Citation Nr: 20007632 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 18-40 170 DATE: January 30, 2020 ORDER 1. Entitlement to a compensable rating for a left knee scar is denied. REMANDED 2. Entitlement to a compensable rating for a left knee disability is remanded. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran’s left knee scar is superficial, totals less than 144 square inches in area, and is not shown to be painful or unstable or to cause any functional impairment. CONCLUSION OF LAW A compensable rating for a left knee scar is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.31, 4.118, Codes 7802, 7804, 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from August 1963 to February 1964. These matters are before the Board of Veterans’ Appeals (Board) on appeal from an October 2016 rating decision. In December 2019, a video conference hearing was held before the undersigned; a transcript is in the record. 1. Entitlement to a compensable rating for a left knee scar is denied. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. When the appeal is from the initial rating assigned with an award of service connection, the entire period from the initial assignment of the disability rating to the present is to be considered, and “staged” ratings may be assigned based on facts found. See Fenderson v. West, 12 Vet. App. at 125-26 (1999). Reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (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. Superficial and nonlinear scars not of the head, face, or neck are rated under Code 7802, which provides for a 10 percent rating for scars with an area or areas of at least 144 square inches (929 square cm). Note 2 following defines a superficial scar as one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Code 7802 and note following. Under Code 7804 (for scars that are unstable or painful) a 10 percent rating is assigned 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 following defines an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. Under Code 7805 any disabling effect(s) [of scars] not considered in a rating under Codes 7800-04 are to be rated under an appropriate Code. 38 C.F.R. § 4.118. On November 2016 knee examination, a longitudinal scar on the medial left knee was noted. At the October 2019 videoconference hearing the Veteran testified that his left knee scar was not painful, had fully healed, and did not limit range of motion or result in any functional limitations. On January 2020 knee examination of the Veteran a left knee ACL repair scar was noted. The scar was not painful or unstable, and did not have a total area greater than 39 sq. cm. As the Veteran’s left knee scar has never (during the evaluation period) been described as deep, Code 7801 does not apply in this matter. Code 7804 would apply if the scar was shown to be painful or unstable. At the October 2019 videoconference hearing, the Veteran testified that his left knee scar is not painful or unstable. The scar has not been found to be unstable. Therefore, a compensable rating for the left knee scar under Code 7804 is not warranted. Pursuant to 38 C.F.R. § 4.31, a 0 percent rating must be assigned under Code 7804. Code 7805 would apply if there was functional impairment (not accounted by Codes 7801, 7802, 7804) attributable to the scar. At the October 2019 video-conference hearing the Veteran testified that he does not experience any impairment of function due to his left knee scar. Limitations of left knee motion noted have been attributed to, and are considered in, the ratings assigned for the underlying knee disability. See 38 C.F.R.§ 4.31. The Board finds that the Veteran’s left knee surgical scar has not at any time under consideration met any applicable rating criteria for a compensable rating. The preponderance of the evidence is against this claim. Therefore, the benefit of the doubt doctrine does not apply; the appeal in this matter must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 2. Entitlement to a compensable rating for a left knee disability is remanded. Additional medical evidence (reports of an October 2018 DBQ, and a January 2020 DBQ) has been added to the record since the statement of the case (SOC) was issued in June 2018. This evidence has not been considered by the agency of original jurisdiction (AOJ). Therefore, there is a due process deficiency that requires corrective action. See 38 C.F.R. § 19.9. 3. Entitlement to TDIU is remanded At the October 2019 videoconference hearing, the Veteran’s representative raised the matter of entitlement to a TDIU rating (in the context of the claim for increase). The claim for a TDIU rating is inextricably intertwined with the claim for an increased rating for the left knee disability that is being remanded. Accordingly, consideration of the TDIU claim must be deferred pending resolution of the claim for an increased rating for the left knee The matters are REMANDED for the following: 1. Review the additional evidence received following the issuance of the statement of the case in the matter, arrange for any further development that may be indicated (e.g. for updated treatment record), and readjudicate the claim for an increased rating for a left knee disability. 2. Then, review the expanded record, arrange for any further development necessary, and adjudicate the claim for TDIU considering the determination made on the left knee increased rating claim. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Staskowski, 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.