Citation Nr: 21002142 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 18-34 158 DATE: January 12, 2021 ORDER For the period from September 7, 2017 forward, a compensable rating for left knee replacement scars is denied. FINDING OF FACT For the period from September 7, 2017 forward, the left knee replacement scars have been neither painful nor unstable and have not resulted in disabling effects. CONCLUSION OF LAW For the period from September 7, 2017 forward, the criteria for a higher (compensable) rating for left knee replacement scars have not been met or more nearly approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1964 to May 1991. The Veteran did not indicate that he desired a Board of Veterans’ Appeals (Board) hearing on the May 2018 VA Form 9, Appeal to the Board. In January 2020, this claim was remanded for further development. Development has been completed, and the claim is again before the Board. Disability Rating Legal Authority Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 C.F.R. § 4.3. The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on the Department of Veterans Affairs (VA) to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.159, 3.326(a). The Board finds that the duties to notify and assist have been met. Neither the Veteran nor the representative has raised contentions regarding notice or assistance. Accordingly, the duties to notify and assist will not be further addressed. Rating Left Knee Replacement Scars from September 7, 2017 Forward The eight characteristics of disfigurement for the purposes of rating under 38 C.F.R. § 4.118 are: scar of 5 in. or more (13 or more centimeters (cm.)) in length; scar at least 1/4 in. (0.6 cm.) wide at its widest part; surface contour of scar elevated or depressed on palpation; scar adherent to underlying tissue; skin hypo- or hyper-pigmented in an area exceeding 6 sq. in. (39 sq. cm.); skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding 6 sq. in. (39 sq. cm.); underlying soft tissue missing in an area exceeding 6 sq. in. (39 sq. cm.); and skin indurated and inflexible in an area exceeding 6 sq. in. (39 sq. cm.). Note (1). 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 at least 6 square inches (39 sq. centimeters (cm.)) but less than 12 square inches (77 sq. cm.) will be assigned a 10 percent rating. 38 C.F.R. § 4.118, Diagnostic Code 7801. 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. 38 C.F.R. § 4.118, Diagnostic Code 7802. One or two scars that are unstable or painful will be assigned a 10 percent rating. Three or four scars that are unstable or painful will be assigned a 20 percent rating. Note (1) indicates 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 rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804. Under Diagnostic Code 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under Diagnostic Codes 7800, 7801, 7802, and 7804 not considered in a rating provided under Diagnostic Codes 7800 through 7804 are to be rated under an appropriate diagnostic code. 38 C.F.R. § 4.118. After a review of all the lay and medical evidence of record, the Board finds that for the entire rating period from September 7, 2017 forward, the service-connected left knee replacement scars were neither painful nor unstable, did not cover an area or areas of 144 sq. in. or greater, and did not result in any additional disabling effects. As such, a higher (compensable) rating for the left knee replacement scars is not warranted under Diagnostic Code 7805. 38 C.F.R. § 4.118. The Board has carefully considered the assertion of the Veteran’s representative on the October 2020 Informal Hearing Presentation (IHP) that the September 2017 VA examination is too old for VA rating purposes. Notwithstanding this general assertion, the Board finds that the September 2017 VA examination is adequate for rating purposes because the VA examiner considered the history of disability, noted the Veteran’s reported symptoms during an in-person examination, and conducted examination of the scars. Examination showed that the scars were not unstable. The VA examination report contains sufficient information to allow the Board to apply the relevant rating criteria for scars. Moreover, neither the Veteran nor his representative has argued that the service-connected left knee scars have increased in severity since he was last examined for VA compensation purposes in September 2017. Accordingly, the Board finds that VA’s duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4); Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007) (the mere passage of time does not require VA to provide a new medical examination). The Board has also carefully considered the assertion by the Veteran’s representative on the October 2020 IHP that the Agency of Original Jurisdiction (AOJ) has not requested treatment records from the Tucson VA Medical Center for 2019 where the Veteran receives VA care. Neither the Veteran nor the representative has asserted that these records will contain findings to suggest a compensable rating is warranted for the left knee replacement scars. For this reason, the Board finds that remanding the claim to request these records would result in unnecessary delay for the Veteran and, consistent with the lack of assertions that higher rating criteria are invoked, would not result in a higher compensable rating for the left knee replacement scars. Finally, the Veteran’s representative asserts in the October 2020 IHP that “the Veteran’s statements throughout the appeal process contend [that] his knees have increased in severity, not his scars.” As neither the Veteran nor the representative is currently asserting that the left knee replacement scars have increased in severity, the Board finds that remand for a new VA examination of the left knee replacement scars is not warranted, and would result in unnecessary delay for the Veteran. The most probative evidence on the question of rating the left knee scars is a September 2017 VA examination report, which reflects that the left knee replacement scars were measured to be 22 cm long and 0.3 cm wide, and 28 cm long and 0.3 cm wide, were not painful or unstable, and did not cover an area or areas of 39 square cm or greater. Private treatment records also do not show that the Veteran has received any recent treatment for the left knee replacement scars. The Board has considered whether a higher (or separate compensable) disability rating may be awarded under any other diagnostic code. As the evidence reflects that the left knee replacement scars were neither painful nor unstable and had a total area of 15 cm in area, a higher initial rating cannot be assigned under Diagnostic Codes 7801 or 7804. Further, as the left knee replacement scars did not cover an area of 929 sq. cm or more, a separate compensable rating may not be assigned under Diagnostic Code 7802. Accordingly, the Board finds that the criteria for a higher (compensable) percent rating for the left knee replacement scars have not been more nearly approximated for the entire rating period on appeal. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Department of Veterans Affairs A. Caruso, Attorney for the Board 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.