Citation Nr: 21068141 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 17-37 906 \ DATE: November 9, 2021 ORDER Prior to January 27, 2020, an initial rating of 10 percent for diverticulitis, status post small intestine surgical repair, is granted. A rating in excess of 10 percent for diverticulitis, status post small intestine surgical repair, is denied. A compensable rating for a residual scar from an incisional hernia repair is denied. A compensable rating for an incisional hernia is denied. A rating in excess of 10 percent for left knee osteoarthritis, status post anterior cruciate ligament (ACL) repair, is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's service-connected diverticulitis, status post small intestine surgical repair, has resulted in no more than frequent episodes of diarrhea. 2. Throughout the period on appeal, the Veteran's service-connected residual scar from an incisional hernia repair has been manifested by one scar measuring 30 centimeters by 2 centimeters, which was neither painful nor unstable, did not involve underlying soft tissue damage, and did not cause any disabling effects. 3. Throughout the period on appeal, the Veteran's service-connected incisional hernia has been manifested by no recurrence of a hernia and no symptoms or functional limitation attributable to the Veteran's in-service hernia repair. 4. Throughout the period on appeal, the Veteran's service-connected left knee osteoarthritis, status post ACL repair, has been manifested by, at worst, flexion limited to 115 degrees upon repetition, full range of extension, and no evidence of instability. CONCLUSIONS OF LAW 1. Prior to January 27, 2020, the criteria for an initial rating of 10 percent for diverticulitis, status post small intestine surgical repair, have been more nearly approximated. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.114, Diagnostic Codes 7319, 7327 (2020). 2. The criteria for a rating in excess of 10 percent for diverticulitis, status post small intestine surgical repair, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.114, Diagnostic Codes 7301, 7319, 7323, 7327 (2020). 3. The criteria for a compensable rating for a residual scar from an incisional hernia repair have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, 7805 (2020). 4. The criteria for a compensable rating for an incisional hernia have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38C.F.R. § 4.114, Diagnostic Code 7338 (2020). 5. The criteria for a rating in excess of 10 percent for left knee osteoarthritis, status post ACL repair, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38C.F.R. § 4.71a, Diagnostic Codes 5260, 5261, 5257 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1989 to January 1993 and from November 1998 to December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from April 2012 and August 2012 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2019, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. Disability Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2020). 1. Entitlement to a higher rating for diverticulitis, status post small intestine surgical repair Disabilities of the digestive system are evaluated under 38 C.F.R. § 4.114, which provides that ratings under Diagnostic Codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, inclusive, will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability picture, with evaluation of the next higher rating where the severity of the overall disability warrants such rating. 38 C.F.R. § 4.114. Diagnostic Code 7327 instructs to rate diverticulitis as irritable colon syndrome, peritoneal adhesions, or ulcerative colitis, depending on the predominant disability picture. Irritable colon syndrome is evaluated under Diagnostic Code 7319, which provides a noncompensable rating for mild irritable colon syndrome, resulting in disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is assigned for moderate irritable colon syndrome, resulting in frequent episodes of bowel disturbance with abdominal distress. A maximum 30 percent rating is assigned for severe irritable colon syndrome, resulting in diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, Diagnostic Code 7319. Peritoneal adhesions are evaluated under Diagnostic Code 7301, which provides for a noncompensable rating for mild peritoneal adhesions. A 10 percent rating is assigned for moderate peritoneal adhesions; pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. A 30 percent rating is assigned for moderately severe peritoneal adhesions; partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. A maximum 50 percent rating is assigned for severe peritoneal adhesions; definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. 