Citation Nr: 21061306 Decision Date: 10/01/21 Archive Date: 10/01/21 DOCKET NO. 17-29 500 DATE: October 1, 2021 ORDER From January 24, 2015, to May 20, 2015, entitlement to a separate initial rating of 10 percent for right knee instability is granted. From May 21, 2015, entitlement to a rating of 20 percent for right knee instability is granted. From December 30, 2018, to May 30, 2019, entitlement to a rating of 20 percent for right knee arthritis is granted. From May 21, 2015, to September 30, 2019, entitlement to a rating of 10 percent for right knee scars is granted. REMANDED From January 24, 2015, to May 20, 2015, entitlement to an initial rating in excess of 10 percent for right knee instability is remanded. From May 21, 2015, entitlement to a rating in excess of 20 percent for right knee instability is remanded. From January 23, 2015, to December 29, 2018, entitlement to an initial rating in excess of 10 percent for right knee arthritis is remanded. From December 30, 2018, entitlement to a rating in excess of 20 percent for right knee arthritis is remanded. From May 2, 2014, to May 20, 2015, entitlement to an initial compensable rating for right knee scars is remanded. From May 21, 2015, entitlement to a rating in excess of 10 percent for right knee scars is remanded. FINDINGS OF FACT 1. From January 24, 2015, to May 20, 2015, there is evidence of right knee instability of mild overall severity. 2. From May 21, 2015, there is evidence of right knee instability of moderate overall severity. 3. From December 30, 2018, to May 30, 2019, giving the Veteran the benefit of the doubt, the Veteran's right knee arthritis is characterized by limitation of flexion to 30 degrees. 4. From May 21, 2015, to September 30, 2019, the Veteran's right knee scars are characterized by pain. CONCLUSIONS OF LAW 1. From January 24, 2015, to May 20, 2015, entitlement to a separate initial rating of 10 percent for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5257. 2. From May 21, 2015, entitlement to a rating of 20 percent for right knee instability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5257. 3. From December 30, 2018, to May 30, 2019, the criteria for a disability rating of 20 percent for right knee arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.71a, Diagnostic Code 5010-5260. 4. From May 21, 2015, to September 30, 2019, the criteria for a disability rating of 10 percent for right knee scars have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.14.14, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to July 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2015 rating decision. The appeal was remanded in January 2019. In a January 2020 VA PTSD examination, the Veteran states that he retired early in 2010 because of psychological problems, is working from home two hours a day, and has been offered full time work but declined because of his psychological symptoms. As the Veteran is still working and the rating for PTSD is not before the Board, the Board will not at this time assume jurisdiction over entitlement to TDIU. 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to consider all regulations that are potentially applicable through the assertions and issues raised in the record. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." Hart v. Mansfield, 21 Vet. App. 505 (2007). Knees Rating Criteria Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Under the former regulations, Diagnostic Code 5003 applies to degenerative arthritis (hypertrophic or osteoarthritis). 38 C.F.R. § 4.71a. Degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved (DC 5200 etc.). Id. When degenerative arthritis is established by x-ray findings and limitation of motion is noncompensable, a rating of 10 percent is appropriate for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Id. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. Id. In the absence of limitation of motion, a 10 percent rating is appropriate with x-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. A 20 percent rating is appropriate with x-ray evidence of involvement of two or more major joint groups or two or more minor joint groups, with occasional incapacitating exacerbations. Id. These ratings will not be combined with ratings based on limitation of motion (Note 1) and will not be utilized in rating conditions listed under Diagnostic Codes 5013 to 5024, inclusive (Note 2). Id. Effective February 7, 2021, Diagnostic Code 5003 applies to Degenerative arthritis other than post-traumatic. The provisions of this regulation are otherwise unchanged. For painful motion with any form of arthritis, the Veteran is entitled to at least the minimum compensable rating. 38 C.F.R. § 4.59. The same is true for painful motion in non-arthritis contexts when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011). Under the former regulations, Diagnostic Code 5257 governs other impairments of the knee. 38 C.F.R. § 4.71a. A 10 percent rating is appropriate for slight recurrent subluxation or lateral instability of the knee. Id. A 20 percent rating is assigned for moderate recurrent subluxation or lateral instability of the knee. Id. A 30 percent rating is assigned for severe recurrent subluxation or lateral instability of the knee. Id. Effective February 7, 2021, Diagnostic Code 5257 governs other impairments of the knee, but has separate rating sections for "Recurrent subluxation or lateral instability" and "Patellar instability." 38 C.F.R. § 4.71a. For recurrent subluxation or lateral instability, a 10 percent rating is appropriate for sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Id. A 20 percent rating is appropriate for one of the following: a) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation; or b) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation. Id. A 30 percent rating is appropriate for unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes both an assistive device (e.g., cane(s), crutch(es), walker) and bracing for ambulation. Id. Effective February 7, 2021, for patellar instability under Diagnostic Code 5257, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. 38 C.F.R. § 4.71a (Note 1). A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). Id. (Note 2). A 10 percent rating is appropriate for a diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker. Id. A 20 percent rating is appropriate for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker. Id. A 30 percent rating is appropriate for a diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker. Id. Under Diagnostic Code 5257, VA cannot categorically favor objective medical evidence over lay evidence when making a rating determination. English v. Wilkie, 30 Vet. App. 347, 35253 (2018). Further, because Diagnostic Code 5257 is not predicated on loss of range of motion, §§ 4.40 and 4.45, with respect to pain, do not apply. Johnson v. Brown, 9 Vet. App. 7, 11 (1996). Diagnostic Code 5260 was not amended in the regulations enacted effective February 7, 2021. This code governs limitation of flexion of the leg. 38 C.F.R. § 4.71a. A 0 percent rating is appropriate with flexion limited to 60 degrees. 38 C.F.R. § 4.71a. A 10 percent rating is appropriate with flexion limited to 45 degrees. Id. A 20 percent rating is appropriate with flexion limited to 30 degrees. Id. A 30 percent rating is appropriate with flexion limited to 15 degrees. Id. A knee disorder can receive separate ratings based on symptoms related to arthritis, stability, flexion, and extension. Where a Veteran has degenerative joint disease which is evaluated under Diagnostic Code 5003, a separate, compensable evaluation may be assigned under Diagnostic Code 5257 or 5258 if there are concomitant symptoms, such as knee instability or subluxation. See VAOPGCPREC 23-97. When a veteran has a knee disability evaluated under Diagnostic Code 5257, to warrant a separate rating for arthritis based on x-ray findings, the limitation of motion need not be compensable under Diagnostic Code 5260 or Diagnostic Code 5261; rather, such limited motion must at least meet the criteria for a zero-percent rating. See VAOPGCPREC 9-98. Also, a veteran may receive a rating for limitation of flexion only, limitation of extension only, or separate ratings for limitations of both flexion and extension under Diagnostic Code 5260 (leg, limitation of flexion), and Diagnostic Code 5261 (leg, limitation of extension). See VAOPGCPREC 9-2004. Finally, "evaluation of a knee disability under [Diagnostic Codes] 5257 or 5261 or both does not, as a matter of law, preclude separate evaluation of a meniscal disability of the same knee under [Diagnostic Codes] 5258 or 5259, and vice versa." Lyles v. Shulkin, 29 Vet. App. 107, 109 (2017). Former regulation 38 C.F.R. § 19.9(b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. The Federal Circuit has upheld the validity of this regulation. Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339, 1349 (Fed. Cir. 2003). As such, the Board will proceed to adjudicate the Veteran's claim. Right Knee Instability The Veteran was rated under Diagnostic Code 5257 from March 10, 1971, to January 23, 2015. Effective January 24, 2015, his rating under Diagnostic Code 5257 was terminated and he was rated under Diagnostic Code 5260 only. Specifically, the Veteran has been awarded service connection for right knee arthritis from March 10, 1971. From March 10, 1971, he is rated at 10 percent under Diagnostic Code 5257-5010. From August 10, 1976, he is rated at 20 percent. From April 1, 1979, to January 23, 2015, he is rated at 10 percent under Diagnostic Code 5257-5010. From January 23, 2015, he is rated at 10 percent under Diagnostic Code 5010-5260. From May 31, 2019, he is rated at 20 percent under Diagnostic Code 5010-5260. On May 2, 2014, the Veteran filed a claim for an increased rating. Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed. 38 C.F.R. § 3.400(o). See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is awarded unless the Veteran expresses an intent to limit the appeal to a specific disability rating). If an increase in severity of disease is ascertainable prior to a year before the filing date, the effective date shall be the date that the increase in severity is discernible. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). On May 2, 2014, the Veteran filed a VA 21-526b Supplemental Claim, seeking service connection for "right knee instability." The May 20, 2015 VA knee examination indicates "[o]ccasional" use of a cane. The Veteran denies flareups. There is no history of recurrent subluxation, lateral instability, or recurrent effusion. Joint stability testing is normal. The knee disorder impacts his ability to work as follows: "He currently can stand on the knee for a couple of hours before he has to rest but can only walk about 1/2 mile. He does not squat or kneel/crawl because of the pain. He can only climb about one flight of stairs before resting." In July 2015, the Veteran established VA medical care with Dr. NZ. An October 2015 VA physical medical consult describes prescription of a left-handed cane and instruction of how to use this device. Dr. NZ had referred the Veteran for this appointment. A February 2016 VA medical record describes "one episode of [right] knee that gave away was very embarrassed, no injury." A May 2016 VA medical record describes "right knee pain and 'giving away.'" In an August 2016 VA medical record, the "Veteran states that he needs a sturdier knee brace" because "he keeps falling down." His "last fall was [three] weeks ago and he did not injure himself." A July 2017 VA medical record states that the Veteran "walks in his community every other day" using "a cane due to his knees." In a January 2018 VA medical record, the Veteran was instructed to keep his cane "with him at all times." In a January 2019 VA medical record, the Veteran states that his "[k]nee gives out unexpectedly" and that he experiences "at least one fall in [the] last 30 days." In a September 2019 VA medical record, the Veteran describes a painful episode of his knee going out. The October 2019 VA knee examination indicates "knee giving out and balance difficulties." Further, due to "instability, balance issues ... the Veteran uses a walker." There is no history of recurrent subluxation, lateral instability, or recurrent effusion. The Veteran was "unable to perform" joint stability testing due to pain. A June 2020 VA medical states that the Veteran's "knee gives way" and lists one of the Veteran's long-term goals as being "able to walk all normal community distances ... without reports of knee instability in 8 weeks." 1. From January 24, 2015, to May 20, 2015, entitlement to a separate initial rating of 10 percent for right knee instability is granted From January 24, 2015, to May 20, 2015, the Board finds that the Veteran is entitled to a separate rating of 10 percent under Diagnostic Code 5257. Giving the Veteran the benefit of the doubt, the Board will assume that the filing of a claim for right knee instability on May 2, 2014, constitutes lay evidence of this condition. Consistent with this, VA medical records consistently indicate the presence of right knee instability. For this reason, the Board finds that the Veteran is entitled to a separate rating of 10 percent for right knee instability from January 24, 2015. As will be explained below, entitlement to a rating in excess of 10 percent for this period will be remanded. 2. From May 21, 2015, entitlement to a rating of 20 percent for right knee instability is granted In October 2015, the Veteran was prescribed a cane, having been referred by Dr. NZ, presumably no earlier than July 2015. Starting in February 2016, the Veteran consistently reports to VA medical providers that his knee is giving out. Based on this evidence, the Board finds the Veteran began to experience moderate right knee instability, as evidenced by the consistent reports of falls and the need to be prescribed a cane. This worsening seems to have occurred sometime after the May 20, 2015 VA knee examination, which did not specifically reference knee instability and mentions only "[o]ccasional" use of a cane. Giving the Veteran the benefit of the doubt, the Board will assign the Veteran a rating of 20 percent for right knee instability from May 21, 2015. This is the day after the latest piece of evidence suggesting only slight knee instability. As will be explained below, entitlement to a rating in excess of 20 percent for this period will be remanded. Right Knee Arthritis As noted, the Veteran has been awarded service connection for right knee arthritis from March 10, 1971. From that date to January 23, 2015, he is rated under Diagnostic Code 5257-5010. From January 23, 2015, he is rated at 10 percent under Diagnostic Code 5010-5260. From May 31, 2019, he is rated at 20 percent under Diagnostic Code 5010-5260. On May 2, 2014, the Veteran filed a claim for an increased rating. Because the claim is a non-initial claim, the Board will consider evidence of symptomatology from one year prior to when the claim was filed. 