Citation Nr: 1809024	
Decision Date: 02/12/18    Archive Date: 02/23/18

DOCKET NO.  10-00 496	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Roanoke, Virginia


THE ISSUE

Entitlement to a separate disability rating for surgical scars of the left knee.


REPRESENTATION

Veteran represented by:	James G. Fausone, Attorney


ATTORNEY FOR THE BOARD

I. Warren, Associate Counsel 


INTRODUCTION

The Veteran served on active duty from November 1984 to May 1989.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from January 2009 and August 2010 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia.

In July 2016, the Board addressed several issues, and remanded for further development the issues of entitlement to service connection for hypertension, entitlement to service connection for an acquired psychiatric disability, to include depression, entitlement to an increased rating for sinusitis, entitlement to an increased rating for status post fracture of the left fifth metatarsal, and entitlement to a total disability rating based on individual unemployability (TDIU).  As these issues are still undergoing additional development, these claims are currently not ripe for Board consideration.

Additionally, the July 2016 Board decision denied entitlement to a separate disability rating for surgical scars of the left knee.  That decision was appealed to the United States Court of Appeals for Veterans Claims (Court).  In August 2017, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the Board's decision denying entitlement to a separate rating for a scar of the left knee, and remanding the matter to the Board for further proceedings consistent with the decision.  The remainder of the Board's decision was not disturbed.


FINDING OF FACT

The Veteran has surgical scars of the left knee that cause limited motion.


CONCLUSION OF LAW

The criteria for a separate rating for surgical scars of the left knee, which cause limited motion, have been met.  38 U.S.C. §§  1155, 5107 (West 2012); 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code (DC) 7805 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran contends that he is entitled to a separate disability rating for surgical scars of the left knee.  He currently has a 60 percent rating for status post left knee surgery with degenerative changes and residual scars.  In a decision issued in July 2016, the Board denied entitlement to a separate rating for surgical scars.  The Board determined that the criteria for a separate disability rating for surgical scars of the left knee were not met at any time during the period of the appeal because the Veteran's scars were not deep, nonlinear, unstable, painful, nor did they measure 144 square inches or greater.  See Diagnostic Codes (DCs) 7800-7804.

Service connection is usually warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby.  38 U.S.C. §§ 1110, 1131 (West 2012); 38 C.F.R. § 3.303(a) (2017).  Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury.  See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009).  Here, the Veteran is already service connected for his left knee.  Therefore, only an analysis of whether or not he is entitled to a separate disability rating for scars to his service-connected left knee is applicable.

Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his/her ability to function under the ordinary conditions of daily life, including employment, by comparing his/her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (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 evaluation; otherwise, the lower evaluation will be assigned.  38 C.F.R. § 4.7.  The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

In the August 2017 JMPR, the parties agreed that the Board did not provide an adequate statement of its findings and conclusions, and the reasons or bases for those findings and conclusions, on all material issues of fact and law presented on the record.  Specifically, the Veteran alleges that there was no adequate statement for why he was not entitled to a separate rating for surgical scars under DC 7805, other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802 and 7804, when physicians in January and February 2011 documented that the Veteran had keloid formations over his scars that were affecting motion in his left knee.

DC 7800 provides for a scar of the head, face or neck only, and therefore, does not apply to the Veteran's left knee scars.  38 C.F.R. § 4.118, DC 7800 (2017).

DC 7801 provides for scars not of the head, face or neck that are deep and nonlinear; DC 7802 provides for scars not of the head, face or neck that are superficial and nonlinear; and DC 7804 provides for scars that are unstable or painful.  38 C.F.R. § 4.118, DCs 7801-04 (2017).  There is no indication in the record that the Veteran's scars are deep, nonlinear, unstable or painful.

DC 7805 provides for other scars (including linear scars) to be evaluated by any disabling effects not considered in a rating provided under codes 7800-04 under an appropriate diagnostic code.  38 C.F.R. § 4.118, DC 7805 (2017).

A February 2011 private examiner indicated that the Veteran had traumatic knee arthritis status post total knee arthroplasty, with keloid formation and arthrofibrosis preventing motion gains with therapy.  Additionally, subsequent observation by an examiner in April 2011 noted the same keloid formation.  The Board accordingly finds that the Veteran is entitled to a separate disability rating for surgical scars that cause limited motion of the left knee.

For all the foregoing reasons, the Board finds that a separate rating for the Veteran's surgical scars of the left knee is warranted under DC 7805.


ORDER

Entitlement to a separate disability rating for surgical scars that limit motion of the left knee is granted.



_________________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs