Citation Nr: 21000514 Decision Date: 01/05/21 Archive Date: 01/05/21 DOCKET NO. 13-07 600 DATE: January 5, 2021 ORDER Entitlement to a rating of 50 percent, but no higher, for bilateral pes planus with degenerative joint disease of the right foot from May 27, 2011, to August 6, 2019, is granted. Entitlement to an initial rating in excess of 20 percent for residual surgical scars of the right foot, right ankle, and right knee is denied. Entitlement to an initial compensable rating for right knee linear scars is denied. Entitlement to an initial compensable rating for right knee nonlinear scars is denied. REMANDED Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease is remanded. Entitlement to a compensable rating prior to December 2, 2015, and a rating in excess of 20 percent thereafter, for right knee subluxation is remanded. Entitlement to special monthly compensation (SMC) based on the loss of use of both feet. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the Veteran, for the appeal period prior to August 6, 2019, the Veteran’s bilateral pes planus with degenerative joint disease of the right foot more nearly approximated manifestations of pronounced symptoms. 2. The evidence of record reflects that the Veteran’s residual surgical scars of the right foot, right ankle, and right knee manifested at most as three or four scars that are unstable or painful. 3. The Veteran’s service-connected right knee linear scars are not shown to be painful and unstable, of a size warranting a compensable rating, or resulting in functional impairment. 4. The Veteran’s service-connected right knee nonlinear scars are not shown to be painful and unstable, of a size warranting a compensable rating, or resulting in functional impairment. CONCLUSIONS OF LAW 1. From May 27, 2011, to August 6, 2019, the criteria for entitlement to a rating of 50 percent, but no higher, for bilateral pes planus with degenerative joint disease of the right foot have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5276. 2. The criteria for entitlement to an initial rating in excess of 20 percent for residual surgical scars of the right foot, right ankle, and right knee have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.118, DC 7804. 3. The criteria for entitlement to an initial compensable rating for right knee linear scars have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.118, DC 7805. 4. The criteria for entitlement to an initial compensable rating for right knee nonlinear scars have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.118, DC 7802. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 2000 to October 2002. These matters come before the Board of Veterans’ Appeals (Board) on appeal from July 2011 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2014, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In a December 2017 decision, the Board granted entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities as raised in connection with the Veteran’s increased rating claims. As this issue has already been addressed and granted by the Board, it will not be addressed in this decision. In February 2020, the Board last remanded these matters to the RO for further development. As an initial matter, the Board notes that additional VA treatment records were added to the record after issuance of the most recent September 2020 Supplemental Statement of the Case (SSOC). However, this additional evidence is either cumulative to the evidence already of record or not relevant to the Veteran’s instant increased rating claims. As such, a remand for consideration by the Agency of Original Jurisdiction (AOJ) is not warranted. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under several DCs, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. Entitlement to a rating of 50 percent, but no higher, for bilateral pes planus with degenerative joint disease of the right foot for the period prior to August 6, 2019 The Veteran seeks an increased rating for his service-connected bilateral pes planus with degenerative joint disease of the right foot for the period prior to August 6, 2019. By way of background, on May 27, 2011, VA received the Veteran’s claim for an increased rating for his service-connected bilateral pes planus with degenerative joint disease of the right foot. In a July 2011 rating decision, the AOJ denied a rating in excess of 30 percent for the Veteran’s disability. Thereafter, in a January 2013 rating decision, the Veteran was granted an increased temporary 100 percent rating for his bilateral pes planus with degenerative joint disease of the right foot from November 4, 2011, to February 1, 2012, and from August 10, 2012, to November 1, 2012, based on surgical or other treatment necessitating convalescence. In a September 2019 rating decision, the AOJ increased the Veteran’s disability to 50 percent from August 6, 2019. As 50 percent is considered the maximum schedular evaluation and the 50 percent award represents a partial grant of the benefits sought on appeal, the issue remaining with the Board is whether the Veteran is entitled to a rating in excess of 30 percent for the period prior to August 6, 2019, excluding the periods for which a temporary 100 percent rating was awarded. In this regard, the Board will consider whether an increased rating is warranted from May 27, 2010, which is one year prior to the date VA received the Veteran’s non-initial increased rating claim. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (38 U.S.C. § 5110(b)(3) requires that "an increase in a veteran's service-connected disability must have occurred during the one year prior to the date of the veteran's claim ... to receive the benefit of an earlier effective date"). As such, for the applicable appeal period (excluding periods of temporary total ratings), the Veteran is rated as 30 percent disabling under DC 5276. Under DC 5276, a 30 percent rating is warranted for severe bilateral pes planus, characterized by objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, and characteristic callosities. A 50 percent rating is warranted for pronounced bilateral pes planus, characterized by marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement and severe spasm of the tendo achilles on manipulation, not improved by orthopedic shoes or appliances. 38 C.F.R. § 4.71a, DC 5276. Turning to the evidence of record, the VA treatment records reflect the Veteran’s reports of chronic foot pain. In April 2011, the Veteran experienced discomfort with plantar flexion and had received injections for his pain. See April 2011 VA treatment note. At that time, he was assessed with mild pes planus. The Veteran was afforded a VA examination in June 2011. The examination reflects that the Veteran experienced increased right foot pain with decreased response to pain medication. At the time of the examination, the Veteran was also receiving corticosteroid injections for his right foot pain. The VA examiner further found that the Veteran’s course since onset was progressively worse. Upon examination, the Veteran’s left foot symptoms included pain and swelling while walking. His right foot symptoms included pain and swelling while standing, walking, and at rest. The Veteran’s right foot symptoms also manifested in stiffness, fatigability, weakness, and lack of endurance while standing and walking. He experienced flares-ups that occurred weekly or more often and usually lasted one to two days, which impacted his limitation of motion in that he had to avoid weight bearing activities. The Veteran’s foot disability also resulted in functional limitations with standing and walking as the Veteran was unable to stand for more than a few minutes and was able to walk more than one fourth of a mile but less than one mile. Additionally, the Veteran used a cane and brace for his right foot pain and swelling. The VA examiner noted that the efficacy of corrective shoes, shoe inserts, or braces was “fair”. The VA examiner also found evidence of abnormal weight bearing with unusual shoe wear pattern for the Veteran’s bilateral feet. There was no evidence of pronation, pain on manipulation, nor muscle atrophy. The Veteran’s weight-bearing line was over the great toe. The examiner also noted that the Veteran’s bilateral pes planus with degenerative joint disease of the right foot and bilateral heel spurs impacted his occupational activities in that the Veteran was unable to engage in prolonged standing/walking activities as well as lifting activities. On November 4, 2011, the Veteran underwent a calcaneocuboid fusion with calcaneal bone graft surgery with right ankle fusion and on August 10, 2012, underwent a right revision calcaneocuboid fusion. As noted above, the Veteran is in receipt of temporary total ratings for these surgeries. The Veteran was afforded another VA examination in May 2013. He reported continual pain in both heels and that his pain was worse at night. He used inserts for his condition. The VA examiner noted that since the Veteran’s last evaluation, he had calcaneocuboid fusion with calcaneal bone graft of the right foot to stabilize the degenerative changes in his right foot. Upon examination, the Veteran had bilateral pain on use of the feet that was accentuated on use. There was also swelling on use bilaterally and bilateral extreme tenderness of the plantar surface of the feet, which was improved by orthopedic shoes or appliances. The Veteran did not have pain on manipulation of the feet, characteristic calluses, objective evidence of marked deformity of the feet, nor marked pronation of the feet. The Veteran’s symptoms were relieved by arch supports. He had decreased longitudinal arch height on the weight-bearing line, but the weight-bearing line did not fall over or was medial to the great toe. The Veteran also had inward bowing of the achilles tendon but did not have marked inward displacement and severe spasm of the achilles tendon. The examiner found that the Veteran’s condition impacted his ability to work, including bending, lifting, and carrying. The subsequent VA treatment records and lay statements continued to reflect chronic foot pain. For example, an August 2013 VA treatment record reflects that the Veteran was ordered custom molded orthotics and an ankle brace after he reported increasing right foot pain and pain that was so unbearable, he felt he needed to go the Emergency Department that week. A September 2014 VA treatment record also indicates that the Veteran requested a discussion regarding a possible third surgery on his right foot given the progressive pain he experienced. During the November 2014 Board hearing, the Veteran testified that he experienced extreme tenderness of the plantar surfaces of his feet and that his feet swell after about an hour or so into the day. See November 2014 Board hearing transcript, p. 24. He further testified that despite taking medications and wearing heel lifts, support hoses, and an ankle brace, he experienced discomfort and pain with walking. See id. at pp. 24-29. He also explained that he wakes up in the middle of the night with pain in his feet. See id. at p. 31. In April 2015, the Veteran underwent a VA electromyography (EMG) consult where he reported that his foot symptoms had not changed since his surgery. He explained that he experienced persistent pain, sharp in character, worse with heel strike and with some radiating symptoms proximally localized to the heel (medial aspect) primarily. His pain waxed and waned in intensity and was associated with swelling. Nerve conduction studies and EMG testing showed normal results with no electrodiagnostic evidence of right focal tibial mononeuropathy. There was no evidence suggestive of peripheral neuropathy. A November 2015 VA podiatry follow-up reflects that the Veteran was in physical therapy and his physical therapist was trying to get him to walk heel to toe. He ambulated with a cane and wore compression hose, a right lace up ankle brace, a sock, and high-topped boots. He had a decreased medial longitudinal arch of the right foot. An October 2016 VA podiatry treatment note further indicates that the Veteran reported constant pain in his big toe and that his foot was painful whenever he planted his foot at the surgical scar on the bottom of his foot. In December 2018, the Veteran underwent another VA examination where he was diagnosed with bilateral pes planus, arthrodesis of the right foot calcaneocuboid joint, and IP and MTP joint 1st toe osteoarthritis. The Veteran reported ongoing right foot pain at rest and during exertion. He reported flare-ups of pain a few days out of the week, which resulted in reduced use of the foot from walking or other activities. The Veteran constantly used a cane for ambulation and regularly used a brace for the foot and ankle to reduce pain and for stability. Although the Veteran reported functional loss and that he could not walk for more than several hundred yards before needing to rest, the examiner found no pain on use or manipulation of the feet. Upon examination, there was no evidence of characteristic callouses, marked deformity of one or both feet, marked pronation of one or both feet, marked inward displacement, nor severe spasm of the achilles tenon on manipulation of one or both feet. The examiner did not provide a response as to whether the Veteran had extreme tenderness of the plantar surfaces of one or both feet. The Veteran had decreased longitudinal arch height of one or both feet on weight bearing and the examiner found that orthotics relieved the Veteran’s right side. The December 2018 VA examiner also described the Veteran’s arthrodesis of the right calcaneocuboid joint and osteoarthritis of the right 1st IP and MTP joint as moderately severe. The Veteran’s pain contributed to functional loss and limitation of motion on the right side and the examiner noted the Veteran had less movement than normal, excess fatigability, incoordination, pain on movement, pain on weight bearing and non-weightbearing, disturbance of locomotion, interference with standing, and lack of endurance. The examiner also noted that increased use of the foot increased the Veteran’s pain and lessened his ability to walk and perform usual activities. Significantly, the examiner found that the Veteran’s foot condition affected his ability to perform basic activities of daily living without difficulty. The examiner further commented that the Veteran had no current pain or debility on the left foot and that all of the Veteran’s current pain and debility of the right foot stemmed from his old fracture at the right cuboid bone of the foot causing degenerative changes in the calcaneocuboid joint and subsequent chronic pain and surgeries at that site. The examiner also explained that the Veteran had right achilles tendonitis. The Veteran underwent another VA examination on August 6, 2019, which was the basis of the 50 percent award for his bilateral pes planus with degenerative joint disease of the right foot. At the time of the examination, the Veteran reported that he continued to have difficulty with driving and continued to experience pain with prolonged walking and standing. The examiner noted that the Veteran had a history of cortisone injections, custom sleeves, braces, and that his right foot was molded for special boots. He had arch supports and built-up shoes, but his right side was not relieved. Upon examination, the Veteran had bilateral pain on use of the foot, right foot pain accentuated by use, right foot pain on manipulation of the feet that was accentuated on manipulation, right foot characteristic callouses, right foot extreme tenderness of plantar surfaces that was improved by orthopedic shoes or appliances, bilateral marked deformity, bilateral marked pronation of the feet improved by orthopedic shoes or appliances, right foot marked inward displacement, and severe spams of the achilles tendon on manipulation of the one or both feet. The Veteran was diagnosed with flat feet, a right foot injury of the right foot chip fracture of the cuboid bone at the calcaneocuboid joint, right foot arthritis, and right achilles tendonitis. The examiner noted that the right foot calcaneocuboid joint was directly related to the Veteran’s bilateral pes planus and that given the Veteran’s right foot fracture and injury, the Veteran’s development of bilateral pes planus with degenerative joint disease had progressed. The examiner also indicated that the Veteran’s osteoarthritis of the right first MTP was a progression of his pes planus diagnosis. Thereafter, the Veteran underwent additional foot, muscle injury, and peripheral nerve VA examinations in August 2020 to determine all of the Veteran’s symptoms and diagnoses for the appeal period. The August 2020 foot conditions VA examiner noted that symptoms of both the Veteran’s right foot calcaneocuboid condition and right foot degenerative joint disease/enthesopathy were pain with/triggered by walking. The examiner opined that August 2019 appeared to be an estimate of the earliest date the Veteran had marked pronation of both feet. The examiner also found there was no objective evidence suggesting a diagnosis of peripheral neuropathy nor evidence of a muscle impairment. Likewise, the August 2020 VA peripheral nerve conditions VA examination reflects the Veteran had no definitive pathology established for neurological impairment of the feet and cited to the April 2015 EMG results that were normal. Finally, the August 2020 muscle injury examination reflects that the Veteran reported pain in his achilles since 2000, had a Group XI injury involving the right foot with no impact on muscle substance or function, and that his muscle injury had signs and symptoms of weakness, fatigue, and/or pain. In light of the above and resolving all reasonable doubt in favor of the Veteran, the Board finds that for the appeal period prior to August 6, 2019, the evidence is in equipoise as to whether the Veteran’s symptoms meet the criteria for a 50 percent rating under DC 5276. In this regard, the Board notes that the criteria for evaluating pes planus are not expressly written in the conjunctive as there is no "and" in the listed symptoms. Accordingly, it is not expected that all cases of pes planus will show all the findings specified. See Dyess v. Derwinski, 1 Vet. App. 448, 455-56 (1991) (applying 38 C.F.R. § 4.21 when evaluating pes planus); See also Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (the cases in which the Court has indicated that 38 C.F.R. § 4.21 applies are those in which the diagnostic criteria are not clearly joined in the conjunctive). With this in mind, the Board finds that the 50 percent rating criteria, under DC 5276, most accurately reflects the Veteran’s disability picture throughout the appeal period. Specifically, although the August 2019 VA examination is the first instance where marked pronation, marked inward displacement, and severe spasm of the tendo achilles is noted in the record, which are all specifically contemplated under the 50 percent rating, at the time of the examination, the Veteran reported that he continued to experience the same symptoms that he had throughout the appeal period, i.e., pain with walking and standing. Indeed, throughout the appeal period, the Veteran has consistently complained of chronic foot pain, despite the Veteran’s use of medications, heel lifts, corticosteroid injections, custom orthotics, arch supports, boots, and braces in conjunction with using a cane. The Board finds this evidence supports that the Veteran’s symptoms have generally not improved by orthopedic shoes or appliances. Moreover, the evidence reflects, as documented in lay statements and VA examinations throughout the appeal period, that the Veteran experienced extreme tenderness of the plantar surfaces of the feet while his foot condition greatly impacted his ambulation, necessitating the use of a cane. In reaching this decision, the Board has also considered the effects of pain, weakness, fatigability, or incoordination in evaluating the Veteran's disability. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran has complained of pain and swelling with walking and standing, including an inability to stand for more than a few minutes, which is documented in the June 2011 VA examination. The December 2018 VA examiner noted that the Veteran’s foot condition affected his ability to perform daily activities and resulted in less movement than normal, excess fatigability, incoordination, pain on movement, pain on weight bearing and non-weightbearing, disturbance of locomotion, interference with standing, and lack of endurance. This evidence reflects that the Veteran’s pes planus caused significant impairment throughout the appeal period. Additionally, the Board has specifically considered the Veteran’s lay statements and symptoms in awarding a 50 percent rating, including the functional impairment of the Veteran’s disability during flare-ups. The Board finds that the Veteran’s reports of pain as well as frequency, severity, duration, and impact of his disability during flare-ups probative evidence that his bilateral pes planus with degenerative joint disease of the right foot more nearly approximates the symptoms contemplated under a 50 percent rating. Indeed, the June 2011 VA examination reflects the Veteran had to avoid weight-bearing activities during flares. As such, the Board’s assignment of a 50 percent rating herein fully contemplates the Veteran's subjective complaints for his foot condition. 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board notes that 50 percent is the maximum schedular evaluation for bilateral pes planus. The Board also finds that no additional higher or alternative ratings under different DCs can be applied in this case as other DCs covering other disabilities or injuries of the foot either would not result in a rating in excess of the 50 percent evaluation assigned herein (see 38 C.F.R. § 4.71a, DCs 5277 through 5284), or would be impermissible as "pyramiding" under 38 C.F.R. § 4.14; (see also Esteban, supra.,) as the DC would apply to symptomatology already contemplated under DC 5276. Specifically, the Board notes that the Veteran is separately rated for limited motion of the right ankle associated with his bilateral pes planus with degenerative joint disease of the right foot and for residual surgical scars of the right foot and ankle. Additionally, while the VA examinations reflect multiple foot diagnoses including achilles tendinitis, arthrodesis of the right foot calcaneocuboid joint, osteoarthritis, and a muscle injury, the Veteran’s primary symptoms associated with these problems are pain, to include pain with walking and standing, swelling, and functional loss, which is what is contemplated by and compensated for in assigning the 50 percent rating under DC 5276 herein. Such consideration is apparent when noting that the evidence for the period prior to August 6, 2019, did not show marked pronation, marked inward displacement, nor severe spasm of the tendo achilles, which is contemplated under a 50 percent rating. Moreover, the Board cannot assign separate ratings for these disabilities as they contain overlapping symptomatology. Therefore, after resolving all doubt in the Veteran’s favor, the Board finds that the Veteran’s foot disability has presented with generally consistent symptoms throughout the appeal period and that for the appeal period prior to August 6, 2019, a 50 percent rating is warranted for the Veteran’s bilateral pes planus with degenerative joint disease of the right foot. Specifically, the Board finds that a 50 percent rating for the Veteran’s bilateral pes planus with degenerative joint disease of the right foot is warranted from May 27, 2011, the date of receipt of the Veteran’s increased rating claim as the Board does not find, nor does the evidence show, that a factually ascertainable increase in the Veteran’s disability occurred within the one year prior to receipt of the claim. In this regard, an April 2011 VA treatment record reflects mild pes planus while the June 2011 VA examination reflects increasing symptoms and pain. Accordingly, a 50 percent rating for bilateral pes planus with degenerative joint disease of the right foot is granted from May 27, 2011, to August 6, 2019. 2. Entitlement to an initial rating in excess of 20 percent for residual surgical scars of the right foot, right ankle, and right knee; an initial compensable rating for right knee linear scars; and an initial compensable rating for right knee nonlinear scars By way of background, in a July 2013 rating decision, following the Veteran’s right foot surgery and during the pendency of the Veteran’s increased rating claims, the AOJ granted service connection for residual surgical scars and assigned a 20 percent rating from May 16, 2013. Thereafter, in a March 2016 rating decision, following the Veteran’s right knee surgery, the AOJ granted service connection for right knee nonlinear scars and assigned a noncompensable (0 percent) rating from June 19, 2015; granted service connection for right knee linear scars and assigned a noncompensable (0 percent) rating from June 19, 2015; and granted service connection for a right knee painful scar, combined the right knee painful scar with the Veteran’s service-connected residual surgical scars of the right foot and ankle, and continued to assign a 20 percent rating for such residual surgical scars. Accordingly, the Veteran is currently in receipt of a 20 percent rating for residual surgical scars of the right foot, ankle, and knee under DC 7804; a noncompensable rating for right knee nonlinear scars under DC 7802; and a noncompensable rating for right knee linear scars under DC 7805. The Board notes that the regulations for scars rated under 38 C.F.R. § 4.118, DCs 7800-7805 were revised in August 2018. See 83 Fed. Reg. 38663 (Aug. 7, 2018). As the Veteran’s claims are prior to August 13, 2018, the Board will consider whether either the old or new rating criteria is more favorable to the Veteran. The Board notes there were no changes to DC 7804 under the revised criteria. The other changes will be discussed, as applicable, below. As an initial matter, DC 7800 pertains to scars of the head, face and neck and is not applicable in this case because the Veteran’s scars are located on his right lower extremity. Prior to August 13, 2018, under DC 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, which are deep and nonlinear in an area or areas of at least 6 square inches (sq. in.) (39 square centimeters (sq. cm.)) but less than 12 sq. in. (77 sq. cm.) warrant a 10 percent rating. A 20 percent rating requires an area or areas of at least 12 sq. in. (77 sq. cm.) but less than 72 sq. in. (465 sq. cm.). A 30 percent rating requires an area or areas of at least 72 sq. in. (465 sq. cm.) but less than 144 sq. in. (929 sq. cm.). A 40 percent rating requires an area or areas of 144 sq. in. (929 sq. cm.) or greater. A qualifying scar is one that is nonlinear and deep, and is not located on the head, face, or neck. Note (1) to DC 7801 provides that a deep scar is one associated with underlying tissue damage. 38 C.F.R. § 4.118, DC 7801. Since August 13, 2018, DC 7801 is for burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118. DC 7801 was otherwise unchanged by the August 13, 2018, amendments. Prior to August 13, 2018, DC 7802 provides that a 10 percent rating is assignable for burn scars or scars due to other causes, not of the head, face or neck, that are superficial and nonlinear and have an area or areas of 144 sq. in. (929 sq. cm.) or greater. 38 C.F.R. § 4.118, DC 7801. Since August 13, 2018, DC 7802 was amended to state that burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 sq. cm.) or greater will be assigned a 10 percent rating. Under DC 7804, a 10 percent rating is assignable for one or two scars that are unstable or painful. A 20 percent rating is assignable for three of four scars that are unstable or painful. A 30 percent rating is assignable for five or more scars that are unstable and painful. Note (1) provides that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that, if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides that scars evaluated under DCs 7800, 7801, 7802 or 7805 may also receive an evaluation under this DC, when applicable. DC 7805 indicates that that any disabling effects of a scar not considered in a rating provided under DCs 7800-04 is to be rated under an appropriate DC. 38 C.F.R. § 4.118. The Board notes that this DC is largely unchanged under the new amendments apart from the replacement of the phrase “(including linear scars)” with “and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804.” 38 C.F.R. § 4.118, DC 7805 (August 13, 2018). Turning to the evidence of record, the Veteran has been afforded several VA examinations regarding his scars. The Veteran was first afforded a scars/disfigurement VA examination in May 2013, where the record first indicated the Veteran had three painful right lower extremity scars as a result of his surgeries. Specifically, the Veteran had surgical scars of the right foot and leg. The Veteran had a bone graft harvesting scar just distal and lateral to the right knee measuring 0.5 centimeters (cm) long and 4.5 cm wide; a surgical scar of the medial right heel measuring less than 0.5 cm long and 3.5 cm wide; and a surgical scar of the lateral aspect of the right foot measuring 0.5 cm long and 7.5 cm wide. The examiner found that each of the three scars were linear and painful. None of the scars were unstable. The examiner also noted that the Veteran did not have any superficial non-linear scars nor deep non-linear scars. The scars did not result in limitation of function nor impacted the Veteran’s ability to work. The Veteran was afforded another scars VA examination in December 2015 following his right knee surgery. The examiner found that the Veteran had a total of four right knee scars residual from his knee surgery in June 2015 and that one of those scars was painful. Specifically, the Veteran’s right knee medial scar pulled and was painful to touch. None of the Veteran’s scars were noted as unstable. The VA examiner found that two of the identified scars were linear: his painful medial right knee scar measuring 1.5 cm long and 1.5 cm wide and an asymptomatic vertical scar anterior to the right knee center of patella measuring 7.5 cm long and 1.5 cm wide. The VA examiner also found that two of the Veteran’s identified scars were superficial non-linear: his asymptomatic arthroscope scar measuring 0.5 cm long and 0.5 cm wide and his asymptomatic arthroscope scar measuring 0.5 cm long and 0.5 cm wide. The approximate total area of his superficial non-linear scars was 0.5 cm squared. He had no deep non-linear scars. The examiner also found that none of the scars resulted in limitation of function nor had a functional impact. The August 2018 VA examination findings reflect that the Veteran had seven scars of the right knee, foot, and ankle. Specifically, the Veteran had five right knee scars that were healed, one scar on the right medial heel that was healed, and one scar on the right foot lateral side that was healed. The examiner identified that four of these scars were painful and were described as painful to touch and as a numb pain. Four of the scars were tender to palpation. All the Veteran’s scars were linear. None of the scars were unstable, superficial non-linear, nor deep non-linear. The examiner found that the Veteran’s right heel scar resulted in limitation of function because the heel scar was bothered by shoes, socks, and pressure placed upon the heel. The examiner also found that the right heel scar impacted the Veteran’s ability to work in that it caused pain with weight-bearing and walking. A December 2018 VA scars examination conducted in connection with the Veteran’s pes planus examination reflects that the Veteran had a right lateral foot scar, a right medial heel scar, and an upper right foreleg scar. The examiner found that two of the Veteran’s scars were painful with pain at site on the lateral foot and medial heel to touch that is worse with pressure from standing and walking. No scars were unstable. The examiner indicated that the approximate total area for scars without underlying tissue damage was 6.2 cm squared. The Board notes that although the examiner listed the right upper extremity for the approximate total area of scars, given the context of the examination for the Veteran’s right lower extremity, the Board finds the examiner meant the right lower extremity. The examiner found that the three identified scars constituted superficial non-linear scars. The Board notes that the December 2018 knee examiner noted that while the Veteran had scars associated with his right knee, the Veteran did not have any unstable or painful scars associated with his right knee condition. The Veteran also underwent two scar examinations in August 2020 and September 2020. The August 2020 VA examiner noted that the Veteran had right knee and right foot surgical scars and that the course since onset of the scars had stayed the same. The examiner specifically identified five right knee scars and two right foot scars. The examiner found that the Veteran’s right knee and foot surgical scars were stable and that none of the scars were painful or unstable. The examiner found that the approximate combined total area in centimeters squared for the scars without underlying tissue damage was 13.18 cm squared. None of the scars were noted to have underlying tissue damage. The examiner found that the Veteran’s scars did not result in limitation of function nor had any functional impact. The examiner also clarified that the Veteran did not have any right ankle scars and that all the Veteran’s scars were linear. The September 2020 VA examiner noted that the Veteran’s right lower extremity scars stayed the same since onset. The examiner identified five knee scars and two foot scars. The examiner also noted that all the scars were well-healed linear scars. The Veteran did not have any scars that were painful or unstable. The approximate total area for the scars without underlying tissue damage was 15.6 cm squared. None of the scars were noted ot have underlying tissue damage. The examiner further found that none of the scars result in limitation of function and had no impact on the Veteran’s ability to work. The VA treatment records during the appeal period are generally consistent with the findings from the scar examinations. In this regard, an April 2015 VA EMG consult reflects the Veteran’s report of painful right foot scars and reflects the Veteran had scar tissue from previous surgeries. A November 2015 VA treatment record also reflects that the Veteran reported that the scars on his knee were sensitive but not as painful as the scars on his foot. He explained that the pain along the scars of his foot felt almost electric when touched. See November 2015 VA treatment record. A subsequent October 2016 VA podiatry outpatient note further indicates that the Veteran experienced pain in his foot whenever he planted his foot at the surgical scar on the bottom of his right foot. During a June 2019 VA physical outpatient evaluation for his knee, the Veteran reported hypersensitive scarring. In light of the above, the Board finds that the preponderance of the evidence is against the assignment of higher ratings for the Veteran’s service-connected scar disabilities. Specifically, a compensable rating under DC 7801 is not applicable as the Veteran’s above-noted scars have not been described as deep nor has there been any indication that such are associated with underlying soft tissue damage. Furthermore, as documented in the VA examinations of record, the scars have an area of less than 6 square inches, or 39 square cms, which is contemplated under DC 7801 for a compensable 10 percent rating. Likewise, a compensable rating under DC 7802 is not warranted. First, the Board acknowledges that the December 2015 VA examiner identified two of the Veteran’s right knee scars as superficial non-linear scars and that the December 2018 VA examiner identified three of the Veteran’s right foot scars as superficial non-linear scars. Despite these findings, all the other VA examinations of record, in May 2013, August 2018, August 2020, and September 2020, reflect that the Veteran’s scars are all linear, which the Board finds more probative on the matter. Regardless, a compensable rating under DC 7802 is not warranted as the Veteran’s scars do not have the requisite measurement for a compensable rating. The evidence shows that the total area of the Veteran’s scars is no more than 15.6 cm squared. The Board also finds that a rating in excess of 20 percent under DC 7804 is not warranted for the Veteran’s residual surgical scars as the evidence does not reflect that the Veteran has five or more scars that are unstable or painful. While the VA examination findings are variable throughout the appeal period, at most, the evidence reflects that the Veteran had four scars that were painful during the appeal period. Finally, as noted above, a separate rating under DC 7805 is applied when any disabling effects of a scar is not considered in a rating provided under 7800-04. In this regard, the Board notes that the Veteran’s painful residual scars are contemplated under the assigned 20 percent rating under DC 7804 and, as such, the Veteran’s painful symptoms are accounted for. Additionally, the Veteran’s right foot, right ankle, and right knee disabilities are rated under various DCs and, as such, the Veteran’s symptoms, including any limitation of function with weight-bearing and walking are also already contemplated and considered in the Veteran’s other assigned ratings. Accordingly, the preponderance of the evidence is against the Veteran’s increased rating claims for his scars. The benefit-of-the-doubt rule does not apply, and entitlement to initial compensable ratings for the Veteran’s right knee linear scars and right knee nonlinear scars and to an initial rating in excess of 20 percent for residual surgical scars of the right knee, right foot, and right ankle are denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for right knee degenerative joint disease and entitlement to a compensable rating prior to December 2, 2015, and a rating in excess of 20 percent thereafter, for right knee subluxation Although the Board sincerely regrets the additional delay, a remand is necessary as there again has not been substantial compliance with the prior Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Specifically, although the August 2020 VA examiner provided range of motion estimates for repeated use over time and during flare-ups, the VA examiner did not provide range of motion measurements for weight-bearing and non-weightbearing nor indicate where pain began during any range of motion measurements as required under Correia v. McDonald, 28 Vet. App. 158 (2016). Additionally, in light of the August 2018 Joint Motion for Partial Remand discussion of the inadequacies in the June 2011, May 2013, and December 2015 VA examination findings, the Board finds that a retrospective opinion is warranted for the Veteran’s increased rating claims in order for the Board to more accurately assess the severity of the Veteran’s right knee disabilities. 2. Entitlement to SMC based on the loss of use of both feet Upon review of the record, the Board finds that the issue of entitlement to SMC based on loss of use of both feet has been raised by the record as part and parcel of the Veteran’s increased rating claims on appeal. As the development of the Veteran’s increased rating right knee claims could impact the Veteran’s SMC claim, the issues are inextricably intertwined. See 38 C.F.R. § 3.350(a)(2)(i)(a). Additionally, as the RO has not developed nor notified the Veteran of the pertinent laws and regulations for entitlement to SMC for loss of use of the feet, on remand the RO should provide the appropriate notice. The matters are REMANDED for the following action: 1. Provide the Veteran with the appropriate notice concerning VA’s duties to notify and assist with respect to the issue of entitlement to SMC for loss of use of both feet. 2. Obtain any outstanding VA treatment records and associate them with the Veteran’s claims file. The last VA treatment of record is dated September 2020. 3. Then, schedule the Veteran for an updated VA examination to determine the severity of his service-connected right knee disabilities. The claims file, including a copy of this Remand, must be made available to and be reviewed by the examiner. All indicated testing should be accomplished and all symptomatology associated with the disability should be identified. The examiner should respond to the following: (a) The examiner MUST TEST the Veteran’s range of motion on active and passive motion, on weight-bearing and non-weight-bearing, if possible, and record the range of motion measurements (a) If there is evidence of pain on motion, the examiner must indicate the degree of range of motion at which such pain begins, and whether such pain on movement, as well as weakness, excess fatigability, or incoordination results in any loss of range of motion. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain so in the report. (a) It is also imperative that the examiner comment on the functional limitations caused by flare-ups and repetitive use due to the Veteran’s disability. The examiner should state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups, if any, he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of his right knee and/or after repeated use over time. Based on the Veteran’s lay statements and the other evidence of record, the examiner should provide an opinion ESTIMATING any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the Veteran states that the limitation on range of motion is variable, provide the range of variableness in terms of degrees. (b) If it is not feasible to determine the extent to which the Veteran experiences additional functional loss on repeated use over time or during flare-ups without resorting to speculation, the examiner must provide an explanation for why that is so. The examiner is further advised that the inability to provide an opinion without resorting to speculation must be based on the limitation of knowledge in the medical community at large and not a limitation - whether based on lack of expertise, insufficient information, or unprocured testing - of the individual examiner. (a) The examiner is also asked to provide a RETROSPECTIVE opinion concerning the functional loss and severity of the Veteran’s right knee from May 2010 (i.e., from one year prior to the Veteran’s increased rating claim). Specifically, the examiner should DISCUSS the severity of the right knee throughout the appeal period. To the extent possible, the examiner should provide a retrospective opinion ADDRESSING prior range of motion of the right knee (and at what point pain started), including an ESTIMATED degree of additional range of motion loss due to repeated use over time and flare-ups, if feasible. In making this determination, the VA examiner should consider the prior VA examination reports. See, e.g., June 2011 VA examination (reflecting weekly flare-ups that last for hours), May 2013 VA examination (reflecting the Veteran was unable to tolerate repetitive use testing due to increased pain), December 2015 VA examination, December 2018 VA examination (noting at worse the Veteran cannot move the knee at all due to pain but at other times, his range of motion is minimal), and August 2020 VA examination (reflecting an estimated variable range of motion during flare-ups from 5-55 degrees to 45-10 degrees and history of severe recurrent subluxation) If the examiner is unable to provide a retrospective opinion as to these specific range of motion findings, he or she should clearly explain so in the report and must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge, i.e., no one could respond given medical science and the known facts, or by a deficiency in the record or the examiner, i.e., additional facts are required, or the examiner does not have the needed knowledge or training. Any opinion expressed by the VA examiner should be accompanied by a complete rationale. 4. After the above development has been completed, adjudicate the issue of entitlement to SMC for loss of use of both feet. If the determination is unfavorable to the Veteran, he and his representative should be furnished a supplemental statement of the case (SSOC) which addresses all evidence associated with the claims file. The Veteran should be afforded the applicable time period in which to respond before the case is returned to the Board. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.