38 C.F.R. § 4.114, Diagnostic Code 7301. Ratings for adhesions will be considered when there is history of operative or other traumatic or infectious (intraabdominal) process, and at least two of the following: disturbance of motility, actual partial obstruction, reflex disturbances, presence of pain. 38 C.F.R. § 4.114, Note to Diagnostic Code 7301. Ulcerative colitis is evaluated under Diagnostic Code 7323, which provides for a 10 percent rating for moderate ulcerative colitis with infrequent exacerbations. A 30 percent rating is assigned for moderately severe ulcerative colitis with frequent exacerbations. A 60 percent rating is assigned for severe ulcerative colitis with numerous attacks a year and malnutrition, with health only fair during remissions. A 100 percent rating is assigned for pronounced ulcerative colitis resulting in marked malnutrition, anemia, and general debility, or with serious complications, such as liver abscess. 38 C.F.R. § 4.114, Diagnostic Code 7323. Words such as "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The Veteran's service-connected diverticulitis has been assigned an initial 0 percent rating prior to January 21, 2020, and a 10 percent rating thereafter based on symptoms of diarrhea. Upon review of the record, the Board finds that an initial 10 percent rating for diverticulitis is warranted throughout the period under review. The Veteran underwent a VA examination in May 2012, at which time the examiner indicated that he had no current symptoms related to his diverticulitis, status post small bowel excision. There were no episodes of bowel disturbance with abdominal distress or exacerbations or attacks of intestinal condition, no weight loss or malnutrition, and no functional impact. VA treatment records shows that in July 2014, the Veteran reported symptoms of diarrhea. In August 2015, he reported stooling about 10 to 15 minutes after every meal. He reported that some stools were loose, and he had occasional abdominal pain before stooling and increased flatus. In May 2016, it was noted that the Veteran had a history of diverticulosis with perforation surgery, and he reported stooling about 10 to 15 minutes after every meal ever since he returned from Bahrain. In June 2017 and June 2018, the Veteran reported no change in his bowel habits. In a July 2017 written statement, the Veteran asserted that he has constipation or diarrhea within 30 minutes of eating anything. The Veteran underwent another VA examination in January 2020, during which he reported having soft stools and sometimes diarrhea about 30 minutes after eating. There were no episodes of bowel disturbance with abdominal distress or exacerbations or attacks of intestinal condition, no weight loss or malnutrition, and no functional impact. After resolving any doubt in favor of the Veteran, the Board finds that the evidence of record more nearly approximates frequent episodes of bowel disturbance throughout the period on appeal. Accordingly, an initial 10 percent rating is granted. See 38 C.F.R. § 4.114, Diagnostic Code 7319. The Board finds that a rating in excess of 10 percent is not warranted at any time, as the record shows no evidence of severe irritable colon syndrome resulting in diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. See 38 C.F.R. § 4.114, Diagnostic Code 7319. Moreover, there is no evidence of peritoneal adhesions or moderately severe ulcerative colitis with frequent exacerbations. See 38 C.F.R. § 4.114, Diagnostic Codes 7301, 7323. Accordingly, a rating in excess of 10 percent is denied. 2. Entitlement to a compensable rating for an incisional hernia The Veteran's service-connected incisional hernia has been assigned an initial 0 percent rating. Under Diagnostic Code 7338, a noncompensable rating is assigned for an inguinal hernia that is small, reducible, or without true hernia protrusion; or where it is not operated, but remediable. A 10 percent rating is assigned for a recurrent post-operative hernia that is readily reducible and well supported by truss or belt. A 30 percent rating is assigned for a small, postoperative recurrent hernia, or an unoperated irremediable hernia that is not well-supported by truss or that is not readily reducible. A maximum schedular rating of 60 percent is warranted for a large, postoperative, recurrent hernia that is considered inoperable that is not well-supported under ordinary conditions and is not readily reducible. 38C.F.R. § 4.114, Diagnostic Code 7338. The Veteran received VA examinations in May 2012 and January 2020, during which it was noted that he underwent an incisional hernia repair in 2008. Both examiners indicated that there was no evidence of any recurrence of a hernia, and a physical examination of the abdomen revealed no pain or tenderness. There were no symptoms or functional limitation attributable to the Veteran's in-service hernia repair. Treatment records during the period under review likewise do not show any recurrence of a hernia or any symptoms attributable to the Veteran's in-service hernia repair. Based on the foregoing, the Board finds that a compensable rating for an incisional hernia is not warranted at any time during the period under review. See 38C.F.R. § 4.114, Diagnostic Code 7338. 3. Entitlement to a compensable rating for a residual scar from an incisional hernia repair Scars, other than of the head, face, or neck, are evaluated under 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804, and 7805. Under Diagnostic Code 7801, a scar not of the head, face, or neck that is deep and nonlinear warrants a 10 percent rating for an area of at least 6 square inches (36 sq. cm.) but less than 12 square inches (77 sq. cm.); a 20 percent rating for an area of at least 12 square inches but less than 72 square inches (465 sq. cm.); a 30 percent rating for an area of at least 72 square inches but less than 144 square inches (929 sq. cm.); and a maximum 40 percent rating for an area of 144 square inches or greater. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2018). A deep scar is one associated with underlying soft tissue damage. Id. at Note (1). Effective August 13, 2018, Diagnostic Code 7801 was amended and now provides for scars not of the head, face, or neck that are associated with underlying soft tissue damage. However, the rating criteria remains the same. Under Diagnostic Code 7802, a scar not of the head, face or neck that is superficial and nonlinear warrants a maximum 10 percent rating for an area measuring 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2018). A superficial scar is one not associated with underlying soft tissue damage. Id. at Note (1). Effective August 13, 2018, Diagnostic Code 7802 was amended and now provides for scars, not of the head, face, or neck that are not associated with underlying soft tissue damage. However, the rating criteria remains the same. Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful; a 20 percent rating is assigned for three or four scars that are unstable or painful; and a maximum 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of the skin over the scar. Id. at Note (1). An additional 10 percent may be added if a scar is both unstable and painful. Id. at Note (2). Under Diagnostic Code 7805, other disabling effects not considered under Diagnostic Codes 7800, 7801, 7802, and 7804 are rated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805. Upon review of the record, the Board finds that a compensable rating for a residual scar from an incisional hernia repair is not warranted at any time during the period under review. The Veteran underwent VA examinations in May 2012 and January 2020, during which the examiners observed one scar on the Veteran's abdomen from a partial small bowel excision and incisional hernia repair, measuring 30 centimeters by 2 centimeters (60 sq. cm.). There was no underlying soft tissue damage. The scar was neither painful nor unstable and did not cause disabling effects. Accordingly, a compensable rating for a residual scar is denied. 4. Entitlement to a rating in excess of 10 percent for left knee osteoarthritis, status post ACL repair Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Degenerative or traumatic arthritis established by x-ray findings is rated on the basis of limitation of motion for the specific joint or joints involved. 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5010. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is warranted for each major joint or group of minor joints affected by limitation of motion. Id. Painful joints are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. Limitation of motion of the knee is evaluated under Diagnostic Codes 5260 (flexion) and 5261 (extension). Under Diagnostic Code 5260, a 10 percent rating is warranted where flexion is limited to 45 degrees; a 20 percent rating is warranted where flexion is limited to 30 degrees; and a maximum 30 percent rating is warranted where flexion is limited to 15 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5260. Full knee flexion is to 140 degrees. 38 C.F.R. § 4.71a, Plate II. Under Diagnostic Code 5261, a 10 percent rating is warranted where extension is limited to 10 degrees; a 20 percent rating is warranted where extension is limited to 15 degrees; a 30 percent rating is warranted where extension is limited to 20 degrees; a 40 percent rating is warranted where extension is limited to 30 degrees; and a maximum 50 percent rating is warranted where extension is limited to 45 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5261. Full knee extension is to 0 degrees. 38 C.F.R. § 4.71a, Plate II. A separate rating may also be assigned for instability of the knee. See VAOPGCPREC 23-97; 62 Fed. Reg. 63604 (1997) (arthritis of the knee may be assigned separate ratings for limitation of motion and instability, provided that any separate rating is based upon additional disability); see also 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259 (1994). Under Diagnostic Code 5257, a 10 percent rating is warranted for slight recurrent subluxation or lateral instability; a 20 percent rating is warranted for moderate recurrent subluxation or lateral instability; and a maximum 30 percent rating is warranted for severe recurrent subluxation or lateral instability. 38 C.F.R. § 4.71a, Diagnostic Code 5257. The Veteran's service-connected left knee disability has been assigned a 10 percent rating based on painful motion under 38 C.F.R. § 4.59. Upon review of the record, the Board finds that a rating in excess of 10 percent is not warranted any time during the period under review. The Board has reviewed and considered the Veteran's assertions in support of his claim, including his reports of knee pain when climbing stairs and an occasional feeling of buckling when walking, which affects his ability to stand and walk for long periods of time and engage in exercise. However, even considering the Veteran's subjective complaints of pain and other symptoms described in DeLuca, the probative evidence of record does not show left knee flexion limited to 30 degrees or less or extension limited to 15 degrees or more such that a higher rating would be warranted based on limitation of motion. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261; see also Thompson v. McDonald, 815 F.3d 781, 786 (Fed. Cir. 2016) (holding that provision describing functional loss due to disability of the musculoskeletal system does not supersede requirements for a higher rating specified in the Rating Schedule). The Veteran underwent a VA examination in December 2011, at which time range of motion testing revealed full range of flexion to 140 degrees or more. Although the examiner checked the box indicating that the left knee exhibited "45 degrees or greater" of extension, that appears to have been a typographical error, as it is inconsistent with the narrative of the examiner's report and the other evidence of record. Notably, the examiner indicated that the Veteran's left knee was normal; there was no diminished function; and the knee exhibited no functional loss or impairment, including less movement than normal. Thus, it appears that the examiner intended to check the box indicating that the left knee exhibited full range of extension. Additionally, subsequent treatment records show that in August 2015, the Veteran sought clearance to participate in a work exercise program. He denied any musculoskeletal complaints at that time and reported walking three miles a day, five days a week. It was noted that service connection was in effect for arthritis of the knee, and the Veteran was advised to take precautions and engage in common sense exercise. In September 2017, the Veteran's joints exhibited good range of motion. In June 2018, the Veteran denied any musculoskeletal problems. Accordingly, the Board assigns little, if any, probative weight to the December 2011 examination as it pertains to the degree of extension. Monzingo v. Shinseki, 26 Vet. App. 97, 105-7 (2012) (a VA examination report must be "read as a whole"). The Veteran underwent another VA examination in January 2020, at which time range of motion testing revealed flexion to 140 degrees and extension to 0 degrees. Upon repetition, flexion was limited to 115 degrees, but there was no limitation of extension. There was no evidence of localized tenderness or pain to palpation, pain with motion, pain with weight-bearing, flare ups, or ankylosis. Based on the foreign, the Board finds that the probative evidence of record shows, at worst, flexion limited to 115 degrees upon repetition and full range of extension. Accordingly, a rating in excess of 10 percent based on limitation of motion is not warranted at any time during the period under review. See 38 C.F.R. § 4.71a, Diagnostic Codes 5260, 5261. The Board also finds that a separate rating is not warranted for instability of the knee at any time during the period under review. Although the Veteran has reported feeling like his left knee is going to buckle, both the December 2011 and January 2020 VA examiners indicated that there was no history of recurrent subluxation or lateral instability, and anterior, posterior, medial, and lateral joint stability tests were all normal. Moreover, treatment records do not show any evidence objective of left knee instability. Accordingly, a separate rating for instability of the left knee is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5257. In reaching this decision, the Board has considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning ratings in excess of that already assigned, the doctrine is not for application. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banister, 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.