Citation Nr: 18159903 Decision Date: 12/20/18 Archive Date: 12/20/18 DOCKET NO. 15-10 613 DATE: December 20, 2018 ORDER Entitlement to a rating in excess of 10 percent for bilateral knee scars is denied. REMANDED Entitlement to a rating in excess of 10 percent for degenerative joint disease of the right knee is remanded. Entitlement to a rating in excess of 10 percent for instability of the right knee is remanded. Entitlement to a rating in excess of 10 percent for status post repair recurrent patellar tendon rupture of the left knee is remanded. Entitlement to rating in excess of 10 percent for instability of the left knee is remanded. Entitlement to a rating in excess of 10 percent for hallux rigidus status post repair, degenerative joint disease, and history of plantar fascial tear of the right foot is remanded. Entitlement to service connection for right hip strain is remanded. Entitlement to service connection for depression is remanded. Entitlement to an earlier effective date for the award of a separate rating for status post repair recurrent patellar tendon rupture of the left knee is remanded. Entitlement to an earlier effective date for the award of a separate rating of for degenerative joint disease of the right knee is remanded. Entitlement to an earlier effective date for the award of service connection for residual bilateral knee scars is remanded. Entitlement to an earlier effective date for the evaluation for left knee instability is remanded. Entitlement to an earlier effective date for the evaluation for right knee instability is remanded. FINDING OF FACT The Veteran has two bilateral knee scars that are painful but not unstable. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for bilateral knee scars have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1973 to August 1977. He received the National Defense Service Medal and Air Force Longevity Service Award. The issue of secondary service connection for right foot scars has been raised by the record. This issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ); therefore, the Board does not have jurisdiction and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2017). Increased Rating for Bilateral Knee Scars The Veteran’s bilateral knee scars have been rated under the provisions of 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804. Under DC 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful; a 20 percent rating is assigned for three or four scars that are unstable or painful; and, a 30 percent rating is assigned for five or more scars that are unstable or painful. If one or more scars are both unstable and painful, an additional 10 percent should be added to the rating. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (1). In July 2015, the Veteran underwent a VA examination in connection with his knee scars. The Veteran has two surgical scars—one on each knee. Both scars were painful but neither was unstable. The right knee scar is vertical and measures 13 centimeters by 1 centimeter, and the left knee scar is horizontal and measures 20 centimeters by 2 centimeters. Both scars are well-healed, superficial and non-linear. The Veteran does not have other treatment records from this time that relate to his scars and has not alleged a worsening of his scars since the July 2015 examination. As a result, the Board finds that the weight of the evidence preponderates against a finding of entitlement to a rating in excess of 10 percent for bilateral knee scars. To receive a higher evaluation, the evidence must demonstrate at least three scars that are unstable or painful, or at least one scar that is both painful and unstable. The evidence does not demonstrate that the Veteran has at least three scars that are unstable or painful, or at least one scar that is both painful and unstable. Thus, a rating in excess of 10 percent for bilateral knee scars is not warranted. REASONS FOR REMAND Increased Ratings for Degenerative Joint Disease and Instability of the Right Knee, and Status Post Repair Recurrent Patellar Tendon Rupture and Instability of the Left Knee The July 2015 examination is internally inconsistent. The examiner indicated that the Veteran experiences recurrent patellar dislocation; however, the examiner then marked the severity as ‘none’ for both the right and the left knees. The Board finds that a new examination is needed to accurately assess the Veteran’s bilateral knee disabilities. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001). Increased Rating for Hallux Rigidus Status Post Repair, Degenerative Joint Disease, and History of Plantar Fascial Tear of the Right Foot The Veteran’s last examination for his right foot disability was in May 2014. Since that time, the Veteran has alleged a worsening of his disability. Specifically, in a September 2015 treatment note the Veteran indicated that he was experiencing increased foot pain and a “vibrating” sensation in his right foot. See October 2017 CAPRI, p. 55. Accordingly, the Veteran should be afforded a new examination to ascertain the current severity of his right foot disability. See Caffrey v. Brown, 6 Vet. App. 377, 381 (1994). Service Connection for Right Hip Strain The Veteran underwent an examination in March 2014 in connection with his claim for service connection for right hip strain. The examiner’s opinion is that the Veteran’s right hip disability is not caused by his service-connected knee disabilities because the Veteran’s right hip complaints predate his knee disabilities. However, the examiner did not address whether the knee disabilities have aggravated his right hip disability, and there is no medical opinion of record on whether the Veteran’s current right hip disability is directly related to his active duty service. Thus, an addendum opinion is needed to address whether the Veteran’s right hip disability onset during service, and whether such disability is aggravated by his service-connected bilateral knee and left hip disabilities. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013). Service Connection for Depression The July 2015 examiner concluded that the Veteran did not meet the diagnostic criteria for any psychiatric disability. However, the Veteran was diagnosed with other specified depressive disorder in June 2015. See October 2017 CAPRI, p. 75. Thus, on remand, the RO should obtain a new opinion that addresses whether the Veteran’s other specified depressive disorder is caused or aggravated by his service-connected disabilities. See McLendon v. Nicholson, 20. Vet. App. 79, 81 (2006). Earlier Effective Date Claims In the November 2015 notice of disagreement, the Veteran disagreed with the effective dates for the award of a separate rating for status post repair recurrent patellar tendon rupture of the left knee; the award of a separate rating of for degenerative joint disease of the right knee; the award of service connection for residual bilateral knee scars; the evaluation for left knee instability; and, the evaluation for right knee instability. November 2015 NOD, pp. 1-2. The RO never issued a statement of the case (SOC) for these claims. Accordingly, the Board takes jurisdiction over these claims for the sole purpose of remanding for issuance of an SOC. See Manlincon v. West, 12 Vet. App. 238, 240 (1999). The matters are REMANDED for the following action: 1. Provide the Veteran with an SOC concerning the earlier effective date claims for the award of a separate rating for status post repair recurrent patellar tendon rupture of the left knee; the award of a separate rating of for degenerative joint disease of the right knee; the award of service connection for residual bilateral knee scars; the evaluation for left knee instability; and, the evaluation for right knee instability. The SOC must instruct the Veteran to file a substantive appeal in response to the SOC to complete the steps necessary to perfect his appeal of these claims to the Board. 2. Schedule the Veteran for a VA examination to ascertain the current severity and manifestations of his bilateral knee disabilities. All indicated evaluations, studies and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion. The examiner should report all signs and symptoms necessary for evaluation of the Veteran’s bilateral knee disabilities under the rating criteria. In particular, the examiner should provide the range of motion in degrees for the Veteran’s knees. Range of motion test results should be provided for active motion, passive motion, weight-bearing, and nonweight-bearing. 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 so in the examination report. The examiner should further indicate whether there is any: ankylosis; dislocated semilunar cartilage with frequent episodes of locking, pain, and effusion into the joint; the symptomatic removal of semilunar cartilage; or, malunion or nonunion of the tibia and fibula. The presence of objective evidence of pain, excess fatigability, incoordination, and weakness should also be noted, as should any additional disability due to these factors. The examiner must also express an opinion on whether pain could significantly limit functional ability when the joint is used repeatedly over a period of time. To the extent possible, this determination should be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups. The examiner is asked to describe whether pain significantly limits functional ability during flares, and if so, the examiner must estimate range of motion during flares. If the examination does not take place during a flare, the examiner must glean information regarding the flares’ severity, frequency, duration, and functional loss manifestations from the veteran, medical records, and other available sources. Efforts to obtain such information must be documented. If there is no pain and/or no limitation of function, such facts must be noted in the report. 3. Schedule the Veteran for a VA examination to ascertain the current severity of his hallux rigidus status post repair, degenerative joint disease, and history of plantar fascial tear of the right foot. All indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion. The examiner should describe all symptomatology due to the Veteran’s right foot disability. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 4. Obtain an addendum opinion from the examiner that conducted the March 2014 examination that addresses whether the Veteran’s right hip disability had its onset during active duty service, or is aggravated by his service-connected knee and left hip disabilities. If the examiner is no longer available, the requested opinion should be rendered by another qualified examiner. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion. The examiner should offer comments, an opinion and a supporting rationale for the following: (a) Is it at least as likely as not (a 50 percent probability or greater) that the Veteran’s current right hip disability was incurred in or aggravated by his active duty service? (b) Is it at least as likely as not that the Veteran’s current right hip disability is aggravated by his service-connected bilateral knee and/or left hip disabilities? The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. 5. Schedule the Veteran for an examination to ascertain the etiology of the Veteran’s other specified depressive disorder. Any indicated evaluations, studies, and tests deemed necessary by the examiner should be accomplished. The entire claims file, to include a complete copy of this REMAND, should be made available to the examiner designated to provide an opinion, and the examination report should include a discussion of the Veteran’s documented medical history and assertions. (Continued on the next page)   The examiner should offer comments, an opinion and a supporting rationale that addresses whether it is at least as likely as not (a 50 percent probability or greater) that the Veteran’s other specified depressive disorder is caused or aggravated by his service-connected disabilities. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be considered. If the examiner rejects the Veteran’s reports, the examiner must provide a reason for doing so. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD W.V. Walker, Associate Counsel