Citation Nr: 18156298 Decision Date: 12/07/18 Archive Date: 12/07/18 DOCKET NO. 17-41 276 DATE: December 7, 2018 ORDER A compensable evaluation for a post-operative scar of the distal left leg is denied. REMANDED An evaluation in excess of 10 percent for residuals of a fracture of the left tibia with tenosynovitis is remanded. FINDING OF FACT The Veteran’s post-operative scar of the distal left leg has been unpainful, stable, not located on the head, face or neck, and has not covered an area greater than 6 square inches. CONCLUSION OF LAW The criteria for a compensable rating for post-operative scar of the distal left leg have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.118, Diagnostic Code 7805 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1956 to November 1958 and September 1961 to September 1965. The Veteran is seeking an increased evaluation for his service-connected scar of the distal left leg. A compensable evaluation for a post-operative scar of the distal left leg is denied. 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 separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part IV (2017). If two evaluations are potentially applicable, 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 reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Veteran’s scar has been rated throughout the appeal period under Diagnostic Code 7805 (Scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804). The July 2017 rating decision on appeal granted entitlement to service connection for the scar and assigned a 0 percent (noncompensable) disability rating, effective December 14, 2013. Diagnostic Code 7805 states to “[e]valuate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code.” During the November 2018 VA examination, the examiner observed a post-operative scar of the distal left leg. The scar measured 18 centimeters in length and 0.4 centimeters in width (i.e., not covering an area greater than 6 square inches). The scar was characterized as well-healed and nontender in addition to unpainful, stable, and not located on the head, face or neck. As noted, the Veteran’s scar is rated under Diagnostic Code 7805, which instructs to “[e]valuate any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code.” There is no evidence of record that indicates the Veteran’s scar resulted in any disabling effects as the November 2018 VA examination noted it to be unpainful, stable, well-healed, and nontender. The Board considered other potentially applicable diagnostic codes for rating the Veteran’s postoperative scars of the distal left leg but finds no higher rating is assignable under any other diagnostic code. To that end, his scars have been asymptomatic during the entire pendency of the claim, thus a compensable rating is not warranted under Diagnostic Code 7804 (scar(s), unstable or painful). Moreover, the scar does not exceed six square inches to warrant application of Diagnostic Code 7801 (scars, other than head, face, or neck, that are deep and nonlinear) or Diagnostic Code 7802 (scars, not of the head, face, or neck, that are superficial and nonlinear) because the scar does not exceed 144 square inches. Based on the foregoing, the Veteran is not entitled to a compensable rating for his post-operative scar of the distal left leg. As detailed above, there is no evidence that the Veteran’s scar is deep and nonlinear, unstable or painful, or that the affected area is greater than 6 square inches. In summary, the Board finds the evidence does not support the assignment of a compensable rating for his post-operative scar of the distal left leg at any time during pendency of the claim. See Fenderson, 12 Vet. App. 119; Hart, 21 Vet. App. 505. Accordingly, the appeal is denied. REASONS FOR REMAND An evaluation in excess of 10 percent for residuals of a fracture of the left tibia with tenosynovitis is remanded. Regarding the Veteran’s claim of a rating higher than 10 percent for residuals of a fracture of the left tibia with tenosynovitis, a new VA examination must be provided that complies with Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, 29 Vet. App. 26 (2017). Correia mandates that certain examinations include the testing described in 38 C.F.R. § 4.59 (2017), or an explanation as to why such testing is not warranted or not possible. Sharp requires VA examiners to obtain information from the Veteran as to the severity, frequency, and duration of flare-ups, as well as precipitating and alleviating factors, and the extent of functional impairment. It also requires that VA examiners estimate the additional loss of range of motion during a flare-up based on all procurable information from the record, as well as the Veteran’s own statements. If an estimate cannot be provided without resorting to speculation, it must be clear whether this is due to a lack of knowledge among the medical community at large, or insufficient knowledge of the specific examiner. For example, the March 2016 right hip exam does not provide information on testing for pain on both active and passive motion or in weightbearing and non- weightbearing. Furthermore, flare-ups were noted, but there are no estimates for the additional loss of range of motion during a flare-up. While the examiner noted it was not possible to express in exact degrees of ROM loss without resorting to speculation, it is unclear why the additional ROM loss could not be estimated based on, for example, the Veteran’s own statements. The matter is REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records. 2. Schedule the Veteran for an appropriate VA examination to assess the nature and current level of severity of his service-connected left tibia disability. The Veteran’s claims file, including a copy of this REMAND, must be made available to and reviewed by the examiner in conjunction with the examination. The examiner must note in the examination report that the evidence in the claims file has been reviewed. The appropriate Disability Benefits Questionnaire should be filled out. In the examination report, the examiner must include all the following: (a.) Active range of motion testing results. (b.) Passive range of motion testing results. (c.) Weightbearing range of motion testing results. (d.) Non-weightbearing range of motion testing results. If the examiner is unable to conduct one or more of the above tests or finds that it is unnecessary, the examiner must provide an explanation. In any event, the type of test performed (i.e. active or passive, weightbearing or nonweightbearing), must be specified. The examiner must elicit as much information as possible from the Veteran regarding the severity, frequency, and duration of flare-ups, their effect on functioning, and precipitating and alleviating factors. If the examination is not performed during a flare-up, the examiner must provide an estimate of additional loss of range of motion during a flare-up. If the examiner is unable to provide an estimate of additional loss of motion during a flare-up, the examiner must provide a specific explanation as to why the available information, including the Veteran’s own statements, is not sufficient to make such an estimate. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Denton, Buck