Citation Nr: 1805101 Decision Date: 01/25/18 Archive Date: 02/05/18 DOCKET NO. 12-23 571 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to a rating in excess of 30 percent for left knee postoperative residuals of a medial arthrotomy. 2. Entitlement to an initial rating in excess of 10 percent for left knee arthritis. 3. Entitlement to an initial compensable rating for a postoperative left knee scar. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD C. Kass, Associate Counsel INTRODUCTION The Veteran served on active duty from May 1951 until May 1953. This matter comes before the Board of Veterans' Appeals (Board) from a July 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. Jurisdiction was subsequently transferred to the RO in Roanoke, Virginia. In November 2009, the Veteran requested an increased rating for his left knee disabilities. The Board construed this statement as a Notice of Disagreement to the July 2009 rating decision. The issues of entitlement to an increased rating for left knee instability, and left knee arthritis are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (West 2012). FINDING OF FACT The Veteran's left knee scar is not unstable or painful. CONCLUSION OF LAW The criteria for a compensable rating for left knee scar are not met. 38 U.S.C. §§1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, DC 7804 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA satisfied the duty to notify in this appeal as to the claim adjudicated upon the merits at this time, and neither the Veteran nor his representative has asserted any error as to this duty. See Scott v. McDonald, 789 F. 3d 1375 (Fed. Cir. 2015); Dickens v. McDonald, 814 F.3d 1359 (Fed. Cir. 2016). With regard to the duty to assist, the relevant records have been obtained. The Veteran was provided several VA examination regarding his claim in June 2009, November 2010, and April 2017. The Board finds these examinations to be adequate upon which to adjudicate the merits of this appeal as to the increased rating claim for the knee scar. II. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned specific diagnostic codes. 38 U.S.C.§1155; 38 C.F.R. § 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 ; Peyton v. Derwinski, 1 Vet. App. 282 (1991). 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 . Left Knee Scar The Veteran's left knee scar is assigned a noncompensable rating under DC 7804 which pertains to unstable or painful scars. Under DC 7804, one or two scars warrant a 10 percent rating, three or four warrant a 20 percent rating, and five or more warrant a 30 percent rating. The record shows the Veteran's scar is not unstable or painful. In June 2009, the VA examiner did not find any functional limitation. The linear scar that measured 10.0 cm by 0.3 cm. The Veteran did not report any skin breakdown. In November 2010, his linear scar measured 10.0 cm by 0.1 cm and it was not painful. In April 2017, his scar was consistent with the previous VA exam results. Based on this body of evidence, the Board finds that a noncompensable rating is warranted under DC 7804 because he had one scar and it is not unstable or painful. A higher rating is not warranted under this code because there is no evidence of three or four painful scars. ORDER A compensable rating for a left knee scar is denied. REMAND While the Board sincerely regrets the delay, the Veteran's claims are remanded for further development. The Veteran had a VA knee examination in April 2017. After review of the examination report, the Board finds that an additional VA examination should be obtained. In the April 2017examination, the examiner noted the Veteran could not perform the necessary testing because he was wearing a catheter that was hooked to his wheelchair. The Board previously remanded for an updated examination. Since the required testing was not performed, the Board is again remanding this case to obtain testing or determination that testing cannot be performed. For these reasons, the Board directs that an additional left knee examination be provided. Accordingly, the case is REMANDED for the following action: 1. Ensure all outstanding VA records are associated with the claims file, specifically to include records since May 2017. 2. After completing the preceding development, schedule the Veteran for a VA examination with an appropriate examiner to ascertain the current nature and severity of his left knee disabilities. All indicated studies should be performed if deemed necessary by the examiner for the evaluation of the Veteran under the pertinent rating criteria. The examiner should identify all symptoms and impairment associated with the Veteran's left knee, noting their frequency and severity. The examiner should also address whether there are flare-ups, and if so, discuss any additional functional loss during flare-ups. The examiner should test the range of motion in active motion and passive motion for both the left knee and the paired right knee. The examiner should identify whether there is pain during motion and, if so, at what degree pain begins. If the Veteran is unable to perform the required testing, the examiner must state whether the Veteran's inability to perform the required testing is permanent or provide an estimated timeframe when the testing could be performed. The examiner should explain why the Veteran cannot perform the testing. In addition, if the examiner concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. A complete rationale for any opinion expressed should be included in the examination report. 3. The AOJ should then review the obtained VA examination reports to ensure that the opinions contained therein are responsive to the questions posed. 4. After completion of the above and any other development deemed necessary, readjudicate the issues on appeal. If any issue remains denied, issue an appropriate supplemental statement of the case and afford the Veteran the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. The appellant has the right to submit additional evidence and argument on the 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 (West 2012). ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs