Citation Nr: 21000415 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 16-03 852 DATE: January 5, 2021 ORDER Entitlement to an initial compensable rating for a left knee scar is denied. Entitlement to a rating in excess of 10 percent for left knee instability prior to July 7, 2020 is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s linear left knee scar status post-anterior cruciate ligament (ACL) reconstruction has been characterized by two linear scars that are not unstable or painful. 2. Prior to July 7, 2020, the Veteran’s left knee instability has been characterized by slight lateral instability with no evidence of recurrent subluxation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial compensable rating for a left knee scar have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.118, Diagnostic Code (DC) 7805. 2. The criteria for entitlement to a rating in excess of 10 percent for left knee instability prior to July 7, 2020 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.7, 4.40, 4.45, 4.59, 4.71, 4.71a, DC 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1988 to March 1995. In February 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge at the Regional Office (RO). A transcript of the hearing is of record. The Board of Veterans Appeals (Board) remanded this matter in December 2019 for further RO development and to obtain additional medical records that may be necessary to adjudicate the Veteran’s claim. The Board is now satisfied that there was substantial compliance with the remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-147 (1999). The Board notes that in a January 2013 rating decision, the RO assigned the Veteran two separate 10 percent ratings for his left knee disability based upon limitation of motion (under DC 5260) and instability (under 5257), respectively. The Veteran was also assigned a noncompensable rating for his left knee scar. Further, with respect to his left knee ratings, in his December 2013 notice of disagreement, the Veteran only appealed the ratings for left knee instability and scar. Therefore, as reflected herein, the Veteran’s left knee rating based upon limitation of motion is not on appeal. Increased Rating Disability evaluations are determined by applying a schedule of ratings which is based on average impairment of earning capacity based on the specific diagnostic codes identifying the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, in cases where the Veteran’s claim arises from a disagreement with the initial evaluation following the grant of service connection, the Board shall consider the entire period of claim to see if the evidence warrants the assignment of different ratings for different periods of time during these claims, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination to which ratings are based adequately portray the anatomical damage and functional loss with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59. Moreover, a separate rating could also be warranted under 38 C.F.R. § 4.59 based on x-ray findings of arthritis with painful motion. See VAOPGCPREC 9-98; see also Degmetick v. Brown, 104 F.3d 1328, 1331 (Fed. Cir. 1997). 1. Entitlement to an initial compensable rating for a left knee scar The Veteran is seeking an increased rating for his service-connected linear left knee scar status post-ACL reconstruction. He is currently rated 10 percent for a second left knee scar, status post-total knee arthroplasty (TKA) and ACL reconstruction beginning July 7, 2020. However, he reported that his left knee scar status post-ACL reconstruction has sharp pain, especially in the winter, decreased sensation, swelling, redness, and even bleeding. The Veteran is service connected for a linear left knee scar status post-ACL reconstruction beginning September 2011, and the scar was assigned a noncompensable rating under 38 C.F.R. § 4.118, DC 7805. The Board notes that 38 C.F.R. § 4.118 was amended, effective August 2018. However, the Board observes that the newly enacted amendments do not materially change the rating criteria under the relevant diagnostic code for the Veteran’s herein claims. 38 C.F.R. § 4.118. With respect to the Veteran’s linear left knee scar status post-ACL reconstruction, a compensable rating is warranted under DC 7805 for a scar(s), other; and other effects of scars evaluated under DCs 7800, 7801, 7802, or 7804. However, the Veteran’s scar is not of the head, neck, or face, so DC 7800 does not apply. Under the remaining diagnostic codes, a compensable rating is warranted for a scar(s): • With underlying soft tissue damage and an area or areas of at least 12 sq. in. (77 sq. cm.) but less than 72 sq. in. (465 sq. cm.) (10 percent under DC 7801); • With no underlying soft tissue damage and an area or areas of 144 sq. in. (929 sq. cm.) or greater (10 percent under DC 7802); • One or two scars that are unstable or painful (10 percent under DC 7804); or, • One or two scars that are both unstable and painful (10 percent under DC 7804, note (2)). 38 C.F.R. § 4.118. After a review of the evidence of record, a compensable rating for the Veteran’s linear left knee scar status post-ACL reconstruction is not warranted. Specifically, in a March 2012 VA examination, the examiner noted that the Veteran had two linear scars on his left knee status post-ACL reconstruction, with one measuring 9 cm and the other measuring 7.5 cm. However, the examiner noted that the scars were healed, and they were not painful or unstable. There was also no evidence of skin breakdown or underlying tissue damage noted. Importantly, there is no mention of any “other effects” of these scars in accordance with DC 7805. Similarly, the Veteran underwent a VA examination in April 2018 where he reported that he experienced decreased sensation at the surgical sites, but occasionally experienced sharp pain, especially in cold weather. However, the examiner noted that the Veteran’s two lateral left knee scars status post-ACL reconstruction were healed, stable, and non-tender to palpation. Upon examination, neither scar was painful, and there was no evidence of skin breakdown or underlying tissue damage. Despite the Veteran’s reports to the examiner, the scars were not tender to palpation upon examination and the examiner noted that the scars caused no limitation in the Veteran’s functioning. Furthermore, the Veteran underwent a third VA examination in September 2020. The examiner indicated that the Veteran has a scar on the lateral aspect of the left knee status post-ACL reconstruction that is 7.62 cm long and 0.01 cm wide, is stable, is not painful, has no infection on the site, and is not tender to palpation. The examiner noted that the Veteran also has a left knee scar on the anterior aspect of the knee status post-total knee arthroplasty (TKA) that he underwent in July 2020. They noted that the second scar, which is 24.13 cm long and 0.03 cm wide, is painful and tender to palpation, but is not unstable. Neither scar is noted to have underlying tissue damage. Because the second scar is painful but not unstable, that scar is already rated 10 percent disabling in accordance with DC 7804. However, the examination did not reveal any “other effects” of the left knee scar status-post ACL reconstruction in accordance with DC 7805, or the newer left knee scar status post-TKA for that matter, and there is no mention in the report that the Veteran experienced decreased sensation, sharp pain, or bleeding associated with the left knee scars. To the contrary, the examiner noted that the Veteran’s left knee scar status post-ACL reconstruction is well-healed with no functional loss due to his scar. Moreover, the Veteran’s medical treatment records from September 2011 to the present do not reflect evidence of larger scar sizes, instability, additional painful scars, bleeding or infected scars, decreased sensation, or poorly healed scars that would warrant a higher rating, despite the Veteran’s testimony from February 2019 stating as much. There is one report in the medical record in April 2018 of the Veteran seeking treatment for pain in his knee that is sharp, throbbing, dull, tingling, radiating, numb, burning, and aching, but he did not report that any of this pain was related to his scars. As such, a compensable rating for his left knee scar status post-ACL reconstruction is not for application. The Board specifically considered whether a higher rating is warranted under DC 7805 for “other scars,” which are to be rated based on limitation of function of the part affected. However, the March 2012, April 2018, and September 2020 VA examiners did not report any evidence of nerve or muscle damage associated with the scars. As such, there is no evidence of other disabling effects that would warrant a higher and/or additional rating. Therefore, a rating under DC 7805, or any other relevant diagnostic code, is not for application. The Board considered the Veteran’s statements in determining the appropriate disability ratings. Specifically, the Veteran testified that his knee scars swell, have decreased sensation, bleed, and have sharp pain occasionally, particularly during cold weather. However, the Board finds these statements of limited probative value. While the Veteran, as a lay person, is competent to report observable symptomatology, once basic competency is met, the Board must consider credibility of testimony. In this case, the Veteran’s reports are not generally consistent with VA examinations and medical records demonstrating stable, well-healed, and painless left knee scars status post-ACL reconstruction surgery that show no signs of infection, no underlying tissue damage, and no limitations on the Veteran’s functioning. Furthermore, there are no reports of problems with the Veteran’s left knee scar status post-ACL reconstruction throughout the medical records. As such, not all of the Veteran’s assertions are supported by the evidence of record. See Caluza v. Brown, 7 Vet. App. 498 (1995). Additionally, although the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his acquired left knee scar status post-ACL reconstruction according to the appropriate DCs. Rucker, 10 Vet. App. at 74; Layno, 6 Vet. App. at 469; see also Cartwright, 2 Vet. App. at 25. On the other hand, such competent evidence concerning the nature and extent of the Veteran’s scars have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with their evaluations. The medical findings of the physicians who performed the VA examinations directly address the criteria under which this disability is evaluated. Because the examiners were able to review the medical file and examine the Veteran, the Board finds the examiners’ assessments of greater probative weight. The Board concludes that the weight of the evidence is against the claim for increased rating and there is no doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. 2. Entitlement to a rating in excess of 10 percent for left knee instability prior to July 7, 2020 The Veteran was receiving a 10 percent disability rating for left knee instability under 38 C.F.R. § 4.71a, DC 5299-5257 from September 2011 until he underwent a total knee arthroplasty (TKA) in July 2020, upon which time he began receiving a 100 percent disability rating under the appropriate DC. As such, the rating period on appeal is from September 19, 2011 to July 7, 2020. Furthermore, as mentioned above, the Veteran did not appeal his 10 percent disability rating for limitation of range of motion of the left knee under 38 C.F.R. § 4.71a, DC 5260 in his December 2013 notice of disagreement, so that issue is not on appeal. The Veteran asserts that his left knee disability was worse that it was rated prior to July 7, 2020 and appealed for higher ratings. Specifically, he contends that he was experiencing swelling, popping, flare-ups, cracking, stiffness, buckling or a giving-away sensation, and pain, and that he required both a soft brace and a metal brace to stabilize his knee. He reported that his knee would swell throughout the day when he was on his feet all day at work, he could not always sleep comfortably, and he had to use caution when climbing stairs or ladders. Furthermore, he