38 C.F.R. § 3.400(o). See A.B. v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a claim remains in controversy where less than the maximum available benefit is awarded unless the Veteran expresses an intent to limit the appeal to a specific disability rating). If an increase in severity of disease is ascertainable prior to a year before the filing date, the effective date shall be the date that the increase in severity is discernible. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). In the May 2015 VA knee examination, the Veteran denies flareups. Flexion is 0 to 100 degrees and extension is 100 to 0 degrees. These ranges of motion do not contribute to functional loss but painful motion does contribute to functional loss. The Veteran can perform repetitive-use testing with at least three repetitions and no additional functional loss or loss in range of motion. Pain and lack of endurance significantly limit functional ability with repeated use over time, but the Veteran "does not describe a change in range of motion." Muscle strength is normal. There is no ankylosis. The Veteran occasionally uses a cane. The knee disorder impacts his ability to work as follows: "He currently can stand on the knee for a couple of hours before he has to rest but can only walk about 1/2 mile. He does not squat or kneel/crawl because of the pain. He can only climb about one flight of stairs before resting." A July 2015 VA medical record indicates that the Veteran is taking naproxen for knee pain. An October 2015 VA medical record indicates that the Veteran is taking naproxen for knee pain. In his June 2017 VA medical record, the Veteran indicates the use of a cane. A July 2017 VA medical record states that the Veteran "walks in his community every other day" using "a cane due to his knees." A January 2018 VA medical record indicates that the Veteran was seen for bilateral knee pain on November 15, 2017, describing a pain magnitude of 8/10. A December 29, 2018 VA medical record indicates "[right] knee osteoarthritis, mild-to-moderate in nature ...." This record further states: "[H]e is going to get a referral for the hip and depending on what it shows we may consider treatment of the knee and/or the hip, but he wants to get the approval for the hip before we even workup the knee and we will go from there." In a January 9, 2019 VA medical record, the Veteran indicates that in the last 24 hours, his right knee pain level has been between 4 and 5, with a magnitude of 7 on average. This record states the Veteran's concerns about pain management as follows: "[C]urrent treatment is not effective, patient has requested alternative medication in an attempt to improve pain management." In an April 11, 2019 VA medical record, the Veteran indicates "unbearable pain associated with [his] right knee and right hip joint." In an April 16, 2019 VA medical record, the Veteran "reports limited [range of motion] to right knee and worsening pain while walking or sitting for extended periods." The Veteran uses a "walker and right knee brace." A May 2019 VA medical record indicates flexion limited to 30 degrees and extension limited to 5 degrees. A May 2019 VA medical record describes the Veteran's knee "[l]ocking once a week." In the October 2019 VA knee examination, the Veteran denies flare-ups. The Veteran refused range of motion testing due to pain. There is no pain with weight bearing. The Veteran refused to perform repetitive-use testing from "[f]ear of pain." With repetitive use over time, functional ability is limited by pain, fatigue, weakness, lack of endurance, and incoordination. The Veteran also displays instability of station and disturbance of locomotion. The Veteran uses a walker. Muscle strength is 4/5. There is no ankylosis or history of a meniscal condition. He regularly uses a brace, cane, walker, raised toilet seat, grabber device, shower seat, and shower bar. His right knee disorder impacts his ability to work as follows: "The Veteran is able to perform active and sedentary work not requiring driving or walking long distances due to the right knee post-traumatic and postoperative right knee with traumatic arthritis ...." There is evidence of pain in nonweight bearing and passive motion. 