Citation Nr: 20021728 Decision Date: 03/26/20 Archive Date: 03/26/20 DOCKET NO. 16-18 169 DATE: March 26, 2020 ORDER Entitlement to a 10 percent disability rating for the Veteran's service-connected scars of the bilateral knees is granted. Entitlement to a 60 percent disability rating for service-connected status post total left knee arthroplasty is granted. FINDINGS OF FACT 1. The evidence is at least in equipoise regarding whether the Veteran’s bilateral knee scars are painful. 2. The Veteran’s total left knee arthroplasty is most closely approximated by chronic residuals consisting of severe painful motion and weakness for the period on appeal. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent disability rating for service-connected bilateral knee scars have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.41, 4.118, Diagnostic Codes 7801 to 7805. 2. The criteria for entitlement to a 60 percent disability rating for service-connected status post total left knee arthroplasty have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from April 1971 to July 1973. Increased Rating—Legal Criteria Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must weigh against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996) (citing Gilbert, 1 Vet. App. At 54). Bilateral Knee Scars Legal Criteria Under the criteria for rating skin disabilities, scars, other than on the head, face, or neck, that are deep and nonlinear warrant a 10 percent rating if the area or areas affected are at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). A 20 percent rating requires an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801. Scars, other than on the head, face, or neck, that are superficial and nonlinear warrant a 10 percent rating for area or areas of 144 square inches (929 sq. cm.) or greater. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802. A 10 percent rating may also be assigned for one or two scars that are unstable or painful. A 20 percent rating is warranted when there are three or four scars that are unstable or painful. 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. Analysis In an April 2016 VA scars examination, the examiner briefly noted that the Veteran’s left knee surgical scars were not painful and/or unstable and did not measure greater than 39 square centimeters. Similarly, in a July 2019 VA knee examination, the examiner indicated that the Veteran’s scars were not painful, unstable, nor did they have a total area 39 square centimeters. In his April 2016 VA Form 9, the Veteran reported that his surgical scars were both painful and tender. Although the VA examiners did not find objective evidence of pain at the time of examinations, it is generally within the competence of a lay person to identify and observe the effect of a disability under the ordinary conditions of daily life. Many symptoms are readily observable by a lay person, such as deformity, swelling, and certainly pain. Accordingly, the lay evidence provided by the Veteran is unquestionably competent evidence. See Petitti v. McDonald, 27 Vet. App. 415, 427-28 (2015) (where the Court of Appeals for Veterans Claims found objective evidence of pain need not come from a medical professional; a lay person may provide the requisite confirmation). In this respect, the Board finds the Veteran’s own reports of pain to be most probative, as the Veteran is indeed the only person truly capable of such observation. Moreover, the Board finds no reason to doubt his veracity. In sum, the evidence showing the Veteran has experienced pain at the site of his surgical left knee scars is at least in equipoise with the evidence showing his scar was non-tender; therefore, the Board has afforded the Veteran the benefit of reasonable doubt and finds a 10 percent rating is warranted throughout the period of this appeal. The evidence does not indicate the Veteran’s left knee scars are either deep or non-linear, and the Veteran has not disputed this fact. As such, a separate compensable evaluation under Diagnostic Code 7801 or 7802 is not warranted. Additionally, the evidence does not show his scar is unstable. Therefore, a higher evaluation is also not warranted under Diagnostic Code 7804. For these reasons, the Board finds that a rating in excess of 10 percent for the service-connected left knee scars is not warranted for any portion of the period on appeal. Knee Replacement Legal criteria Following the prosthetic replacement of a knee joint, a 100 percent rating will be assigned for one year. Thereafter, a 60 percent rating is warranted if there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. With intermediate degrees of residual weakness, pain or limitation of motion, rate by analogy to DC 5256, 5261, or 5262, with a minimum rating of 30 percent. 38 C.F.R. § 4.71a, DC 5055. Analysis The Board has reviewed all the evidence of record. Although the Board must provide reasons or bases supporting its decision, there is no legal requirement that the Board specifically discuss each item of evidence in the record. Hence, the Board will summarize the pertinent evidence for each issue as deemed appropriate, and the analysis will focus on what the evidence shows or does not show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). On November 30, 2010, the Veteran underwent a total left knee arthroplasty. Following that surgery, the Veteran’s left knee disability was recharacterized as status post left knee arthroplasty and was rated as 100 percent disabling from January 1, 2011 to December 31, 2011; and then rated as 30 percent disabling thereafter, under DC 5055. Under the diagnostic code pertaining to a knee replacement, a 30 percent rating is the minimum possible rating assignable. A 60 percent rating is warranted when there are chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, DC 5055. The Veteran submitted private treatment records regarding the treatment of his left knee disability. These include an April 2013 prescription for a left knee brace to improve his joint stability and multiple treatment notes from Dr. F.V. spanning 2013-2016. In his notes Dr. F.V. indicates that the Veteran’s left knee status post-arthroplasty continues to be a problem as he has significant laxity and knee instability. Dr. F.V. also notes that the Veteran’s residuals include painful motion and weakness in the Veteran’s left knee which requires him to wear a leg brace. The Veteran also provided lay statements where he indicated that he has painful motion in his left knee, and left knee weakness. See April 2016 VA Form 9. The Board observes here that a Veteran is competent to testify as to observable symptoms such as pain. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran was provided a VA knee examination in April 2014. Upon examination, the examiner noted the Veteran’s total knee joint replacement and indicated that the Veteran reported his knee buckling and feeling loose. The examiner found that the Veteran’s left knee had limited range of motion (flexion to 130 degrees and extension to 130 degrees) but found that the Veteran did not experience pain on weight bearing, flare-ups, or instability of the joint. The Board, in an October 2018 decision, found this examination to be inadequate and remanded for an additional examination of the Veteran’s left knee. The Veteran was afforded a new VA knee examination in July 2019. The examiner diagnosed the Veteran with left prosthetic knee instability as a residual of the Veteran’s total left knee arthroplasty. During the examination the Veteran reported that his knee is getting worse as his knee buckles periodically and even causes him to fall. The Veteran noted that he experiences constant 5/10 pain that worsens with activity. The examiner noted that the Veteran experiences flare-ups multiple times per week and that the Veteran “can hardly sleep” due to the pain of his flare-ups. The examiner continued that the more work and exercise the Veteran does the worse his flare-ups become. Additionally, the examiner observed that while The Veteran’s flare-ups do not decrease his range of motion they do increase his symptoms, such as pain. The examiner reported that the Veteran’s left knee experiences pain with weight bearing and has objective evidence of crepitus. The examiner additionally noted that the Veteran has moderate left knee lateral instability. The examiner stated that while no pain was found on the current examination the Veteran’s knee was very unstable and has significant laxity. The examiner also cited to the Veteran’s orthopedic treatment notes which indicated that the Veteran is experiencing pain and weakness in his left knee. In weighing the evidence of record, particularly the Veteran’s private treatment notes, VA examinations, and competent lay statements the Board finds a 60 percent disability rating for the Veteran’s left knee is warranted. As 60 percent is the maximum rating allowed under Diagnostic Code 5055 for a knee replacement, this constitutes a full grant of the benefits sought on appeal. T. REYNOLDS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Gresham 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.