Citation Nr: 20026066 Decision Date: 04/15/20 Archive Date: 04/15/20 DOCKET NO. 14-36 129 DATE: April 15, 2020 ORDER A compensable evaluation for postoperative scars of the bilateral knees is denied. REMANDED Evaluation in excess of 10 percent for right knee chondromalacia with degenerative joint disease is remanded. Evaluation in excess of 10 percent for left knee chondromalacia with degenerative joint disease is remanded. Evaluation in excess of 20 percent for right lower extremity radiculopathy is remanded. Evaluation in excess of 20 percent for left lower extremity radiculopathy is remanded. Evaluation in excess of 20 percent for degenerative joint disease of the thoracolumbar spine with intervertebral disc syndrome is remanded. A total rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT The evidence does not show that the Veteran’s postoperative scars of the bilateral knees are deep and nonlinear or unstable and painful, or have an area of 144 square inches or any effects not considered in a rating provided under Diagnostic Codes 7801, 7802 and 7804. CONCLUSION OF LAW The criteria for a compensable evaluation for postoperative scars of the bilateral knees have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1973 to November 1976. The Board remanded the claims in July 2019. There has been substantial compliance with the remand in connection with claim decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Disability evaluations are determined by comparing a veteran’s present symptoms with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Reasonable doubt as to the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. The Veteran generally contends that he is entitled to a compensable evaluation for postoperative scars of the bilateral knees. The Veteran’s postoperative scars of the bilateral knees are rated under Diagnostic Code 7805 for other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. VA amended the criteria for rating skin disabilities effective from August 13, 2018; however, Diagnostic Code 7805 was not changed by those amendments. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 are to be evaluated under an appropriate Diagnostic Code. The Board finds that the preponderance of the evidence is against the assignment of a compensable rating for the Veteran’s postoperative scars of the bilateral knees under Diagnostic Code 7805 as there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04. A June 2013 VA Scars/Disfigurement DBQ and a November 2019 VA Scars/Disfigurement DBQ provide that the Veteran's scars did not result in limitation of function and he had no other pertinent physical findings, complications, conditions, signs and/or symptoms associated with the scars. The Board has also considered the other Diagnostic Codes pertaining to scars not of the head, face, or neck. However, the examinations of record show that the post-operative scars of the bilateral knees are not deep and nonlinear, and are not associated with underlying soft tissue damage. The examinations show that although the scars are superficial and not associated with underlying soft tissue damage, they do not cover an area or areas of 144 square inches or greater. Moreover, the DBQs show that the Veteran’s scars are not unstable or painful. Therefore, Diagnostic Codes 7801, 7802, and 7804, both prior to and from August 13, 2018, are inapplicable. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. He is competent to report symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the scars been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran's subjective complaints of increased symptomatology. The preponderance of the evidence is against the claim for a compensable rating for postoperative scars of the bilateral knees; the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND The development conducted as a result of July 2019 remand is inadequate and another remand of the claims is required. Stegall, 11 Vet. App. at 268. 1. Evaluation in excess of 10 percent for right knee chondromalacia with degenerative joint disease is remanded. 2. Evaluation in excess of 10 percent for left knee chondromalacia with degenerative joint disease is remanded. The claims are remanded to obtain an adequate opinion. A November 2019 Knee and Lower Leg DBQ does not include all findings necessary to evaluate the Veteran’s knee disabilities. The VA examiner did not attempt to elicit information from the Veteran regarding the duration and functional loss during flare-ups, as specifically requested by the Board's remand. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In addition, the DBQ provides inconsistent findings regarding functional loss due to flare-ups. The DBQ relates that right and left knee pain during flare-ups results in functional loss that the examiner was able to describe in terms of range of motion. However, the range of motion findings provided to describe the loss of knee motion due to flare-up pain are exactly the same as the range of motion findings that do not address flare-ups. Id. 3. Evaluation in excess of 20 percent for right lower extremity radiculopathy is remanded. 4. Evaluation in excess of 20 percent for left lower extremity radiculopathy is remanded. 5. Evaluation in excess of 20 percent for degenerative joint disease of the thoracolumbar spine with intervertebral disc syndrome is remanded. The claims must be remanded for adequate opinions. A November 2019 VA Back (Thoracolumbar Spine) Conditions DBQ provides inconsistent findings regarding the Veteran's bilateral radiculopathy. The DBQ relates that the Veteran had moderate bilateral lower extremity pain, moderate bilateral paresthesias and/or dysesthesias and moderate bilateral numbness. At the same time, the DBQ relates that the Veteran's radiculopathy was of only mild severity. The November 2019 DBQ does not include all findings necessary to evaluate the Veteran’s spine disability. The VA examiner did not attempt to elicit information from the Veteran regarding the duration and functional loss during flare-ups, as specifically requested by the Board’s remand. Sharp, 29 Vet. App. at 26. Such information from the Veteran is particularly important in this case as during the examination the Veteran was on a scooter and claimed he could not stand long enough to do range of motion testing. However, the DBQ also relates that the Veteran moved around on a scooter for distances greater than 50 meters, suggesting an ability to stand and walk short distances that could be affected by flare-ups. 6. TDIU is remanded. During a March 2019 hearing before the undersigned Veterans Law Judge, the Veteran testified that he could not work due to service-connected disabilities. He stated that his jobs for the past 15 years had been manual. A June 2013 VA Back (Thoracolumbar Spine) DBQ relates that the impact of the Veteran's ability to work was back pain, stiffness, limited range of motion, and difficulty with heavy lifting, bending, prolonged standing, walking or climbing stairs. The November 2019 VA Back (Thoracolumbar Spine) DBQ relates that the Veteran's disability impacted his ability to work. He was unable to bear weight and moved around on a scooter for distances more than 50 meters. Sedentary work would be affected as well. There is evidence the Veteran may be unemployable as a result of his service-connected disabilities; however, his combined disability rating does not currently meet the schedular requirements for TDIU under 38 C.F.R. § 4.16 (a). If after the development on the remanded claims, his combined rating still does not meet the schedular requirements, the TDIU should be submitted to the VA’s Director of Compensation Service for extraschedular consideration. Since these claims are being remanded, the file also should be updated to include all outstanding VA treatment records. The matters are REMANDED for the following action: 1. Obtain and associate with the Veteran’s claims file copies of all outstanding VA treatment records dated from January 20, 2020, to the present. 2. Then, schedule the Veteran for examinations of the current severity of his service-connected thoracolumbar spine, radiculopathy of the bilateral lower extremities, and bilateral knee disabilities. The examiner must test and provide range of motion findings for the Veteran’s respective disabilities on active motion, passive motion, and pain with weight-bearing and with non-weightbearing. The examiner must address the severity of the Veteran’s right lower extremity and left lower extremity radiculopathy in terms of whether any incomplete paralysis of the sciatic nerve is mild, moderate, moderately severe or severe, with marked muscular atrophy. The examiner must attempt to elicit information from the Veteran regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must also specifically comment on whether the respective disabilities involve any functional limitation of the spine, knees, or bilateral lower extremities. An opinion regarding flare-ups should be based on information available in the claims file as to frequency, duration, characteristics, severity or functional loss, to include lay statements. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 3. Readjudicate the claims for increased rating. (Continued on the next page)   4. If after readjudication of the increased rating claims, the Veteran’s combined disability rating does not meet the schedular criteria of 38 C.F.R. § 4.16(a), refer the claim of entitlement to TDIU to the Compensation Service Director for extraschedular consideration pursuant to 38 C.F.R. § 4.16 (b). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Davitian, 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.