Citation Nr: 1817231 Decision Date: 03/20/18 Archive Date: 03/30/18 DOCKET NO. 09-50 598 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to increases in the "staged" (10 percent prior to September 29, 2016 and 20 percent from that date) ratings assigned for a left knee scar. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD P. Poindexter, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from May 1981 to May 1984. This matter is before the Board of Veterans' Appeals (Board) on appeal from an April 2014 rating decision by the Roanoke, Virginia Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for left knee scar, rated 0 percent, effective March 21, 2013. In June 2017 the matter was remanded for additional development. An interim (December 2017) rating decision increased the rating to 10 percent, effective March 21, 2013 and 20 percent, effective September 29, 2016. FINDING OF FACT Prior to September 29, 2016, the Veteran's left knee scar was shown to be painful, but not unstable; from that date it is acknowledged to be both painful and unstable; at no time is it shown to have caused any compensable functional impairment. CONCLUSION OF LAW Ratings for a left knee scar in excess of 10 percent prior to September 29, 2016 and/or 20 percent from that date are not warranted. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Code 7804 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.159(a), 3.326(a). As this appeal is from the rating decision that granted service connection and assigned a disability rating and an effective date for the award, the purpose of statutory notice is served, and such notice is no longer necessary. A statement of case (SOC) properly provided notice on the downstream issue of entitlement to an increased initial rating. VA secured the Veteran's pertinent treatment records. He was afforded VA examinations in September 2016 and September 2017. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where the appeal is from the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ("staged") ratings may be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Scars are evaluated under 38 C.F.R. § 4.118, Codes 7800 through 7805. Code 7800 applies to scars of the head, face, and neck (and therefore does not apply in this case). Code 7801 applies to scars, not of the head, face, or neck that are deep and nonlinear. A 10 percent rating is assigned for an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). Note 2 provides that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7801. Superficial and nonlinear scars not of the head, face, or neck are rated under Code 7802. Under this Code, a 10 percent rating is assigned for scars that cover an area or areas of at least 144 square inches (929 square cm). Note 2 provides that a superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7802. Under Code 7804 (for scars that are unstable or painful) a 10 percent rating for one or two qualifying scars, a 20 percent rating for three or four qualifying scars, and a 30 percent rating for five or more qualifying scars. Note 1 under the Code provides that 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, Code 7804. Under Code 7805 any disabling effect(s) not considered in a rating provided under Codes 7800-04 are to be rated under an appropriate Code. 38 C.F.R. § 4.118, Code 7805. The Board notes that it has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting its decision, there is no requirement that the Board discuss every piece of evidence in the record. The Board will summarize the relevant evidence, as deemed appropriate, and the Board's analysis will focus on what the evidence shows, or fails to show, as to the claims. See Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). On April 2013 and August 2014 VA knee examinations, one left knee replacement scar was noted. It was described as linear, 22 centimeters long, not painful or unstable, and with no other related physical findings or symptoms. On July 2016 VA knee examination, a linear, 26 centimeters long scar that was not painful or unstable was noted on the Veteran's left knee . In an August 2016 statement, the Veteran reported that his left knee scar is painful and itches. On September 29, 2016 VA scar examination, a left knee linear, 22 centimeters long scar was noted. The Veteran reported that it was healed and not painful. The examiner noted that it did not result in limitation of function and that there was no objective evidence of pain. It scar was noted to be is asymptomatic. On September 2017 VA examination, a painful left knee scar from a knee replacement was noted. The Veteran reported pain described as a pulling sensation at the site of the scar when bending his knee and constant itching. He also reported the scar was unstable. On examination, the scar was tender to deep palpation. The criteria for rating scars are outlined above. Codes 7800, 7801, and 7802 do not apply because the scar in question is not on the head, face or neck, and is not shown to be deep and nonlinear or superficial and nonlinear. Under Code 7804 (the diagnostic code under which the left knee scar is currently rated), ratings are assigned based on the number of scars and whether they are painful or unstable. A 10 percent rating is the maximum rating where, as here, there is a single scar unless it is shown to be both painful and unstable (and an additional 10 percent is then added to the rating). At no time prior to September 29, 2016, was the Veteran's left knee scar shown to have been unstable (in addition to painful). Examiners consistently reported that the scar was not unstable. Consequently, a rating in excess of 10 percent under code 7804 prior to September 29, 2016 is not warranted. Notably, on examination on that date the Veteran himself reported the scar to be healed. From September 29, 2016 the scar has been assigned a 20 percent rating on the basis that it is both painful and unstable (the Veteran self-reported the scar to be unstable on September 2017 VA examination); that is the maximum scheduler rating under Code 7804 for a single scar. The analysis turns to whether a higher rating may be warranted under alternate criteria. Under Code 7805 an disabling effects not considered under Codes 7800-7804 may be rated under an appropriate diagnostic code. Here, examiners have reported there are no other related symptoms or findings and no related impairment of function. Accordingly, a rating for the scar under alternate criteria is not warranted. The Veteran and his representative have not alleged any symptoms of, or impairment due to, the left knee scar not encompassed by the schedular criteria, and the record does not reveal any such symptoms or impairment. The preponderance of the evidence is against this claim. Accordingly, the appeal in the matter must be denied. ORDER Ratings for a left knee scar in excess of 10 percent prior to September 29, 2016 and in excess of 20 percent from that date are denied ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs