Citation Nr: 18140264 Decision Date: 10/02/18 Archive Date: 10/02/18 DOCKET NO. 15-39 900 DATE: October 2, 2018 ORDER Entitlement to an initial compensable evaluation for residual surgical scar of the right knee is denied. REMANDED Entitlement to an initial disability rating in excess of 10 percent for right knee osteoarthritis status post anterior cruciate ligament (ACL) tear repair is remanded. Entitlement to an initial disability rating in excess of 10 percent for residuals of a fracture of the left ankle is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected right knee osteoarthritis, left knee osteoarthritis, bilateral pes planus, and/or residuals of a fracture of the left ankle, is remanded. FINDING OF FACT During the appeal period, the Veteran's service-connected right knee residual surgical scar has been manifested by a single scar that is linear, affects the right knee, and covers an area less than 144 square inches. It has not affected the trunk or any other extremities; and it has not been unstable, painful, or associated with underlying soft tissue damage. CONCLUSION OF LAW The criteria for entitlement to an initial compensable evaluation for residual surgical scar of the right knee, have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.21, 4.118, Diagnostic Code 7805 (2017, August 13, 2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from January 1980 to January 1995. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in February 2012, July 2012, and September 2013. The February 2012 rating decision granted entitlement to service connection for right knee osteoarthritis and assigned an initial rating of 10 percent effective from March 28, 2011. This rating decision also granted entitlement to service connection for a right knee scar and assigned a noncompensable evaluation effective from March 28, 2011. Later in February 2012, the Veteran filed an increased rating claim for his right knee osteoarthritis. This claim was subsequently denied in a July 2012 rating decision. In an October 2012 notice of disagreement, the Veteran stated that he disagreed with the rating decisions dated in February 2012 and July 2012, to include his disability rating for right knee osteoarthritis. As the Veteran filed this notice of disagreement within one year of the February 2012 rating decision, the Board finds that his increased rating claim for right knee osteoarthritis is appropriately considered an "initial rating claim" stemming from the Veteran's original claim of service connection pursuant to Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that the Veteran was previously represented by the American Legion. He later revoked their representation in a September 2012 statement. In October 2012, the Veteran appointed the Disabled American Veterans as his representative. However, he subsequently revoked their representation in a March 2014 statement. The Veteran has not yet appointed a new representative. The record reflects that an October 2015 statement of the case adjudicated the Veteran’s increased rating claims for his right knee, right knee scar, and left ankle disability; his service connection claim for a lumbar spine disorder; and his claim for a TDIU. In the Veteran’s VA Form 9, he limited his appeal to the increased rating and service connection claims. Nevertheless, the AOJ continued to adjudicate his claim for a TDIU in a March 2017 supplemental statement of the case. Therefore, the Board accepts his claim for a TDIU as being on appeal. See Percy v. Shinseki, 23 Vet. App. 37, 43-44 (2009). The record also shows that after the March 2017 supplemental statement of the case, additional VA Vocational Rehabilitation and Employment records were associated with the claims file. The Veteran has not provided a waiver of the AOJ's initial consideration of this evidence. 38 C.F.R. § 20.1304(c). However, this evidence is either duplicative of the previous evidence of record or unrelated to the Veteran's increased rating claim for his right knee scar. Thus, there is no prejudice to the Veteran in adjudicating this issue. As to the other issues on appeal, the AOJ will have the opportunity to review this evidence upon remand. I. Duties to Notify and Assist The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an initial compensable evaluation for residual surgical scar of the right knee. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service connected disorder. 38 U.S.C. § 1155. The evaluation of a service-connected disorder requires a review of a veteran's entire medical history regarding that disorder. 38 U.S.C. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in an appeal from an initial disability rating was not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson, 12 Vet. App. at 126-27; Hart v. Mansfield, 21 Vet. App. 505 (2007). Such separate disability ratings are known as staged ratings. The Veteran’s right knee scar is rated under 38 C.F.R. § 4.118, Diagnostic Code 7805. He has been assigned an initial noncompensable evaluation effective from March 28, 2011. The Board notes that on July 13, 2018, VA published a final rule amending its regulations on skin disabilities. 83 FR 32592 (July 13, 2018). The effective date of the final rule is August 13, 2018. However, for this final rule, VA's intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran filed his March 2011 claim before the August 13, 2018 effective date, the Board will consider whether either the old or new rating criteria is more favorable to the Veteran. Under the old rating criteria, Diagnostic Code 7805 provided that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). The Board notes that this diagnostic code is largely unchanged under the new amendments apart from the replacement of the phrase “(including linear scars)” with “and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804.” 38 C.F.R. § 4.118, Diagnostic Code 7805 (August 13, 2018). The pre-amended Diagnostic Code 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2017). In contrast, the amended Diagnostic Code 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (August 13, 2018). Both the old and new criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic 7801. Note (1) to the pre-amended Diagnostic Code 7801 stated that a deep scar is one associated with underlying soft tissue damage. Prior to August 13, 2018, Diagnostic Code 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, Diagnostic 7802 (2017). The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (August 13, 2018). Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. Under both the old and new rating criteria, Diagnostic Code 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating for is assigned for one or two such scars. A 20 percent rating is warranted for three to four scars, and a 30 percent disability rating is assigned for five or more scars. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, Diagnostic 7804. The Veteran’s right knee disability was evaluated during a January 2012 VA examination. The examiner stated that the Veteran had a scar related to this disability. However, the scar was not painful and/or unstable, and the total area was not greater than 39 square centimeters (6 square inches). No other description of the scar was documented. In March 2013, a VA treatment record reported that the Veteran had a long midline surgical scar on his right lower extremity. In April 2013, a VA treatment record stated that the Veteran had anesthesia of the skin adjacent to the surgical scar anteriorly. The surgical scar was noted be 11 centimeters and midline, overlying the patellar tendon on the right. In September 2013, the Veteran was provided a VA examination related to scars. The examiner noted that he had a superficial scar on the anterior knee of the right lower extremity. It had resulted from an ACL repair in 1990. The maximum width was 0.4 centimeters, and the maximum length was 15 centimeters. There was no skin breakdown over the scar, and the Veteran reported having no pain. In addition, there was no evidence of inflammation, edema, keloid formation, or any other disabling effects. The Veteran was provided with another VA examination that included findings for the right knee in July 2015. The examiner noted that the Veteran’s right knee had scars that measured 11 centimeters, 1 centimeter, 1 centimeter, and 1 centimeter. He noted that they were all linear. During a subsequent VA examination concerning the Veteran’s right knee in May 2016, the examiner noted that a 6 inch, linear scar was present on the right knee. The scar was not painful or unstable, and it did not have a total area equal to or greater than 39 square centimeters (6 square inches). In light of the above evidence, the Board finds that the Veteran is not entitled to an initial compensable evaluation for his right knee residual surgical scar. Although the findings from the July 2015 VA examiner suggested that the Veteran had more than one linear scar on the right knee, the examination reports from both before and after the July 2015 VA examination indicate that only one linear scar was present that measured approximately 6 inches in length. See September 2013 VA examination, May 2016 VA examination. The March 2013 VA treatment record also reflects that a single, long, midline scar was present. In light of the inconsistency with the other evidence of record, the Board finds that the July 2015 VA examiner’s findings on this matter have diminished probative value. The most probative evidence of record shows that the Veteran had a single scar that was linear, and there has been no suggestion that it affected the trunk or any extremities other than the right lower extremity. There has also been no indication that the Veteran’s scar was associated with underlying soft tissue damage. The September 2013 VA examiner noted that it was a superficial scar. Consequently, a disability rating under Diagnostic Code 7801 and 7802 for nonlinear scars and/or scars associated with soft tissue damage is not warranted. Although the amended Diagnostic Code 7802 provides disability ratings for scars not associated with soft tissue damage, a compensable disability rating is still not warranted as the Veteran’s scar did not have a total area of at least 144 square inches. In addition, as the VA examination findings from this period reflect that the scar was neither painful nor unstable, a disability rating under Diagnostic Code 7804 is not indicated. Furthermore, Diagnostic Code 7800 is not applicable in this case as it relates to scars or other disfigurement of the head, face, or neck. The Board also notes that the evidence from the appeal period fails to reflect that the scar had any other disabling effects to warrant consideration under another Diagnostic Code as directed by Diagnostic Code 7805. Although the Veteran reported the neurological symptom of anesthesia in April 2013, no sensory deficits in relation to the scar were noted during any subsequent VA examinations from the appeal period. Following this report, the September 2013 VA examiner specifically determined that there were no additional disabling effects from the right knee scar. In addition, neurological findings from VA examinations of the lumbar spine in May 2013 and September 2013 reflect that the Veteran had no sensory deficits in the right thigh/knee, and no symptoms of radiculopathy in the right lower extremity. Therefore, ratings for incomplete paralysis of the various nerve systems are not applicable in this case. 38 C.F.R. § 4.124a. Consequently, the evidence demonstrates that the Veteran is not entitled to an initial compensable disability rating for his right knee residual surgical scar. Although the Veteran is entitled to the benefit of the doubt where evidence is in approximate balance, the benefit of the doubt doctrine is inapplicable where, as here, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND 1. Entitlement to an initial disability rating in excess of 10 percent for right knee osteoarthritis status post ACL tear repair is remanded. The Veteran’s right knee disability was last evaluated during a May 2016 VA examination. At that time, the examiner stated that there was no pain noted during range of motion testing, and no objective evidence of crepitus. There was also no documented leg length discrepancy. Following the examination, the Veteran’s VA treatment records noted that the right knee had tenderness upon range of motion, and the Veteran reported experiencing crepitus. See VA treatment records dated in May and June of 2016. The Veteran has also since asserted that his right leg is shorter than his left leg as a result of his right knee disability. See December 2017 Statement in Support of Claim. As the record indicates that there may have been a material change in the Veteran's symptoms since the last VA examination, the Board finds that a remand is warranted to obtain a contemporaneous VA examination for the Veteran's right knee osteoarthritis status post ACL tear repair. See Snuffer v. Gober, 10 Vet. App. 400 (1997). 2. Entitlement to an initial disability rating in excess of 10 percent for residuals of a fracture of the left ankle is remanded. The Veteran's left ankle disability was last evaluated during an August 2014 VA examination. However, the examiner did not test for pain in weight-bearing or passive motion. 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. Correia v. McDonald, 23 Vet. App. 158, 168-69 (2016). The Board therefore finds that a remand is needed to obtain an adequate VA examination to evaluate the Veteran's residuals of a left ankle fracture under the appropriate rating criteria. Barr v. Nicholson, 21 Vet. App. 303 (2007). 3. Entitlement to a TDIU is remanded. In addition, the Veteran’s claim for a TDIU is inextricably intertwined with the increased rating claims being remanded herein. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Thus, consideration of entitlement to a TDIU must be deferred pending adjudication of the Veteran's claims for an increased evaluation. 4. Entitlement to service connection for a lumbar spine disorder, to include as secondary to service-connected right knee osteoarthritis, left knee osteoarthritis, bilateral pes planus, and/or residuals of a fracture of the left ankle, is remanded. In relation to the Veteran’s service connection claim for a lumbar spine disorder, he was provided with VA examinations and medical opinions that addressed theories of direct and secondary service connection. In September 2015, a VA examiner gave a negative opinion for direct service connection. The examiner noted that the Veteran’s current low back issues were not related to the low back symptoms that had been present during service. While his current low back issues were due to degenerative changes in the lumbar spine, his in-service symptoms were due to acute/subacute muscle/myofascial injuries. Moreover, these injuries would not predispose the Veteran to develop his current symptoms or diagnosis of lumbar degenerative joint disease. However, the examiner did not address the potential significance of Veteran’s report of continuous low back pain since service. See August 2013 Statement; September 2015 VA examination. Regarding secondary service connection, a VA examiner provided a negative opinion in May 2013 as to whether the Veteran’s lumbar spine disorder was secondary to his left ankle or right knee disability. However, the Veteran has also suggested that his lumbar spine disorder is secondary to his left knee disability. See August 2013 Statement. In addition, a July 1986 STR stated that the Veteran complained of back pain, had pronation of both feet, and his postural symptoms were possibly to due to hyperpronation. As the Veteran is service-connected for bilateral pes planus, the Board finds that the record has also raised the theory that his lumbar spine disorder is secondary to his bilateral foot disability. Based on the foregoing, the Board finds that an additional medical opinion should be obtained that addresses the Veteran’s contentions and all relevant theories of entitlement. Barr, 21 Vet. App. 309 (2007); Szemraj v. Principi, 357 F.3d 1370, 1375-76 (Fed. Cir. 2004). The matters are 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, left ankle disability, and lumbar spine disorder. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also secure any outstanding, relevant VA medical records, to include any treatment records from the Wm. Jennings Bryan Dorn VA Medical Center, dated since June 2016. 2. After completing the preceding development in paragraph 1, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his right knee osteoarthritis status post ACL tear repair. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected disability. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the right knee osteoarthritis status post ACL tear repair under the rating criteria. In particular, the examiner should provide the range of motion in degrees and test the range of motion in (1) active motion, (2) passive motion, (3) weight-bearing, and (4) nonweight-bearing. This testing must be conducted for both the joint in question and any paired 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 this is so. The examiner should also indicate whether there whether there is any ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion to the joint; or, symptomatic removal of semilunar cartilage. He or she should additionally address whether the Veteran has recurrent subluxation or lateral instability, and if so, comment as to whether such symptomatology is slight, moderate, or severe. The examiner should further state whether there is any malunion or nonunion of the tibia and fibula. The examiner must also clearly state whether the Veteran has a leg length discrepancy. If such a discrepancy is identified, the examiner must provide an opinion as to whether any leg discrepancy was caused by the Veteran's service-connected right knee osteoarthritis status post ACL tear repair. If so, the examiner must provide all information required for rating purposes, to include, measurement of both lower extremities from the anterior superior iliac spine to the internal malleolus of the tibia. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including limitation of motion) due to these factors. In addition, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. In this regard, even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffers during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the Veteran's lay information-or explain why he or she could not do so. 3. After completing the preceding development in paragraph 1, the Veteran should be afforded a VA examination to ascertain the current severity and manifestations of his residuals of a fracture of the left ankle. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file and to comment on the severity of the Veteran's service-connected disability. It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should report all signs and symptoms necessary for rating the residuals of a fracture of the left ankle under the rating criteria. In particular, the examiner should provide the range of motion in degrees and test the range of motion in (1) active motion, (2) passive motion, (3) weight-bearing, and (4) nonweight-bearing. This testing must be conducted for both the joint in question and any paired 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 this is so. The examiner should also indicate whether there is any ankylosis; malunion of the os calcis or astragalus; or, evidence of an astragalectomy. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability (including limitation of motion) due to these factors. In addition, based on examination results and the Veteran's documented history and assertions, the examiner should indicate whether, and to what extent, the Veteran experiences functional loss due to pain and/or any of the other symptoms noted above during flare-ups and/or with repeated use; to the extent possible, the examiner should express any such additional functional loss in terms of additional degrees of limited motion. In this regard, even if the Veteran is not experiencing a flare-up at the time of the examination, the examiner must elicit relevant information as to the Veteran's flares or ask him to describe the additional functional loss, if any, he suffers during flares and then estimate the Veteran's functional loss due to flares based on all the evidence of record-including the Veteran's lay information-or explain why he or she could not do so. 4. After completing the preceding development in paragraph 1, obtain a VA medical opinion from a qualified examiner on the etiology of the Veteran's lumbar spine disorder. The claims file must be made available to the examiner. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, and assertions. A clear explanation for all opinions based on specific facts for the case as well as relevant medical principles is needed. If an examination is deemed necessary, one must be provided. The Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptoms. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner must identify all current lumbar spine disorders. For each identified diagnosis, the examiner must provide an opinion as to the following questions: (a) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested during, or is otherwise related to, the Veteran's active service. (b) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was caused by the Veteran’s service-connected right knee osteoarthritis, left knee osteoarthritis, bilateral pes planus, and/or residuals of a fracture of the left ankle. (c) Whether it is at least as likely as not (a 50 percent or greater probability) that the disorder was aggravated by the Veteran’s service connected right knee osteoarthritis, left knee osteoarthritis, bilateral pes planus, and/or residuals of a fracture of the left ankle. In providing an opinion, the examiner should address the following: (1) the Veteran’s report from the September 2015 VA examination that he has continued to experience low back pain since service; and (2) the July 21, 1986 service treatment record that noted the Veteran’s complaint of left ankle, knee, and back pain; the fact that he had pronation of both feet; as well as an assessment that the Veteran was status post ankle fracture in 1982, and the Veteran’s postural symptoms were possibly due to hyperpronation. 5. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal, including the inextricably intertwined issue of entitlement to a TDIU. If the benefit sought is not granted to the Veteran’s satisfaction, send the Veteran a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Spragins