Citation Nr: 21068003 Decision Date: 11/08/21 Archive Date: 11/08/21 DOCKET NO. 17-11 331 DATE: November 8, 2021 ORDER Severance being improper, restoration of service connection for left knee instability is granted. Severance being improper, restoration of service connection for a left knee scar is granted. Entitlement to an initial compensable rating for a left knee scar is denied. REMANDED Entitlement to an increased rating in excess of 10 percent for left knee chondromalacia is remanded. Entitlement to an initial rating in excess of 20 percent for left knee instability, to include entitlement to a separate rating prior to September 30, 2019, is remanded. FINDINGS OF FACT 1. There is not clear and unmistakable evidence establishing that the Veteran did not have left knee instability or a left knee scar due to his left knee chondromalacia. 2. The Veteran's left knee scar is not painful or unstable, has not resulted in functional impairment, and does not affect an area of at least 6 square inches (39 square centimeters). CONCLUSIONS OF LAW 1. The severance of service connection for left knee instability was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. 2. The severance of service connection for a left knee scar was improper. 38 U.S.C. § 5112; 38 C.F.R. § 3.105. 3. The criteria for an initial compensable rating for a left knee scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.3, 4.7, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1986 to September 1992. The Veteran appealed a February 2016 rating decision by the Agency of Original Jurisdiction (AOJ), denying an increased rating higher than 10 percent for the Veteran's left knee chondromalacia. The Board of Veterans' Appeals (Board) remanded the Veteran's claim in December 2018 for an additional examination. A December 2019 rating decision granted service connection for left knee instability at 20 percent disabling effective September 30, 2019 and a left knee scar at noncompensable levels effective September 16, 2016. An April 2020 Board decision remanded the three separate left knee ratings for another examination. As the ratings regarding left knee instability and the left knee scar were only awarded for part of the period on appeal, the remand order included a determination on whether the Veteran was entitled to a separate rating prior to their effective dates. While in remand status, based on purported clear and unmistakable error (CUE), an August 2020 rating decision proposed severing service connection for the Veteran's left knee instability, left knee scar, 100 percent temporary evaluation for the left knee surgery, and special monthly compensation (SMC) at the housebound rate. A September 2020 rating decision granted SMC at the housebound rate from September 17, 2015. A November 2020 rating decision severed service connection for left knee instability and a left knee scar effective February 1, 2021 based on CUE. The Board notes that the Veteran's 100 percent temporary evaluation for the left knee surgery was not disturbed and the Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) and SMC for the entire period on appeal. See September 2015 correspondence; November 2020 rating decision codesheet. An August 2021 Board decision remanded the issues for a new supplemental statement of the case (SSOC) since the AOJ failed to address all issues in the previous August 2020 SSOC. The Board finds that it must address the issues regarding severance of service connection for left knee instability and a left knee scar as those issues were inherently on appeal with respects to the increased rating claim for the Veteran's left knee chondromalacia. Although the August 2021 Board decision and September 2021 SSOC characterized and included the issues of entitlement to an earlier effective date regarding left knee instability and a left knee scar, the Board finds the issues are more appropriately characterized as consideration for a separate rating prior to their effective date and need not be a separate issue. This is how the issues were originally characterized in the April 2020 Board decision. The Board notes the Veteran originally did not appeal the effective date regarding his left knee rating. See April 2016 notice of disagreement (NOD); January 2017 VA Form 9. As such, the separate rating issues may be addressed in the increased rating section rather than a separate earlier effective date section. Severance Service connection will be severed only where evidence establishes that it is clearly and unmistakably erroneous (the government has the burden of proof). 38 C.F.R. § 3.105(d). In pertinent part, to establish that a grant of service connection was the product of CUE, VA must show that (1) either the correct facts as they were known at the time were not before the adjudicator, the adjudicator made an erroneous factual finding, or the statutory or regulatory provisions were incorrectly applied; (2) the alleged error was undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the error manifestly changed the outcome of the prior decision. See Allen v. Nicholson, 21 Vet. App. 54, 58-59 (2007); Stallworth v. Nicholson, 20 Vet. App. 482, 487-88 (2006). A clear and unmistakable error is one about which reasonable minds could not differ. See, e.g., 38 C.F.R. § 20.1403(a). As a threshold matter, the Board finds that the AOJ followed the proper due process steps for severance of service connection. First, the AOJ issued a proposed severance in August 2020. The Veteran was notified in August 2020 correspondence at his latest address of record of this contemplated action with furnished detailed reasons and was given 60 days for the presentation of additional evidence to show that service connection should be maintained. The Veteran was also notified of the opportunity for a predetermination hearing, but did not elect for a hearing. A final action was made in a November 2020 rating decision. The effective date of the action was after the last day of the month in which a 60-day period from the date of notice of final action. In review of the AOJ's actions, all due process requirements were met in severing service connection. See 38 C.F.R. § 3.105(d), (i). Thus, the issue before the Board is whether the grant of service connection for the Veteran's left knee instability and left knee scar was the product of CUE. For the reasons that follow, the Board finds that the evidence of record does not establish CUE. The November 2020 rating decision severed service connection for left knee instability and a left knee scar because the AOJ found the conditions were not a progression of left knee chondromalacia and that the Veteran suffered a different and new injury to the left knee in 2012 when a box fell on his leg. The August 2020 rating decision proposing severance of service connection noted the January 2016 opinion. The January 2016 opinion noted the possible lateral meniscus degeneration is a new and separate diagnosis and not a progression of chondromalacia. However, this opinion does not speak to left knee instability and the reason for the left knee scar that was incurred via the September 2016 left knee surgery. The September 2019 examination reports noted increased left knee pain and instability. However, medical evidence does not suggest left knee instability solely due to the 2012 incident of a box falling on the Veteran's leg. Furthermore, the September 2016 treatment records regarding the Veteran's left knee surgery do not solely identify the 2012 incident of a box falling on the left knee as the reason for the procedure. Medical evidence leading up to September 2016 does not mention the 2012 box incident. Overall, from the medical evidence of record, it cannot be said the Veteran's current service-connected left knee chondromalacia did not cause left knee instability or be a reason for the need for left knee surgery in September 2016 resulting in the left knee surgical scar. Therefore, the evidence does not show that there was CUE in the December 2019 rating decision establishing service connection for left knee instability and a left knee scar. Accordingly, the severance of service connection for left knee instability and a left knee scar was improper and restoration of service connection for left knee instability and a left knee scar is granted. Increased Rating When a Veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 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. Where the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 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," whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Under Diagnostic Code 7800, a 10 percent rating is warranted for burn scars of the head, face, or neck; or scars of the head, face, or neck due to other causes; or other disfigurement of the head, face, or neck - when the skin disability has one characteristic of disfigurement. See 38 C.F.R. § 4.118, Diagnostic Code 7800. Under Diagnostic Code 7801, a 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage that affect an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.). Id. Higher ratings are available for scars that affect a larger area. Under Diagnostic Code 7802, a maximum 10 percent rating is warranted for burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with soft tissue damage, that affect an area or areas of 144 square inches (929 sq. cm.) or greater. Id. Under Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent disability rating. 38 C.F.R. § 4.118, Diagnostic Code 7804. A 20 percent disability rating is applicable when there are three or four scars that are unstable or painful. Id. A maximum 30 percent rating is warranted when there are five or more scars that are unstable or painful. Id. Under Diagnostic Code 7805, scars and other effects of scars are evaluated under Diagnostic Codes 7800, 7801, 7802, or 7804. 38 C.F.R. § 4.118, Diagnostic Code 7805. The Board initially notes that Diagnostic Code 7800 is not for application as the scars do not affect the head, face or neck. Further, Diagnostic Codes 7801 and 7802 are not applicable because the evidence does not demonstrate, nor does the Veteran contend that the scars affect an area of at least 6 square inches (39 square centimeters). Therefore, to warrant a rating under Diagnostic Code 7804, the evidence must demonstrate unstable or painful scars. Diagnostic Code 7804, Note 1, indicates that an unstable scar is one where for any reason, there is frequent loss of covering of skin over the scar. The October 2019 examination report regarding scars noted a single scar on the left knee that is 0.5 x 0.2 cm with a total area of 0.1 cm squared. The Veteran's scar was not noted to be painful or unstable. Overall, the competent medical evidence does not note a painful or unstable scar and the total surface area does not amount to compensable levels. The Veteran has not provided additional details or argument regarding his left knee scar. Accordingly, entitlement to a compensable level for the Veteran's left knee scar is denied. Furthermore, the Board notes the Veteran's left knee scar arose from his September 16, 2016 left knee surgery. See September 2016 treatment records; September 2019 examination report. The Veteran is granted service connection for a left knee scar from September 16, 2016. Therefore, the Veteran is not entitled to a separate rating for his left knee scar prior to September 16, 2016. REASONS FOR REMAND The Board finds that further evidentiary development is necessary and remands the case to ensure compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted in the April 2020 Board decision, previous examinations regarding the Veteran's left knee condition are inadequate as they do not adequately account for or elicit information regarding flare-ups. The August 2020 examination report noted flare-ups with standing and that weather triggers the Veteran's knee pain. The August 2020 examiner noted the examination was not conducted during a flare-up, that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss during flare-ups, that there was no significant limitations with functional ability with flare-ups, and range of motion (ROM) was noted to be 0 to 100 degrees. The Board notes the ROM measurements during flare-ups are the same as the initial ROM measurements. Overall, it does not appear that the August 2020 examiner elicited sufficient information regarding flare-ups, especially regarding limitations during weather changes. The Board notes the August 2020 examination was conduction during a summer month. The August 2020 examiner obtained limited information regarding flare-ups and proceeded to find the same ROM measurements despite any flare-ups. The Board finds this to be an inaccurate representation of the Veteran's flare-ups. Therefore, remand is required for another examination to determine the severity of the Veteran's left knee condition and adequately account for flare-ups. The issue regarding left knee instability is inextricably intertwined with the left knee chondromalacia issue. Accordingly, the Board will defer adjudication on the matter. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to treatment the Veteran received for his left knee condition that are not already of record. All obtained records should be associated with the evidentiary record. If any identified records are not obtainable (or none exist), the Veteran and his representative should be notified, and the record clearly documented. 2. Thereafter, schedule the Veteran for an examination of the current severity of his left knee condition. The examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing (if applicable). The examiner must also attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner should identify any symptoms and functional impairments due to the Veteran's condition and discuss the effect of the Veteran's condition on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). (Continued on the next page) 3. After the above development has been completed to the extent possible, readjudicate the claims. If any benefit sought remains denied, provide the Veteran and his representative with a SSOC, and return the case to the Board, if otherwise in order. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Zheng, 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.