Citation Nr: 21003065 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 13-31 761 DATE: January 19, 2021 ORDER Entitlement to a rating of 10 percent for a right knee scar, prior to May 10, 2019 is granted and entitlement to a rating in excess of 10 percent from May 10, 2019 is denied. REMANDED Entitlement to a separate compensable rating for a right knee limitation of motion due to scar. FINDINGS OF FACT For the entire period on appeal, the Veteran has had two painful scars of the right lower extremity. CONCLUSIONS OF LAW The criteria for a disability rating of 10 percent, prior to May 10, 2019, for right knee scars have been met; however, the criteria for a disability rating in excess of 10 percent, from May 10, 2019, for right knee scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1968 to March 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in April 2017. This matter was previously remanded by the Board in January 2018 and March 2020 for further development. A review of the record indicates that the Board’s directives were substantially complied with, such that further remand is not warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a compensable rating for a right knee scar, prior to May 10, 2019 and to a rating in excess of 10 percent from May 10, 2019 Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, however, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the Veteran’s disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran contends that he is entitled to a higher rating because his scars are painful. The Veteran’s right knee scars are rated under Diagnostic Code 7804 for unstable or painful scars. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrants a 10 percent rating. Three or four scars that are unstable or painful warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Prior to May 10, 2019, the Board finds that the preponderance of the evidence is in favor of a compensable rating because the Veteran’s scars are manifest by two scars that are painful. However, since May 10, 2019, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran’s scars are not manifest by three or four scars that are unstable or painful. At a VA examination in November 2012, it was noted that the Veteran did not have a painful or unstable scar. The November 2012 VA examiner did not indicate if the Veteran had any flare ups or discuss how flare ups would impact the Veteran’s scars. In his October 2013 VA Form 9, the Veteran stated that during a flare up, his right knee scars were painful. The Veteran elaborated on this pain during his April 2017 Board hearing. The Veteran is competent to describe his symptoms, such as pain. Further, the May 2019 VA examiner found the Veteran’s right knee scars to be painful. Although the May 2019 VA examiner indicated that there were three painful scars of the lower extremities, the Veteran is only noted as having two scars of the right lower extremity. Thus, the Board concludes that the examiner checked the incorrect box, indicating three painful scars, when in actuality only two scars are painful. Throughout the pendency of the appeal, the Veteran has only been shown to have two scars of the right lower extremity. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s right knee is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. Lastly, the Veteran’s representative stated that “there is indication that the right knee issues result in a functional impairment in his earning capacity.” However, the Veteran stated that sometimes the scars would force him to elevate and rest his knee due to pain. The painfulness of the scars is already compensated for the entirety of the appeal period. As such a separate rating under Saunders v. Wilkie is not appropriate. The Board acknowledges that the Veteran believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms, to include pain. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, he does not assert, and the medical records do not show, that the Veteran’s right knee scars are manifest by three or four scars that are unstable or painful. In conclusion, the Board finds that the preponderance of the evidence is in favor of the Veteran’s claim for a disability rating of 10 percent but no higher prior to May 10, 2019 but is against the Veteran’s claim for a disability rating in excess of 10 percent for right knee scars since May 10, 2019. In denying such a rating, the Board finds 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 It is unclear from the record if the Veteran’s right knee scars limit his motion. The Veteran contends that his scars, during a flare up, prevent the full flexion or extension of his knee. However, at a May 2019 VA examination, the Veteran’s limitation of extension was ascribed to his newly diagnosed arthritis. Diagnostic Code 7805 instructs that any disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 be rated under an appropriate Diagnostic Code. Remand is warranted to determine if the Veteran’s right knee limitation of motion is due to his scar. The Veteran’s complaints regarding limitation of motion preceded a diagnosis of arthritis. However, the May 2019 VA examiner did not address the Veteran’s lay statements that during a flare up, his scar prevented him full range of motion. On remand, the examiner should address the Veteran’s lay statements. The matters are REMANDED for the following action: 1. Provide the claims file to an appropriate VA examiner for an addendum opinion as to whether the Veteran’s right knee limitation of motion is related to a service-connected disability. The need for another examination is left to the discretion of the medical professional offering the addendum opinion. The examiner must opine whether any right knee limitation of motion is at least as likely as not (a) caused by; or, (b) aggravated (i.e., worsened) by the Veteran’s service-connected right knee cap scar. The examiner is reminded that he or she must address both prongs (a) and (b) above. In addressing the above, the examiner should discuss the Veteran’s lay statements regarding his symptom presentation, including during flare-ups. The examiner should also consider any other pertinent evidence of record, as appropriate. All findings should be reported in detail and all opinions must be accompanied by a clear rationale. 2. With consideration of all the evidence of record, re-adjudicate the claims. M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Uller, 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.