testified that he would occasionally fall because of his knee, and it would begin hurting after only a warmup walk. Finally, he reported that his knee pops out of place when physicians test it for stability. Instability The Board considers whether a higher rating is warranted for the Veteran’s left knee instability prior to July 7, 2020 based upon instability or injuries to the semilunar cartilage. In order to warrant a compensable rating based upon knee instability or other cartilage symptoms, the evidence must show: • Dislocation of the semilunar cartilage with frequent episodes of locking, pain, and effusion in the joint (20 percent under DC 5258); • Recurrent subluxation or lateral instability (DC 5257; 20 percent for moderate symptoms); • Cartilage, removal of, symptomatic (10 percent under DC 5259); or, • Genu recurvatum (acquired, traumatic, with weakness and insecurity in weight-bearing objectively demonstrated (10 percent under 5263). 38 C.F.R. § 4.71a. After a review of the evidence, the Board determines that a higher rating for instability of the knee under DC 5257 was not warranted. Specifically, the Veteran reported during a March 2012 VA examination that he experiences flare-ups that limit bending, stooping, exercise, and prolonged standing that prevented him from playing basketball as frequently as he used to. Upon examination, the examiner noted that the Veteran had some anterior, posterior, and medial-lateral instability in his left knee of 1+ (0-5 mm.). The examiner also noted that the Veteran did not have any recurrent subluxation. Finally, the examiner noted that the Veteran occasionally uses a cane to assist with ambulation. Similarly, during an April 2018 VA examination, the examiner noted that the Veteran has some residual instability status post-ACL reconstruction. The Veteran reported increased instability in his left knee, and that he had decreased sensation at surgical sites, but at times there was sharp pain, especially when it was cold. However, the examiner noted that there was no instability of station and the Veteran had only slight lateral instability in the left knee but no recurrent subluxation. During this examination, the Veteran demonstrated no anterior, posterior, or medial instability, but lateral instability of 1+ (0-5 mm.). Furthermore, the Veteran reported left knee instability status post-ACL reconstruction, and noted that he cannot stand for prolonged periods of time, he is limited on doing house chores, and he has trouble taking care of his young child due to his knee symptoms during a September 2020 VA examination. The examiner noted that the Veteran had a history of left knee instability, but because he underwent a total knee arthroplasty in July 2020, he no longer has left knee instability. He noted that the Veteran did not have a history of recurrent subluxation. As such, VA examinations in March 2012, April 2018, and September 2020 do not reveal more than slight instability prior to July 2020 and indicate that the Veteran has no history of recurrent subluxation. Moreover, the Veteran’s medical treatment records prior to July 7, 2020 do not contain evidence that the Veteran had more than slight instability or that he had a history of recurrent subluxation. Although the Veteran underwent ACL reconstruction in 1992, his medical records show sparse treatment for complaints of knee instability. Specifically, he reported twisting his knee in October 2011 but left the emergency room before being seen. In November 2011, the Veteran reported that his knee gives away and he falls, so he was given a knee brace, and he was eventually prescribed a metal knee brace in May 2012. In August 2013, the Veteran sought treatment for twisting his knee once more. In July 2014, the Veteran was diagnosed with effusion and internal derangement of the left knee. In August 2014, he reported that he felt his knee popped out of place three months earlier. In July 2018, he was fitted with a new knee stabilizer brace. Additionally, in September 2019, his physician noted that the Veteran had a long history of knee instability, and he used a brace and ibuprofen to treat it. Finally, the Veteran reported in March 2020 that his left knee would lock and buckle on him. Despite treatment for instability in the medical record with braces and ibuprofen, the record does not contain evidence that his instability was categorized as more than “slight” and there is no evidence of recurrent subluxation. Specifically, the Veteran only “occasionally” ambulated with a cane and he was noted as having full strength. There are no clinical evaluations in the medical records that show more severe instability than that measured during the March 2012 and April 2018 VA examinations. Furthermore, the Board determines that there is no basis for a separate rating based on meniscal impairments under DCs 5258 or 5289 because both the March 2012 and April 2018 VA examinations denote no meniscal impairments, and there are no such impairments noted in the Veteran’s medical records. Similarly, the Veteran has never been diagnosed with genu recurvatum, and, therefore, a rating under DC 6263 is not warranted. The Board recognizes the Veteran’s statements regarding the worsening severity of his left knee disability. As stated, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive and provide the reasons for its rejection of any material evidence favorable to the Veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). While the Veteran is competent to report his physical symptoms as they are observable by his senses, his lay observations are outweighed by the conclusive results of the three examinations and lack of evidence of worsening instability in his medical records. As such, the Board concludes that the weight of the evidence is against the claim for increased rating and there is no doubt to be otherwise resolved. See Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The appeal is denied. 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. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kimber Veltri, Associate Counsel