Citation Nr: 19191968 Decision Date: 12/10/19 Archive Date: 12/06/19 DOCKET NO. 17-59 564 DATE: December 10, 2019 ORDER Entitlement to a 10 percent rating, but no higher, for residual scar from a left knee ACL repair is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for residuals of a traumatic brain injury (TBI), other than migraines and psychiatric disability, is remanded. Entitlement to an initial compensable rating for neuroma involving the left saphenous nerve is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran experiences one painful residual scar from her service-connected left knee ACL repair. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for a 10 percent rating, but no higher, for residual scar from a left knee ACL repair have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Navy from June 2003 to January 2006. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision. The Veteran requested a Board hearing before a Veterans Law Judge on her September 2017 substantive appeal (VA Form 9). A Board hearing was scheduled for a date in November 2019, but VA’s Veterans Appeals and Control Locator System (VACOLS) indicates that the hearing was cancelled by the Veteran. As for characterization of the issues on appeal, in light of the fact that service connection has been awarded for migraines and posttraumatic stress disorder (PTSD) with major depressive disorder, in light of the Veteran’s reported symptoms and contentions, and to encompass all disorders that are reasonably raised by the record, the Board has re-characterized the claim of service connection for TBI as a claim of service connection for residuals of a TBI, other than migraines and psychiatric disability. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that, in determining the scope of a claim, the Board must consider the claimant’s description of the claim, the symptoms described, and the information submitted or developed in support of the claim). As a final preliminary matter, the Veteran was previously represented by attorney William L. Nabors, as indicated by a completed “Appointment of Individual as Claimant’s Representative” form (VA Form 21-22a) dated in October 2018. In October 2019, after certification of the Veteran’s appeal to the Board, this attorney submitted a statement indicating his desire to withdraw from representation of the Veteran. In order to withdraw from representation after certification to the Board, the representative must submit a written motion to withdraw showing good cause for the withdrawal. 38 C.F.R. § 20.608. In his October 2019 statement, the attorney indicated that he was withdrawing as the Veteran’s representative because he had unsuccessfully attempted to communicate with the Veteran on several occasions. A copy of his statement was sent to the Veteran and he informed the Veteran in the statement of her rights pertaining to submission of additional evidence. The Veteran has not subsequently submitted any form (VA Form 21-22 or Form 21-22a) appointing any other organization or individual as her representative. Accordingly, the Board finds that the attorney has shown good cause for his withdrawal of representation, that his withdrawal is consistent with the applicable regulations, and the Veteran is now unrepresented. Entitlement to a compensable rating for residual scar from a left knee ACL repair Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). The Veteran seeks a separate compensable rating for the scars resulting from an in-service left knee ACL repair. Currently, these are service-connected but rated non-compensable as part of the overall rating for the left knee ACL repair. As of August 13, 2018, changes to the rating schedule pertaining to the skin, including scars, are in effect; the Board will apply the new criteria for the period beginning August 13, 2018, if the new criteria are more beneficial to the Veteran than the prior version of the regulation. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (regulations may not have retroactive effect unless their language specifies so). Under Diagnostic Code (DC) 7804, a 10 percent rating is assigned for 1 or 2 unstable or painful scars; a 20 percent rating is assigned for 3 or 4 unstable or painful scars; and, a 30 percent rating is assigned for 5 or more unstable or painful scars. 38 C.F.R. § 4.118, DC 7804. Note 1 indicates that an unstable scar is one where, for any reason, there is frequent loss of covering over the scar. Additionally, if one or more scars are both unstable and painful, an extra 10 percent will be added to the rating that is based on the total number of unstable or painful scars. See id., Note 2. This particular diagnostic code did not receive any changes in the August 2018 update to the skin rating criteria. Other potentially applicable codes are DCs 7801 and 7802, which govern scars not of the head, face, or neck. Prior to August 13, 2018, DC 7801 considered scars that are deep and non-linear, and since August 13, 2018, DC 7801 considers scars associated with underlying soft tissue damage. Under both iterations of DC 7801, qualifying scars warrant a 10 percent rating if the area or areas exceed 6 square inches (39 sq. cm). A 20 percent rating requires an area or areas exceeding 12 square inches (77 sq. cm); a 30 percent rating is assigned for an area or areas exceeding 72 square inches (465 sq. cm); and a 40 percent rating is warranted for an area or areas exceeding 144 square inches (929 sq. cm). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801, Note 1 (2018). Since August 13, 2018, a separate evaluation may be assigned for each affected zone of the body (each extremity, anterior trunk, and posterior trunk) if there are multiple scars, or a single scar, affecting multiple zones of the body. Alternatively, if a higher rating would result from adding the areas affected from multiple zones of the body, a single rating may also be assigned under this DC. 38 C.F.R. § 4.118, Diagnostic Code 7801, Notes 1-2 (2019). Prior to August 13, 2018, DC 7802 considered scars that are superficial and non-linear, and since August 13, 2018, DC 7802 considers scars not associated with underlying soft tissue damage. Under both iterations, only a 10 percent disability rating is available. It is assigned when a qualifying scar involves an area or areas of at least 144 sq. inches (929 sq. cm.) or greater. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802 (2018). Since August 13, 2018, a separate rating may be assigned for each affected zone of the body (each extremity, anterior trunk, and posterior trunk) if there are multiple scars, or a single scar, affecting multiple zones of the body. Alternatively, if a higher rating would result from adding the areas affected from multiple zones of the body, a single rating may also be assigned under this DC. 38 C.F.R. § 4.118, Diagnostic Code 7802, Notes 1-2 (2019). The Veteran’s claim for an increased rating for residual scar from a left knee ACL repair was received on May 24, 2016. The Veteran’s private medical records reflect a procedure performed in July 2016 to treat a painful scar of the left proximal tibia, possible neuroma of the saphenous nerve, and a retained foreign body. The Veteran had sought treatment for pain and decreased sensation over the incision area in 2011 but did not opt to have the corrective surgery at that time. The records reflect that the Veteran returned with similar complaints as well as localized tenderness over the incision. The surgical procedure revised the scar, widening the 3-inch incision in the proximal medial tibia. In August 2016, the Veteran underwent a VA scars examination. She reported experiencing sharp, piercing pain involving the scar on the medial aspect of her left lower leg on a daily basis, as well as tenderness on contact. The examiner noted three other scars from small arthroscopic incisions that the Veteran denied were painful; these were measured to be one centimeter, one centimeter, and 0.8 centimeters long. The examiner was unable to physically assess the painful scar, as the Veteran’s wounds were still dressed from the July 2016 surgery to repair the painful scar. At a May 2017 VA knee examination, the examiner noted a linear scar on the left knee measuring four centimeters long and 0.25 centimeters wide. Also, there were four linear arthroscopic scars, each measuring 0.25 centimeters long and 0.25 centimeters wide. The examiner noted that none of these scars were painful, and did not complete a scars examination report. The Board observes that the examiner did not note any statements from the Veteran regarding the scars. The Veteran reported in her September 2018 substantive appeal (VA Form 9) that the surgical scar was deep and greater than six inches. She reported that it was painful, even considering the results of a recent surgery to repair the painful scar. At a February 2018 VA scars examination, the examiner noted one linear scar on the left knee measuring four centimeters long. The examiner noted that the scar was not painful. The Veteran’s VA treatment records do not contain any notes regarding the left knee scars. After a review of the evidence, the Board finds that a 10 percent rating is warranted for the Veteran’s service-connected left knee scar. Although the May 2017 and February 2018 VA examiners did not note that the large scar was painful, the Veteran has reported scar pain. She is competent to report the symptoms of her scarring (including pain), the Board has no basis to challenge the credibility of her reports, and her reports of scar pain are corroborated by the private medical record showing surgical repair of the painful scar. Furthermore, shortly after the repair surgery, the August 2016 VA examiner noted that the scar was painful. Resolving reasonable doubt in the Veteran’s favor, the Board finds that the record indicates the presence of one painful scar and three or four non-painful scars. Under both the old and new versions of DC 7804, one painful scar warrants a 10 percent rating. The Board also finds that a rating higher than 10 percent is not warranted under either the old or the new rating criteria at any time during the claim period. The Veteran’s scarring does not involve the head, face, or neck and the total area of the scarring is less than 6 square inches (39 square centimeters). Accordingly, DCs 7801 and 7802 are not relevant in this instance, as the total area is well below the area required for the minimal compensable rating in each DC. Accordingly, a 10 percent rating, but no higher, is warranted for residual scar from a left knee ACL repair during the entire claim period. As a final point, the Board notes that the Veteran is in receipt of a total (100 percent) rating and special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114 (s), effective from October 2, 2018. Accordingly, any claim for a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is moot during this period. With respect to the claim period prior to October 2, 2018, the evidence reflects that the Veteran was gainfully employed during this time. Overall, in conjunction with the claim for an increased rating for residual scar from a left knee ACL repair, no other related issues have been raised by the Veteran, and no other such issues have been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND 1. Entitlement to service connection for residuals of a TBI, other than migraines and psychiatric disability, is remanded. The Veteran contends that she has current disability associated with a head injury that she sustained in service. Her service treatment records reflect a fall in July 2004 where she injured the right side of her face, hand, and knee. She reported having a headache and feeling dizzy, but that she had not lost consciousness. The clinician noted that she was oriented to time, place, and person, and did not diagnose a TBI. The clinician instructed the Veteran to return the following morning for neurological checks, or sooner if symptoms increased, but there is no record of a follow-up visit. There are no other notations of injury to the Veteran’s head in the service treatment records. The Board acknowledges that the Veteran has also reported a head injury in 2006, but it appears that this occurred after her separation from service. At an August 2016 VA TBI examination, the Veteran reported that, while in service, she hit her head on an overhead and sustained a loss of consciousness for five to ten minutes. She reported that she experienced residuals of this head injury; including lack of concentration; mood swings, including anger issues; memory problems; and recurrent migraine headaches. The examiner, a neurologist, reviewed the Veteran’s records, including her service treatment records, and did not identify a diagnosis of TBI. The examiner opined that the records were objectively silent for the Veteran having sustained a TBI, loss of consciousness, or concussion, basing this conclusion on the July 2004 service treatment note describing the fall and resulting abrasions on the Veteran’s face. The examiner stated that a head injury is not equivalent to a TBI, and noted that the weight of medical literature on mild TBIs indicates a progression of symptoms to be present in their worst severity initially at the time of injury, and then to rapidly resolve without residuals within days or weeks. The Board points out that the Veteran’s VA treatment records, including a May 2013 VA mental health counseling note, include diagnoses of rule out cognitive disorder secondary to TBI. Her treatment records also suggest that her reported cognitive impairments may be associated with her service-connected PTSD with major depressive disorder and/or migraines. In light of this fact, the Board finds that a new examination should be conducted to determine whether the Veteran experiences any cognitive disability that is separate from her already service-connected disabilities and, if so, whether that disability is related to service or service-connected disabilities. Also, the evidence indicates that there may be outstanding relevant VA treatment records. The most recent VA treatment records in the claims file are from the Dublin Vista electronic records system (dated to July 2007), the Atlanta VA Health Care System (dated to December 2018), the Danville Vista electronic records system (dated to March 2015), the Hampton Vista electronic records system (dated to December 2006), and the VA Puget Sound Health Care System (dated to June 2018). Any VA treatment records are within VA’s constructive possession, and must be obtained regardless of their relevance as long as they are sufficiently identified. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (VA has a duty to assist in obtaining sufficiently identified VA medical records regardless of their relevance). See also Jones v. Wilkie, 918 F.3d 922 (Fed. Cir. 2019) (confirming the holding in Sullivan). A remand is required to allow VA to obtain them. Lastly, the claim of service connection for residuals of a TBI is also being remanded because additional treatment records are being sought upon remand which may document evidence of current residuals of a TBI. 2. Entitlement to an initial compensable rating for neuroma involving the left saphenous nerve is remanded. An April 2018 VA treatment record indicates increasing nerve damage, including intermittent numbness in all five left toes. The most recent VA examination, in May 2017, does not reflect these complaints or note any involvement of the saphenous nerve. Because it appears that the disability has worsened since the last evaluation, a new VA examination is necessary to determine the current severity of the Veteran’s neuroma. See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Also, all outstanding VA treatment records should be secured upon remand. The matters are REMANDED for the following action: 1. Ask the Veteran to identify the location and name of any VA or private medical facility where she has received treatment for residuals of a TBI (including, but not limited to, cognitive disability) and left lower extremity neurological disability, to include the dates of any such treatment. Ask the Veteran to complete a VA Form 21-4142 for all records of her treatment for residuals of a TBI (including, but not limited to, cognitive disability) and left lower extremity neurological disability from any sufficiently identified private treatment provider from whom records have not already been obtained. Make two requests for any authorized records, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s outstanding VA treatment records from the Dublin Vista electronic records system for the period since July 2007; the Atlanta VA Health Care System for the period since December 2018; the Danville Vista electronic records system for the period since March 2015; the Hampton Vista electronic records system for the period since December 2006; the VA Puget Sound Health Care System for the period since June 2018; and all such relevant records from any other sufficiently identified VA facility. 3. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for a TBI examination by an appropriate clinician to determine the nature and etiology of any current residuals of a TBI other than migraines and psychiatric disability (to include cognitive disability). The examiner must provide an opinion as to whether any cognitive impairment experienced by the Veteran since approximately May 2016 at least as likely as not is a symptom of an already service-connected disability. If any cognitive impairment experienced since approximately May 2016 is not a symptom of an already service-connected disability, the examiner should identify the disability(ies) and opine whether each such disability at least as likely as not (1) began during active service; (2) is related to an in-service injury or disease, including the Veteran’s head injury in service; (3) is caused by service-connected PTSD with major depressive disorder and/or migraines; OR (4) is aggravated by service-connected PTSD with major depressive disorder and/or migraines. The examiner must provide reasons for each opinion given. 4. After all efforts have been exhausted to obtain and associate with the claims file any additional treatment records, schedule the Veteran for an examination with an appropriate clinician to determine the current severity of her service-connected neuroma involving the left saphenous nerve. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner should elicit and address lay statements from the Veteran regarding neurological symptoms she experiences in her left lower extremity and should also address the April 2018 VA treatment note indicating intermittent numbness in the foot and toes of the left lower extremity. The examiner must provide reasons for any opinion given. Brian J. Elwood Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.