Citation Nr: 21066911 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 17-38 975 DATE: November 2, 2021 REMANDED Entitlement to a disability rating in excess of 10 percent for right knee scars disability is remanded. REASONS FOR REMAND The Veteran served on active duty from February 1982 to June 1985. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a rating decision dated September 2014 of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in October 2020, at which time the Board granted the Veteran's claim of entitlement to a compensable rating of 10 percent for the Veteran's right knee scar disability effective April 28, 2014. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). In a June 2021 Joint Motion for Partial Remand (JMPR) Decision, the CAVC vacated in part, the October 2020 decision to the extent that it only found, in relation to the right knee, that the Veteran was entitled to a compensable rating of 10 percent, but no higher for right knee scars, effective April 28, 2014. CAVC remanded the October 2020 Board decision for further proceedings consistent with the JMPR Decision. Entitlement to a disability rating in excess of 10 percent for right knee scars disability. The Veteran asserts that she is entitled to a rating in excess of 10 percent for her right knee scar disability. The Veteran has requested that the evidence of record and any other necessary evidence, claims, and theories be considered in support of the decision. See Form 9 Received August 2021; See also Appellate Brief received October 2021. The June 2021 JMPR specifically states that the portion of the Board's October 2020 decision that granted a 10 percent rating for right knee scars, effective April 2014, should not be disturbed. However, the issue of whether the Veteran is entitled to a higher rating, or an additional rating relating to the right knee under a different diagnostic code was remanded. The Board is ordered by CAVC to adequately address the Veteran's lay statements concerning the functional limitation of her scars upon remand. Additionally, CAVC stated that the Board failed to address whether a 10 percent rating pursuant to DC 7804, Note (2) was warranted in addition to the 10 percent rating that the Veteran was granted. See CAVC Decision Received June 2021. Subsequent to the issuance of the JMPR, the Veteran submitted a lay statement from her spouse CG who attested to the severity and the painful and physically limiting effects that the Veteran's right knee scars have on her ability to perform every day activities including gardening, painting, working on their farm. CG also attested to the fact that she has seen the photograph of record of the Veteran's right knee scars and stated that the photographs accurately represent the Veteran's right knee scar disability. See Lay Statement Received August 2011. Additionally, a lay statement from the Veteran was received in August 2021. The Veteran outlined her arguments and theories for requesting a rating in excess of 10 percent for her right knee scar disability. The Veteran stated that the photographs of record detail the severity of her right knee scar disability. The Veteran noted that when attempting to use a nail gun to attach the baseboard trim in her dining room she was kneeling on the floor and the outer layer of skin on her kneecap center lifted. The Veteran detailed the various phases of her right knee injury and stated that as a result of her right scar disability she has had to adapt her methods for performing daily tasks and has had to rely on others to assist her with ground-level projects due to the pain and functional limitations resulting from the right knee scars. See Correspondence Received August 2021. The Board notes that the photographs of the Veteran's right knee scars, referenced by the Veteran and CG were received by the Board in October 2021 and are currently of record. See Medical Treatment Record Received October 2021. In August 2021, the Veteran submitted additional evidence and a Waiver of Opportunity to Submit Additional Evidence or Argument and Additional Evidence Response Form and requested that the case be sent back to the agency of original jurisdiction (AOJ) for review of the additional evidence submitted. Therefore, a remand is necessary for the AOJ to consider the additional evidence. The matters are REMANDED for the following action: 1. After undertaking any further development deemed warranted, readjudicate the Veteran's claim, to include consideration of whether the Veteran's right scars disability is both unstable and painful and entitled to an additional 10 percent rating pursuant to DC 7804, Note (2). The AOJ is asked to consider the evidence and argument of record, including specifically the Veteran's September 2020 Board hearing testimony and the following: (a.) the August 2021 statement submitted by CG (the Veteran's spouse) who attested to the severity and the painful and physically limiting effects that the Veteran's right knee scars have on the Veteran's ability to perform every day activities including gardening, painting, working on the farm; (b.) the August 2021 statement submitted by the Veteran who asserts that the pain and limitations of her right knee scar disability has forced her to adapt methods in order to perform daily tasks and has forced her to rely on others to assist her with ground-level projects; and (c.) the photographs received in October 2021 of the Veteran's right knee disability. 2. If the claim remains denied, furnish the Veteran and her representative a Supplemental Statement of the Case (SSOC) and afford her an appropriate period of time to respond. Thereafter, the case should be returned to the Board for further appellate consideration. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dorsey-Kwansa, 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.