, etc., the examiner should attempt, to the best of his/her ability, to estimate the additional functional loss in degrees. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 8. Ensure that the Veteran is scheduled for a VA examination so as to determine the current severity of his bilateral hallux valgus disabilities. The claims file must be made available to and be reviewed by the examiner. All tests deemed necessary should be conducted and the results reported in detail. Full range of motion testing must be performed where possible. The bilateral feet should be tested for pain in both active and passive motion, in weightbearing and non-weightbearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner is further reminded that should any additional functional impairment be noted during flare-up, repeated use, and/or as a result of pain, lack of endurance, incoordination, etc., the examiner should attempt, to the best of his/her ability, to estimate the additional functional loss in degrees. Finally, the examiner should indicate whether the Veteran's hallux valgus is severe, if equivalent to amputation of great toe, and/or whether such was operated on with resection of his metatarsal head, bilaterally. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 9. Following any additional indicated development, readjudicate the Veteran's claims for service connection for anal/rectal, hemorrhoids, pilonidal cyst; reopen service connection for bilateral hearing loss; increased evaluations for bilateral knee and bilateral hallux valgus disabilities; and, an earlier effective date for the award of service connection for right knee disability. If any benefit sought on appeal remain denied, furnish to the Veteran and his representative a supplemental statement of the case and given the opportunity to respond thereto before the case is returned 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 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. §§ 5109B, 7112 (2012). ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs