Citation Nr: 18152650 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-39 506 DATE: November 23, 2018 ORDER Entitlement to an initial compensable rating for scar associated with right knee degenerative joint disease (DJD) is denied. REMANDED Entitlement to service connection for residuals of traumatic brain injury (TBI), to include blurry vision, severe headache, short-term memory loss, and tremors, is remanded. FINDING OF FACT The preponderance of the evidence indicates that the Veteran’s right knee scar has not been unstable, painful, at least 6 square (sq.) inches (39 sq. centimeters) in size, or otherwise disabling. CONCLUSION OF LAW The criteria for a compensable disability rating for scar associated with right knee degenerative joint disease have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.118, Diagnostic Codes 7801 to 7805 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1983 to March 1991. Entitlement to an initial compensable evaluation for scar associated with right knee DJD. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). The percentage ratings in the Rating Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability. Diagnostic Codes (DCs) are assigned by the rating officials to individual disabilities. DCs provide rating criteria specific to a particular disability. If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies. See 38 C.F.R. § 4.7 (2018). When a question arises as to which of two ratings apply under a particular DC, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. See id. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of a veteran. 38 C.F.R. § 4.3 (2018). In deciding claims, it is the Board’s responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a) (2012). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). The Veteran contends that his right knee scar, currently rated as noncompensable pursuant to 38 C.F.R. § 4.118, DC 7805, warrants a compensable rating. DC 7805 provides that scars and other effects of scars are to be evaluated under DCs 7800, 7801, 7802, and 7804, or under another appropriate code if such disabling effects are not considered under DCs 7800, 7801, 7802, or 7804. DC 7800 provides criteria for scars or disfigurement of the head, face, or neck, and is therefore inapplicable to the Veteran’s scar on the right knee. DC 7801 provides ratings for burn or other scars (not on the head, face, or neck) that are deep and nonlinear. Deep and nonlinear scars involving an area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm.) are rated 10 percent. Scars in an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) are rated 20 percent. Scars in an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.) are rated 30 percent. Scars in an area or areas of 144 square inches (929 sq. cm.) or greater are rated 40 percent. 38 C.F.R. § 4.118. Note (1) specifies that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801. DC 7802 provides a maximum 10 percent rating for a burn or other scars that are superficial and nonlinear involving an area of 144 square inches (929 sq. cm) or greater. Note (1) provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802. DC 7804 provides a 10 percent rating for one or two scars that are unstable or painful, a 20 percent rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable of painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. 38 C.F.R. § 4.118, DC 7804. Under DC 7805, disabling effects of scars not considered in a rating under DCs 7800 to 7804 are evaluated under another appropriate DC(s). 38 C.F.R. § 4.118, DC 7805. In every instance where the schedule does not provide a 0 percent rating for a DC, a noncompensable or 0 percent rating will be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2018). Initially, the Board notes that effective August 13, 2018, VA revised the criteria for the evaluation of skin disabilities. 83 Fed. Reg. 32,592-601 (July 13, 2018). These new regulations apply to claims that were pending on August 13, 2018 (such as here), if the new regulations are more favorable to the Veteran’s case. Pertaining to this claim, DC 7801 and 7802 were modified but still retain the same surface area requirements for ratings. The criteria for DC 7804 was not affected and DC 7805 underwent non-substantive changes. In an October 2013 notice of disagreement, the Veteran asserted a compensable evaluation is warranted for multiple scars on his right knee because his entire knee is numb due to not having nerves. He added that he would not know if he cut his knee if he was not looking at it and believes that the scars should be considered disabling. In an August 2016 substantive appeal (VA Form 9), the Veteran made similar contentions and added that the scar on his right knee was not painful, but was numb and limited his motion. The Veteran was provided VA examinations of his right knee scar in July 2013 and July 2016. The July 2013 examination report shows that the Veteran’s surgical scars on the right knee were nontender and stable. Specifically, there was a 10.5 cm scar on the right anterior knee; a 4 cm scar in the inferomedial right knee; and two less than 0.5 cm scars on the medial side of the right knee. The examiner noted that all scars were consistent with surgical procedures on the right knee, were stable, nontender, and did not limit the Veteran’s motion or function. Additionally, the examiner answered “no,” when asked if any of the scars were painful and/or unstable, or the total area of all related scars greater than 39 square cm (6 square inches). In July 2016, the examiner noted a right knee scar measuring 10.4 cm in length and 0.3 cm in width. The examiner noted the prior findings from the July 2013 examination report. The examiner then stated “no,” when asked if the Veteran’s scar was painful and/or unstable, or had a total area of greater than 39 square cm (6 square inches). The Board finds that throughout the entire appeal period, the evidence of record does not support a compensable rating under 38 C.F.R. § 4.118, DC 7801-7805, even when considering both the old and revised criteria. Specifically, a compensable rating is not warranted as the evidence is against finding that the Veteran’s scar is deep and nonlinear involving an area of at least 6 sq. inches (DC 7801); superficial and nonlinear involving an area of 144 sq. inches (DC 7802); unstable or painful (DC 7804); or is otherwise disabling (DC 7805). The Board acknowledges the Veteran’s assertion that his knee is numb. Nevertheless, the evidence of record does not indicate that symptom is attributable to his scars. To the contrary, VA and private treatment records from August 2015, October 2015 and December 2015 indicate that the Veteran had numbness in “most of the knee” and was not limited to his scar areas. Likewise, the July 2016 VA examiner noted the Veteran’s report of numbness in most of his right knee, but did not relate that finding to the Veteran’s scars. As the evidence indicates that the Veteran’s numbness has not been attributed to his knee scars and that his numbness is not limited to his scar areas, but encompasses most of his right knee, the Board finds the numbness reported by the Veteran does not warrant a compensable rating. Additionally, to the extent that the Veteran asserts that he experiences limitation of motion due to his scars, the Veteran is in receipt of service-connection for the underlying right knee disability at a 10 percent disability rating, effective March 27, 2012, the same effective date as the right knee scar. Accordingly, that rating has contemplated any such functional impairment. As the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt rule is not for application. See 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). REASONS FOR REMAND Entitlement to service connection for residuals of traumatic brain injury (TBI), to include blurry vision, severe headache, short-term memory loss, and tremors, is remanded. The Board must remand the Veteran’s service connection claim for residuals of TBI to afford him a new VA examination. Specifically, the Veteran underwent a VA examination in July 2013, which was conducted by a staff physician with a designation of “medical doctor” or “M.D.” However, VA’s Adjudication Procedures Manual stipulates that an initial TBI examination must be conducted by a physiatrist, psychiatrist, neurologist, or neurosurgeon. See M21-1, III.iv.3.D.2.j. Furthermore, in an October 2013 notice of disagreement, the Veteran asserted that the VA examiner did not address his additional residuals of blurry vision, severe headache, and short-term memory loss. He added that if an additional examination was necessary, he felt it should be with a neurologist, not a general practitioner. In May 2016, VA’s Secretary granted equitable relief that permits VA to provide new initial TBI examinations to impacted claimants. Accordingly, the Board is remanding the issue to schedule the Veteran for a new examination. See 38 U.S.C. § 7107(f)(2) (2012). The matter is REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed TBI residuals. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain any updated VA treatment records. If any requested records are unavailable, the Veteran should be notified of such. 2. Schedule the Veteran for a TBI examination to determine the nature, extent and etiology, to be conducted by one of the four designated specialists (physiatrist, psychiatrist, neurologist, or neurosurgeon), as well as any other actions felt appropriate by the AOJ in conjunction with the Secretary’s grant of equitable relief for the Veteran’s residuals of TBI disability. Any indicated evaluations, studies, and tests deemed to be necessary by the examiner should be performed. The VA examiner’s attention is drawn to the following: • The Veteran asserts that he experienced a blow to the head while on active duty. He stated that he was admitted to Moody AFB Hospital for 3 days following the contusion and suffered momentary loss of consciousness, blurry vision, and a severe headache. He asserts that his short-term memory loss and tremors are a result of the head injury. See VBMS entry with document type, “VA 21-4138 Statement in Support of Claim,” receipt date 11/20/2012. • Of record are 1) the April 1986 abbreviated medical record; 2) November 2012 progress note from Dr. R. L. and a physician’s assistant with the initials K. B., who noted that the Veteran had a double cerebral concussion that might potentially be responsible for the tremors; and 3) “Tremor Fact Sheet” from NINDS which lists traumatic brain injury as a potential cause of tremors, referenced and submitted by the Veteran with his November 2012 statement. See VBMS entry with document type, “Medical Treatment Record – Government Facility,” receipt date 11/20/2012. • September 2013 and August 2016 letters from a private physician, Dr. K. M., who stated that she had been treating the Veteran in the neurology clinic and opined that the Veteran’s right-hand tremors are more likely than not a direct result of the traumatic brain injury. See 1) VBMS entry with document type, “Third Party Correspondence,” receipt date 10/10/2013; and 2) VBMS entry with document type, “Third Party Correspondence,” receipt date 08/15/2016. • Of record is the July 2013 Initial Traumatic Brain Injury (TBI) VA examination report and opinion. See VBMS entry with document type, “CAPRI,” receipt date 07/25/2013, on pgs. 10-15. While the Board has provided some of the relevant facts above, the examiner is to review the entire record, examine the Veteran if determined necessary, and then answer the following questions: a) Whether the Veteran has any currently diagnosed TBI residuals? b) If residuals of a TBI are diagnosed, it at least as likely as not (50 percent or greater likelihood) incurred in service, caused by, or otherwise related to service? c) Please address 1) the April 1986 abbreviated medical record; 2) November 2012 progress note from Dr. R. L. and a physician’s assistant with the initials K. B; 3) “Tremor Fact Sheet” from NINDS; and 4) September 2013 and August 2016 opinions from Dr. K. M. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that question(s). J. A. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Cheng, Associate Counsel