3. From December 30, 2018, to May 30, 2019, entitlement to a rating of 20 percent for right knee arthritis is granted For the period from January 23, 2015, to December 29, 2018, entitlement to a rating in excess of 10 percent will be remanded, for reasons to be discussed below. The Board finds that the earliest date of worsening right knee arthritis is December 30, 2018. A December 29, 2018 VA medical record notes "mild-to-moderate" severity of the right knee. Importantly, the Veteran at that time was more concerned about treatment for right hip pain than right knee pain. In January 2019, he complained that his knee pain treatment was not working. In separate April 2019 records, the Veteran noted "unbearable [right knee] pain" and "limited [range of motion] while walking or sitting for extended periods." By May 31, 2019, flexion was reported to be limited to 30 degrees. In light of this last finding, the RO awarded a rating of 20 percent from May 31, 2019. The Board finds that the worsening flexion began on December 30, 2018, at the earliest. On December 29, 2018, the Veteran indicated "mild" symptomatology, was more concerned about right hip pain than right knee pain and did not reference limitation of motion. Prior to this date, there is no evidence of flexion being limited beyond what was reported in the May 2015 VA knee examination. But shortly after December 29, 2018, the Veteran began complaining that his pain medications were ineffective, reported "unbearable [right knee] pain," and was found to have limited range of motion in two VA medical records. The Board finds that the Veteran's right knee arthritis worsening occurred sometime after the December 29, 2018 VA medical record. Giving the Veteran the benefit of the doubt, the Board shall assign the rating of 20 percent from December 30, 2018. For the period from December 30, 2018, a rating in excess of 20 percent for right knee arthritis is remanded, for reasons to be discussed below. Scars Rating Criteria Effective August 13, 2018, the schedule of ratings for the skin was amended. 83 Fed. Reg. 32664 (July 13, 2018) (codified at 38 C.F.R. § 4.118). Since the Veteran's claim was pending prior to August 13, 2018 and was filed on or after October 23, 2008, the Board will consider both the new schedule and the prior schedule that went into effect on October 23, 2008. Whatever schedule is more favorable to the Veteran will be applied. Effective October 23, 2008, Diagnostic Code 7804 provides compensation for painful or unstable scars. 38 C.F.R. § 4.118. A 10 percent rating is provided for one or two scars that are unstable or painful. Id. A 20 percent rating is provided for three or four scars that are unstable or painful. Id. A 30 percent rating is provided for five or more scars that are unstable or painful. Id. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. Note (2) states that if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Id. Note (3) states that scars evaluated under Diagnostic Codes 7800, 7801, 7802, or 7805 may also receive an evaluation under Diagnostic Code 7804, when applicable. Id. No changes to Diagnostic Code 7804 were made by the amendments that went into effect on August 13, 2018. Right Knee Scars On May 2, 2014, the Veteran filed a claim for benefits associated with his right knee, which did not specify a claim regarding right knee scars. Notwithstanding, in May 2015, the RO granted service connection for right knee scar with a rating of 0 percent from May 2, 2014 under Diagnostic Code 7804. Because the claim is an initial claim, the Board will consider evidence of symptomatology from the date that the claim was filed. 38 C.F.R. § 3.400(o). On May 2, 2014, the Veteran filed a VA 21-526b Supplemental Claim form that made no reference to painful knee scars but did make claims for other right-knee disorders, including increased rating for "right knee," service connection for "right knee instability," and service connection for "right knee wrong side surgery." The May 20, 2015 VA knee examination indicates two scars, one of the right lateral knee and one on the right medial knee. Neither scar is painful or unstable. Further, "[b]oth are well-healed without evidence of tenderness, breakdown, or limitation of motion." Both have dimensions of 7 cm by 0.2 cm. On December 8, 2015, the Veteran filed a VA 21-526EZ, listing the disability as "residuals scar [right] knee service connected." In a September 2019 VA medical record, the Veteran describes "numbness and tingling around the surgical scars on his knees." An October 2019 VA scars examination indicates a "medial right anterior knee" scar and a "lateral right anterior knee" scar. Both are "well-healed with pain" with dimensions of 7.5 cm by 0.5 cm. Both result in functional loss, as reflected by "limited range of motion and ambulation due to pain." Regarding the impact of these scars on the Veteran's ability to work, "[t]he Veteran is able to perform limited active work not requiring ambulation due to long periods of time or kneeling due to his conditions of right knee lateral and medial anterior scars, no limitations due to left knee scars." 4. From May 21, 2015, to September 30, 2019, entitlement to a rating of 10 percent for right knee scars is granted. From May 2, 2014, to May 20, 2015, entitlement to an initial compensable rating for right knee scars is remanded, for reasons to be described below. From May 21, 2015, to September 30, 2019. the evidence supports a rating of 10 percent for right knee scars. The earliest evidence that can be interpreted as evidence of right knee scar pain is the December 2015 claim form, in that it seems unlikely that the Veteran would file a claim for a scar disorder displaying no symptomatology. From that time, there is consistent evidence of right knee scar discomfort, as reflected by the September 2019 VA medical record and the October 2019 VA scars examination. This symptomatology must have started some time after the May 20, 2015 VA knee examination, which contains a specific finding that the Veteran's knee scars are neither painful nor unstable. Giving the Veteran the benefit of the doubt, the Board shall assign a rating of 10 percent from May 21, 2015, the day after the last piece of evidence indicating that the right knee scars are not painful. From May 21, 2015, entitlement to a rating in excess of 10 percent for right knee scars is remanded, for reasons to be described below. REASONS FOR REMAND 1. From January 24, 2015, to May 20, 2015, entitlement to an initial rating in excess of 10 percent for right knee instability is remanded. 2. From May 21, 2015, entitlement to a rating in excess of 20 percent for right knee instability is remanded. 3. From January 23, 2015, to December 29, 2018, entitlement to an initial rating in excess of 10 percent for right knee arthritis is remanded. 4. From December 30, 2018, entitlement to a rating in excess of 20 percent for right knee arthritis is remanded. 5. From May 2, 2014, to May 20, 2015, entitlement to an initial compensable rating for right knee scars is remanded. 6. From May 21, 2015, entitlement to a rating in excess of 10 percent for right knee scars is remanded. In his October 2019 VA knee examination, the Veteran refused range of motion testing and repetitive-use testing due to pain. While the Board acknowledges the Veteran's complaints, the Board finds that the Veteran should be given a second opportunity to participate in an examination, with the reminder that failure to fully cooperate with an examination is the same as failing to report for the examination, in which case the Board will base its decision on the evidence of record. 38 C.F.R. § 3.655. The new knee examination could yield findings relevant to the above knee and scar appeals. Thus, a decision by the Board on these claims would at this point be premature. Additionally, on remand the RO should obtain all relevant VA treatment records dated from July 2020 to the present before the issues on appeal are decided on the merits. Bell v. Derwinski, 2 Vet. App. 611 (1992). The matters are REMANDED for the following action: 1. Obtain all VA treatment records from July 2020 to the present. If no records are available, the claims folder must indicate this fact. Any additional records identified by the Veteran during the course of the remand should also be obtained, following the receipt of any necessary authorizations from the Veteran, and associated with the claims file. 2. Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge of the nature, extent and severity of his knee and scar disorders and the impact of these conditions on his ability to work. The Veteran should be provided an appropriate amount of time to submit this lay evidence. 3. After obtaining any additional records to the extent possible, provide an examination (or telehealth interview, review of the record, etc. if an in-person examination is not feasible) and obtain a medical opinion to determine the nature, extent, and severity of the Veteran's service-connected knee and scar disorders. Full range of motion testing must be performed where possible. The joint involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of the opposite undamaged joint. 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 the basis for this decision. The examiner should determine whether the Veteran's knee disorders are manifested by weakened movement, excess fatigability, incoordination, pain or flare-ups. These determinations should be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, pain or flare-ups. The examiner should also request the Veteran identify the extent of his functional loss during flare-ups and, if possible, offer range of motion estimates based on that information. If the examiner is unable to provide an opinion on the impact of any flare-ups on the Veteran's range of motion, the examiner should indicate whether this inability is due to lack of knowledge among the medical community or based on the lack of procurable information. If the examiner cannot provide an opinion without resort to speculation, the examiner should provide an explanation as to why this is so, and must state whether there is additional evidence that would permit the necessary opinion to be made. The examiner must also comment on the nature, extent, severity, and frequency of the Veteran's knee and scar disorders. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Cannon, Brian 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.