Citation Nr: 18154837 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 13-15 122 DATE: November 30, 2018 ORDER A compensable rating for residual scar, status post anterior cruciate ligament (ACL) reconstruction and medial meniscus repair, right knee, is denied. REMANDED A rating in excess of 10 percent for right knee ostearthritis, status post ACL reconstruction and medial meniscus repair, is remanded. A compensable rating for right knee limitation of flexion prior to March 2, 2017, is remanded. A rating in excess of 10 percent for right knee limitation of flexion from March 2, 2017, is remanded. A rating in excess of 10 percent for degenerative disc disease (DDD), C4-C5, C5-C6 with strain, is remanded. A compensable rating for right upper extremity prior to March 2, 2017, is remanded. A rating in excess of 20 percent for right upper extremity radiculopathy from March 2, 2107, is remanded. A compensable rating for left upper extremity prior to March 2, 2017, is remanded. A rating in excess of 20 percent for left upper extremity radiculopathy from March 2, 2107, is remanded. FINDING OF FACT The Veteran’s right knee scars are not painful or unstable and do not result in any disabling effects. CONCLUSION OF LAW The criteria for a compensable rating for right knee scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Codes (DCs) 7800-7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2002 to January 2007. The case is on appeal from a September 2012 rating decision. In February 2017, the Board remanded the claims for increased ratings for a cervical spine disorder, right knee instability and right knee scar for further development. Subsequently, in a May 2017 rating decision, the RO awarded “service connection” and a 10 percent rating for right knee limitation of flexion, as well as 20 percent ratings for right and left upper extremity radiculopathy associated with the cervical disability. The award of service connection for these three disorders resulted in separate ratings for symptoms that were considered part and parcel of, or associated with, the service-connected cervical spine and right knee disabilities. Thus, the Board finds that these issues are also before the Board on appeal. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Legal Criteria Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. For scars, DC 7804 provides a 10 percent rating for 1 or 2 scars that are unstable or painful. A 20 percent rating is warranted for 3 to 4 scars that are unstable or painful and a 30 percent disability rating assigned for 5 or more scars that are unstable or painful. Note (1) to DC 7804 provides 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, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118. DC 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. A 20 percent rating requires an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A 30 percent rating requires an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.). A 40 percent rating requires an area or areas of 144 square inches (929 sq. cm.) or greater. A qualifying scar is one that is nonlinear and deep, and is not located on the head, face, or neck. Note (1) to DC 7801 provides that a deep scar is one associated with underlying tissue damage. DC 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 sq. cm.) or greater warrant a 10 percent evaluation. Note (1) to DC 7802 provides that a superficial scar is one not associated with underlying soft tissue damage. Note (2) to DC 7802 provides that if multiple qualifying scars are present, a separate evaluation is assigned for each affected extremity based on the total area of the qualifying scars that affect that extremity. DC 7805 provides that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DCs 7800-7804 under an appropriate diagnostic code. Analysis The Veteran seeks a compensable rating for his right knee scars related to in-service surgeries to his ACL and meniscus in 2002. The Veteran was afforded an August 2012 VA examination in which the examiner diagnosed him with right knee scars, status post right knee surgeries from 2002. The examiner indicated the Veteran has five scars on the right knee, approximately 11.25 centimeters in total area. He concluded the scars are not painful or unstable, and do not cause functional or other impairment. The Veteran’s claim came before the Board in February 2017 and as noted above, was remanded for further development. He was afforded a March 2017 VA examination in which the examiner indicated the Veteran’s right knee scars are not painful or unstable and cause no limitation of function. Upon review of all the evidence of record, the Board finds that the right knee scars do not warrant a compensable rating under any applicable diagnostic code at any time during the appeal period. The scars are not unstable or painful on examination, and do not result in limitation of function in the affected area. The Board further finds the Veteran’s right knee scars do not result in any disabling effects to warrant a compensable rating under another appropriate diagnostic code in accordance with DC 7805. Furthermore, other musculoskeletal symptoms involving the right knee are addressed by the other right knee issues in the remand section. The assigned zero percent rating is therefore appropriate. Accordingly, the preponderance of the evidence is against a compensable rating for the right knee scars. Therefore, the benefit-of-the-doubt doctrine does not apply and a higher rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.   REASONS FOR REMAND 1. A rating in excess of 10 percent for right knee ostearthritis, status post ACL reconstruction and medial meniscus repair. 2. A compensable rating for right knee limitation of flexion prior to March 2, 2017. 3. A rating in excess of 10 percent for right knee limitation of flexion from March 2, 2017. Following the February 2017 Board remand, the Veteran was afforded a March 2017 VA examination in which he was diagnosed with prior ACL and meniscal tears, osteoarthritis and infrapatellar cutaneous nerve neuritis. Examination showed range of motion limited to 130 degrees with functional loss reported as limited walking, standing, squatting, jogging, jumping, lifting and carrying. He indicated objective findings support no pain on both passive and active motion, and in both weight bearing and non-weight bearing settings. Instability was noted and flare-ups were reported by the Veteran, including severe pain, stiffness and weakness. The examiner indicated the examination was medically consistent with the Veteran’s statements regarding functional loss during flare-ups. However, he stated he was unable to opine without resorting to speculation whether pain, weakness, fatigability or incoordination significantly limit the Veteran’s functional ability due to flares. The Board finds that despite the March 2017 VA examination, a remand is required for a new VA examination to fully evaluate the severity of the Veteran’s service-connected right knee disorders. The Board finds the March 2017 examiner’s opinion fully satisfied the standard set forth in Correia v. McDonald, 28 Vet. App. 158 (2016) to test the joint for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and with the range of the opposite undamaged joint. However, the examiner did not provide adequate rationale with regard to potential additional functional loss during the reported flare-ups of the Veteran’s right knee. Thus, on remand the reported flare-ups should be fully addressed by the VA examiner and he or she should “estimate the functional loss that would occur during flares.” See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). 4. A rating in excess of 10 percent for degenerative disc disease (DDD), C4-C5, C5-C6 with strain. 5. A compensable rating for right upper extremity prior to March 2, 2017. 6. A rating in excess of 20 percent for right upper extremity radiculopathy from March 2, 2107. 7. A compensable rating for left upper extremity prior to March 2, 2017. 8. A rating in excess of 20 percent for left upper extremity radiculopathy from March 2, 2107. With regard to the Veteran’s cervical spine disorder, the March 2017 VA examiner diagnosed him with degenerative arthritis of the spine and intervertebral disc syndrome. The Veteran reported progressive pain, stiffness and weakness. Range of motion testing revealed flexion to 40 degrees with no pain on passive and active motion, or in weight bearing and non-weight bearing settings. The Veteran reported flare-ups and the examiner concluded he was unable to opine without resorting to speculation whether pain, weakness, fatigability or incoordination significantly limit the Veteran’s functional ability due to flares. Therefore, a new VA examination is necessary to fully evaluate the severity of the Veteran’s service-connected cervical disability. While the March 2017 examiner’s opinion was adequate regarding the standard set forth in Correia, he did not provide adequate rationale with regard to potential additional functional loss during the reported flare-ups. On remand, the Veteran’s reported flare-ups should be fully addressed by the examiner, including the estimated functional loss during such flares. See Sharp, 29 Vet. App. at 33. Moreover, as the Veteran’s cervical disability is being reexamined on remand, his associated bilateral upper extremity radiculopathy disabilities are intertwined and will also be reexamined. The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to determine the nature and severity of his service-connected right knee disabilities. The examiner should estimate the functional loss that would occur during flares. If this information cannot be provided, it should be thoroughly explained why. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and severity of his service-connected cervical disability, as well as his associated bilateral upper extremity radiculopathy disabilities. The examiner should estimate the functional loss that would occur during flares. If this information cannot be provided, it should be thoroughly explained why. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel