Citation Nr: 1805904 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 12-04 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to higher ratings for a post-operative scar associated with an open reduction and internal fixation of the left femur (left leg scars) rated as non compensable before June 11, 2013, and 10 percent disabling from June 11, 2013. 2. Entitlement to an increased rating for residuals of a left femur fracture with left hip strain (left hip disorder), currently rated as 30 percent disabling. 3. Entitlement to an increased rating for left knee degenerative joint disease (left knee disorder), currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. T. Werner, Counsel INTRODUCTION The Veteran served on active duty with the United States Coast Guard from September 1974 to September 1994. This case comes to the Board of Veterans' Appeals (Board) from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In December 2013 and September 2016, the Board remanded the appeal for further development. A March 2017 rating decision thereafter granted the Veteran's left leg scar a 10 percent rating effective from June 11, 2013. The claims for higher ratings for the left hip and knee disorders are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT At all times before and after June 11, 2013, the evidence shows that the left leg scar associated with the open reduction and internal fixation of his left femur fracture is manifested by pain but it is not deep or causes limited motion in an area or areas exceeding 12 square inches (77 sq. cm.); he does not have three scars that are painful; and the scar does not otherwise impair function. CONCLUSION OF LAW The criteria for a 10 percent rating for the left leg scar associated with the open reduction and internal fixation of his left femur fracture, but no more, have been met at all times during the pendency of the appeal. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.27, 4.118, Diagnostic Codes 7801 to 7805 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims, in substance, that he is entitled to at least a compensable rating for the left leg scar associated with the open reduction and internal fixation of his left femur fracture, or more, at all times during the pendency of the appeal. See Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held 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 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation 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. In considering the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F. 3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The record shows that the Veteran is service-connected for a left leg scar associated with the open reduction and internal fixation of his left femur fracture and it is rated as non compensable before June 11, 2013, and 10 percent disabling from June 11, 2013 under 38 C.F.R. § 4.118, Diagnostic Code 7804. Under the rating criteria that has been in effect since before the Veteran filed his claim, Diagnostic Code 7801 provides that scars, other than the head, face, or neck, that are deep or that cause limited motion in an area or areas exceeding 6 square inches (39 sq. cm.) are rated 10 percent disabling. Scars that are deep or that cause limited motion in an area or areas exceeding 12 square inches (77 sq. cm.) are rated 20 percent disabling. Scars that are deep or that cause limited motion in an area or areas exceeding 72 square inches (465 sq. cm.) are rated 30 percent disabling. Scars that are deep or that cause limited motion in an area or areas exceeding 144 square inches (929 sq.cm.) are rated 40 percent disabling. Note (1) to Diagnostic Code 7801 provides that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25. Note (2) provides that a deep scar is one associated with underlying soft tissue damage. Under Diagnostic Code 7802, scars, other than the head, face, or neck, that are superficial and nonlinear that are of an area or areas of 144 square inches (929 square centimeters) or greater warrant a 10 percent disability rating. A superficial scar is not one associated with underlying soft tissue damage. See Note (1). Diagnostic Code 7804 provides that unstable or painful scars are rated as follows: 10 percent for one or two scars; 20 percent for three or four scars; and 30 percent for five or more scars. 38 C.F.R. § 4.118. Diagnostic Code 7805 directs that any other disabling effects of a scar not described in Code 7802 or 7804, are to be evaluated under an appropriate Diagnostic Code. Id. As to a compensable rating for the left leg scar associated with the open reduction and internal fixation of his left femur fracture before June 11, 2013, under Diagnostic Code 7804, the Board notes that at all times during the pendency of the appeal the Veteran has complained, in substance, that his scar is painful/tender. Likewise, when examined by VA the examiners opined that the scar was painful and/or, numb. See VA examinations dated in March 2012, May 2014, and September 2016. The Board finds the Veteran's complaints of left leg scar pain both competent and credible because it is something he can feel and it is consistent with the nature of his service-connected disability as well as the findings by the VA examiners. See Davidson. Thus the Board finds that the Veteran's symptoms meet the criteria for a compensable, 10 percent, rating before June 11, 2013. 38 C.F.R. § 4.118, Diagnostic Code 7804; Hart. As to a rating in excess of 10 percent for the left leg scar associated with his open reduction and internal fixation of his left femur under Diagnostic Code 7801 before and after June 11, 2013, the Board notes that the scar has not been shown to be deep or to cause limited motion in an area or areas exceeding 12 square inches (77 sq. cm.). In fact, the Veteran's scar measured 30 cm. by 0.6 cm. at the March 2012 VA examination; measured 31 cm. by 1.5 cm. at the May 2014 VA examination; and measured 32 cm. by 1.5 cm. at the September 2016 VA examination. These medical opinions are not contradicted by any other medical evidence of record. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). The Board also notes that the Veteran, in neither his writing to VA or in his statements to his healthcare providers, claimed that the scar was deep or that it caused limited motion in an area or areas exceeding 12 square inches/77 sq. cm.. See Davidson. Therefore, the Board finds that the preponderance of the evidence of record shows that the scar is not deep or that it causes limited motion in an area or areas exceeding 12 square inches/77 sq. cm. Accordingly, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's surgical scar of the left leg under Diagnostic Code 7801. See 38 C.F.R. § 4.118. This is true throughout the period of time during which his claim has been pending and therefore consideration of staged ratings are not warranted. Hart. As to a rating in excess of 10 percent for the left leg scar under Diagnostic Code 7804 before and after June 11, 2013, the Board notes that the scope of the Veteran's service connected disability does not include more than one scar associated with his open reduction and internal fixation of his left femur fracture. See rating decision dated in December 2002. Therefore, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's surgical scar of the left leg under Diagnostic Code 7804. See 38 C.F.R. § 4.118. This is true throughout the period of time during which his claim has been pending and therefore consideration of staged ratings are not warranted. Hart. As to a rating in excess of 10 percent for the left leg scar associated with the Veteran's open reduction and internal fixation of his left femur under Diagnostic Code 7805 before and after June 11, 2013, the Board notes that the scar has not been shown to produce any other functional impairment. In fact, the May 2014 and September 2016 VA examiners opined that it did not result in any other limitation of function and these medical opinions are not contradicted by any other medical evidence of record. See Colvin. The Board also notes that the Veteran, in neither his writing to VA or in his statements to his healthcare providers, claimed that the scar produced any functional impairment. See Davidson. Therefore, the Board finds that the preponderance of the evidence of record shows that the scar does not produces any other functional impairment. Accordingly, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's surgical scar of the left leg under Diagnostic Code 7805. See 38 C.F.R. § 4.118. This is true throughout the period of time during which his claim has been pending and therefore consideration of staged ratings are not warranted. Hart. ORDER Subject to the law and regulations governing the payment of monetary benefits a 10 percent rating, but no more, is granted for the left leg scar associated with the open reduction and internal fixation of his left femur fracture at all times during the pendency of the appeal. REMAND As to the claim for higher ratings for the left hip and knee disorders, the Board finds that none of the existing VA examinations included range of motion testing in both active and passive motion, weight-bearing, and non-weight-bearing situations as well as opinions as to the Veteran's range of motion during flare-ups as well as a comparison between these findings and the non-service connected right hip and knee. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). As such, the Board finds that another remand is necessary to provide the Veteran with a new VA examination to conduct the appropriate range of motion testing. While the appeal is in remand status, the AOJ should also obtain and associate with the record any outstanding VA and private treatment records. See 38 U.S.C.A. § 5103A(b) (West 2014). Accordingly, these issues are REMANDED to the AOJ for the following actions: 1. After obtaining authorizations from the Veteran, associate with the claims file any outstanding private treatment records. 2. Associate with the claims file all of the Veteran's post-September 2015 treatment records from the Bay Pines VA Medical Center. 3. Notify the Veteran and his representative that they can submit lay statements from the claimant and from other individuals who have first-hand knowledge of the problems caused by his left hip and knee disorders to include all problems with employment. Provide them a reasonable time to submit this evidence. 4. Schedule the Veteran for appropriate VA examinations to determine the nature and severity of his left hip and knee disorders from 2009. The claims file should be made available to and reviewed by the examiner and all necessary tests should be performed. All findings should be reported in detail. A. Range of Motion Studies: The examiner should identify all left hip and knee pathology found to be present since 2009. The examiner should conduct all indicated tests and studies, to include range of motion studies. Full range of motion testing must be performed where possible. The joints involved should be tested in both active and passive motion, in weight-bearing and non weight-bearing and compared to the non service-connected joint. 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 should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up and after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups and/or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). B. Other Findings: The examiner should state whether the left hip disability is productive of a flail joint. The examiner should state whether the left hip disability is productive of impairment of the femur with malunion with nonunion, without loose motion, and weight bearing preserved with aid of brace. The examiner should state whether the left hip disability is productive of a fracture of surgical neck of the femur with false joint. The examiner should state whether the left hip disability is productive of a fracture of shaft or anatomical neck of the femur with nonunion and loose of motion. The examiner should state whether the left hip disability is productive of any instability or subluxation and, if so, its severity. 5. Then adjudicate the appeal. If any benefit sought on appeal is not granted in full, furnish the Veteran a supplemental statement of the case (SSOC). The Veteran should be given an appropriate opportunity for response before returning the appeal 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). 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs