Citation Nr: 1800643	
Decision Date: 01/05/18    Archive Date: 01/19/18

DOCKET NO.  14-23 877	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York

THE ISSUES

1. Entitlement to earlier effective dates for entitlement to service connection for a right knee disability, a right shoulder disability, and right shoulder scars. 

2. Entitlement to a rating in excess of 20 percent for a right shoulder disability.

3. Entitlement to a rating in excess of 10 percent for a right knee disability.

4. Entitlement to an initial compensable rating for scars, status post arthroscopic surgery. 

5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). 

REPRESENTATION

Appellant represented by:	Sean A. Kendall, Attorney



WITNESS AT HEARING ON APPEAL

Appellant
ATTORNEY FOR THE BOARD

L. Bush, Associate Counsel

INTRODUCTION

The Veteran served on active duty in the U.S. Army from March 2009 to July 2012.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California.  Jurisdiction now lies with the RO in Buffalo, New York.  

In October 2017, the Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing.  A copy of the hearing transcript has been associated with the record. 

The issues of entitlement to a rating in excess of 10 percent for a right knee disability and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. During his October 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran stated that he was withdrawing his appeal for earlier effective dates for a right knee disability, a right shoulder disability, and right shoulder scars and his appeal for entitlement to a rating in excess of 20 percent for a right shoulder disability.  

2. The Veteran's right knee was productive of locking, pain, and effusion into the joint throughout the period on appeal.

3. One of the Veteran's scars, status post arthroscopic surgery is painful and unstable. 

CONCLUSIONS OF LAW

1. The criteria for withdrawal of an appeal by the appellant for earlier effective dates for a right knee disability, a right shoulder disability, and right shoulder scars and for entitlement to a rating in excess of 20 percent for a right shoulder disability have been met.  38 U.S.C. § 7105 (b) (2), (d) (5) (2012); 38 C.F.R. § 20.204 (2017).

2. The criteria for a separate 20 percent rating for a dislocated right knee with episodes of locking, pain, and effusion into the joint are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.321, 4.40, 4.45, 4.59, 4.71(a), Diagnostic Code 5258 (2017). 

3. The criteria for entitlement to an initial 10 percent rating for a scar, status post arthroscopic surgery are met. 38 U.S.C. §§ 1155, 3.321 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.118, Diagnostic Code (DC) 7804 (2017).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Withdrawal of Claims

The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2017).  

In the present case, the appellant has withdrawn his appeals for earlier effective dates for a right knee disability, a right shoulder disability, and right shoulder scars and for entitlement to a rating in excess of 20 percent for a right shoulder disability. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding these issues.  Accordingly, the Board does not have jurisdiction to review the appeals and they are dismissed.

Increased Rating for a Right Knee Disability

The Veteran maintains that he is entitled to an increased rating for a right knee disability, diagnosed as right knee patellofemoral syndrome, and currently evaluated as 10 percent disabling.  His disability is rated under DC 5024-5260. 

Disability evaluations are determined by comparing the Veteran's current symptomatology with the criteria set forth in the Schedule for Rating Disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part, which becomes painful on use, must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59 (2017). 

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2017). 

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2017); Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

As reflected in the Veteran's VA examinations and in his testimony at his October 2017 hearing, the Veteran's right knee disability has been shown to be manifested by locking and effusion into the joint.  Given these facts and applying the law to the existing facts, the Board finds that the assignment of a 20 percent rating is warranted under Diagnostic Code 5258.  Under Code 5258, a 20 percent rating is warranted for cartilage, semilunar, dislocated, with frequent episodes of "locking," pain, and effusion into the joint.  

In the remand section of this decision the Board addresses additional testing necessary to determine whether the Veteran's right knee disability is manifested by additional symptoms compensable under other Diagnostic Codes. 

Increased Rating for Scar, Status Post Arthroscopic Surgery

The Veteran seeks an initial compensable rating for his service-connected scars, status post arthroscopic surgery. 

Scars are rated under diagnostic codes 7800-7805. 38 C.F.R. § 4.118 (2017).  DC 7801 evaluates scars based upon their size that are not located on the head, face, or neck, and that are deep and nonlinear. DC 7802 assigns a 10 percent rating for scars covering an area or areas of 144 square inches (929 square centimeters) or greater that are not located on the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118 (2017). Neither diagnostic code applies in this case. 

DC 7804 evaluates painful or unstable scars. A 10 percent rating is awarded for one or two scars that are unstable or painful. A 20 percent rating is awarded for 3 or 4 scars that are unstable or painful. A 30 percent rating is awarded for 5 or more scars that are unstable or painful. 38 C.F.R. § 4.118 (2017).

The Veteran's September 2014 VA Examination shows that he has four arthroscopic scars on his right shoulder.  At his October 2017 hearing, the Veteran reported that one of his scars is painful, numb, sensitive, becoming red when irritated, and itchy.  He reported that that particular scar felt like something was sticking out of it, stating that it had a "fishing line consistency."  There is nothing in his records indicating that the Board should question his credibility with regard to the statements he has made in support of this claim. Pain, being lay-observable, is a symptom, he is credible to report. Jandreau v. Nicholson, 492 F.3d 1372, 1377   (Fed. Cir. 2007); Kahana v. Shinseki, 24 Vet. App. 428, 434   (2011) (holding that the Board erred in categorically rejecting lay evidence without analyzing and weighing it); see also Buchanan v. Nicholson, 451 F.3d 1331, 1336   (Fed. Cir. 2006); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). 

There is no medical or lay evidence that the scar causes any limitation of motion or function. Thus, with resolution of all doubt in his favor, he has one painful scar on his right shoulder and is therefore assigned a 10 percent rating, but no higher, under DC 7804.

ORDER

The appeal for earlier effective dates for a right knee disability, a right shoulder disability, and right shoulder scars is dismissed.

The appeal for entitlement to a rating in excess of 20 percent for a right shoulder disability is dismissed. 

A separate 20 percent rating under Diagnostic Code 5258 for a right knee disability is warranted. 

A 10 percent rating for service-connected scar, status post arthroscopic surgery is granted, subject to the laws and regulations governing monetary benefits.

REMAND

Unfortunately, a remand is required for the remaining issues on appeal. Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Appellant's claims so that he is afforded every possible consideration. 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159 (2017).

Regarding the Veteran's right knee disability, the most recent VA examination that the Veteran had to assess its severity was in September 2014.  Recently, the United States Court of Appeals for Veterans claims in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate. In addition, as relevant to the present case, the Court stated in Correia that knees were "undoubtedly weight-bearing." Id.  A review of the claims file reveals that the June 2016 VA knee examination did not demonstrate range of motion testing for both knees in passive motion, weight-bearing, and nonweight-bearing situations.  In light of Correia and to ensure that the record reflects the current severity of the Veteran's disability, a new VA knee examination is necessary.  In order to comply with the Correia case, it is requested that the VA examiner test the range of motion for the right knee in active motion, passive motion, weight-bearing, and nonweight-bearing situations. 

The Veteran's TDIU claim was denied in a January 2015 rating decision.  On June 30, 2015, a Notice of Disagreement was submitted on the Veteran's behalf by Joseph Whitcomb.  However, Sean Kendall had become the Veteran's appointed representative on February 26, 2014.  Thus, VA found that Joseph Whitcomb did not have standing to submit the Veteran's Notice of Disagreement and notified him that they would not continue to process the appeal for that issue.  See September 2017 Correspondence.  

However, as the Veteran testified on the issue of TDIU at his October 2017 hearing, the Board finds that it has now been raised by the record.  Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).  A completed VA Form 21-8940 should be solicited from the Veteran in order to properly document his education, training, experience, and work history.
Accordingly, the case is REMANDED for the following action:

1. The AOJ should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his right knee disability. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file.

Any outstanding, relevant VA medical records should also be obtained and associated with the claims file.

2. After any additional records are associated with the claims file, the AOJ should secure the appropriate VA knee examination to ascertain the current severity and manifestations of the Veteran's service-connected right knee disability. Access to the VBMS and Virtual VA electronic claims files must be made available to the examiner for review. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examination should include a statement as the effect of the Veteran's service-connected right knee disability on the Veteran's occupational functioning and daily activities. The VA examiner should provide a complete rationale for any opinions provided.

In particular, the VA knee examination must include range of motion testing for the right knee in the following areas: active motion; passive motion; weight-bearing; and nonweight-bearing.

3. The AOJ should attempt to obtain from the Veteran a formal application for TDIU, VA Form 21-8940, as well as any other evidence regarding that claim, as appropriate.

4. Following any additional indicated development, the AOJ should review the claims file and re-adjudicate the Veteran's claims. If the benefits sought on appeal remain denied, the Veteran and his representative, if any, should be furnished a supplemental statement of the case and given the opportunity to respond thereto before the case is returned to the Board.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C. §§ 5109B, 7112 (2012).


______________________________________________
Bradley W. Hennings
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs