Citation Nr: 21068626 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-26 128 DATE: November 10, 2021 ORDER Entitlement to a rating in excess of 10 percent for right knee surgical scars is denied. Entitlement to an earlier effective date prior to August 2012 for the assignment of a 10 percent disability rating for service-connected right knee surgical scars is denied. FINDINGS OF FACT 1. The Veteran has two right knee surgical scars that are painful, but are not unstable. 2. In August 1990 and October 1997 rating decisions, the Agency of Original Jurisdiction continued the 10 percent disability rating for residuals of a right knee injury with medial meniscectomy. The Veteran was notified of the decisions and did not appeal or submit new and material evidence within the one-year periods thereafter. 3. The Veteran filed an increased rating claim for his service-connected right knee injury on August 7, 2012. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for right knee surgical scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804. 2. The August 1990 and October 1997 rating decisions denying an increased disability rating for residuals of right knee injury with medial meniscectomy are final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.1103. 3. The criteria for entitlement to an earlier effective date for a disability rating for service-connected right knee surgical scars have not been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. § 3.400(o)(1). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1969 to January 1972. This case comes before the Board of Veterans' Appeals (Board) on appeal of a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran elected a Board hearing on his Form 9 received April 2017. However, in a statement received October 2021, the Veteran withdrew his hearing request, stating that he wished to change his appeal to a direct review. As such, no hearing was held regarding the above claims and the Board will consider the case on the evidence of record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 38 Vet. App. 366, 369-70 (2017). 1. Entitlement to a rating in excess of 10 percent for right knee surgical scars. The Veteran asserts he is entitled to a rating greater than 10 percent for his right knee surgical scars. The Veteran stated in his NOD, that his evaluation should be more than 10 percent considering the time frame and age and the severe pain and swelling he endures. The Board notes the Veteran was granted a separate noncompensable service connection for linear surgical scars under Diagnostic Code 7805. Under Diagnostic Code 7805, scars and other effects of scars may receive an evaluation under Diagnostic Codes 7800, 7801, 7802, and 7804. 38 C.F.R. § 4.118, Diagnostic Code 7805. Diagnostic Code 7804 is applied to unstable or painful scars, and a 10 percent rating is warranted for one or two scars that are unstable or painful; a 20 percent rating is warranted for three or four scars that are unstable or painful; and a 30 percent rating is warranted 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 skin over the scar. Id., at Note 1. Also, if one or more scars are both unstable and painful, VA is to add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Id., at Note 2. The Veteran was afforded a VA examination to evaluate the right knee surgical scars in June 2013. The examination report noted the Veteran had two scars, both four centimeters, on his right posteromedial knee, status post meniscectomy. The Veteran reported flare-ups and swelling with normal range of motion. The examiner found no loss of covering of skin over the scars, indicating neither scar was unstable. The Veteran reported pain and discomfort of his right knee on a private medical treatment from Dr. T.H. received May 2013. The Veteran was afforded another VA examination in February 2017. The Veteran reported the scars as a painful burning sensation with throbbing. The first scar, located medial aspect of the right knee, measured seven centimeters. The second scar, located lateral aspect of the right knee, measured five centimeters. The Veteran reported limitation of function due to pain with bending, sitting, and walking, as well as painful to touch with clothing. No range of motion testing was conducted. The examiner found no loss of covering of skin over the scars, indicating neither scar was unstable. The Board sympathizes that the Veteran reports experiencing severe pain in his right knee. However, while that the Veteran is competent to report the observable manifestations of his claimed disability, he is not competent to render a diagnosis based on the manifestation of those symptoms since he does not have the requisite medical knowledge or training. See Layno v. Brown, 6 Vet. App. 465, 469-70 (1994); see Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Further, a 10 percent rating for the Veteran's residual scar contemplates that the scar causes some pain and discomfort. A higher rating is warranted for three to four scars, which is not present here, or one or two painful or unstable scars, with at least one scar being both painful and unstable. While the Veteran clearly experiences pain with his scars, there is no indication that either right knee scar is unstable. The Veteran indicated in his notice of disagreement that his knee buckles and his 2017 VA examination the Veteran stated he had painful flexion. As previously advised by the AOJ, the Veteran may file a separate service connection claim for additional knee disabilities. Unfortunately, under the claimed condition currently before the Board, an increased rating greater than 10 percent for right knee surgical scars, is not warranted. 2. Entitlement to an earlier effective date for service-connected right knee surgical scars. A brief procedural history is necessary. In January 1972 the Agency of Original Jurisdiction (AOJ) granted service connection for residuals of a right knee injury, rated 10 percent disabling. The Veteran was notified of the decision and did not appeal or submit new and material evidence within the one-year period thereafter. An August 1990 rating decision recharacterized the disability to include residuals of meniscectomy and denied an increased rating. The Veteran was notified of the decision and did not appeal or submit new and material evidence within the one-year period thereafter. In an October 1997 rating decision, the AOJ continued the 10 percent disability rating for residuals of a right knee injury with medial meniscectomy. The Veteran was notified of the decision and did not appeal or submit new and material evidence within the one-year period thereafter. The Veteran filed an increased rating claim for his service-connected right knee injury on August 7, 2012. Service connection for right knee surgical scars was granted with an evaluation of 0 percent in a rating decision dated July 6, 2013 because the AOJ determined this issue to be within the scope of the Veteran's claim for an increased evaluation. The Veteran filed a Notice of Disagreement (NOD) on July 8, 2014, and the evaluation of right knee surgical scars was increased to 10 percent disabling in a rating decision dated June 3, 2015, effective August 7, 2012. The Veteran filed another NOD in May 2016 disagreeing with the 10 percent evaluation for his right knee surgical scars and the effective date. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110 (a). The effective date of an award for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if the claim is received within one year from such date; otherwise, it is the date of receipt of the claim. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. § 3.400 (o)(2). As noted above, the Veteran contends that he is entitled to an earlier effective date, prior to August 7, 2012, for the award of a 10 percent disability rating for his right knee surgical scars. However, the Board finds that entitlement to an earlier effective date has not been established. As the Veteran's claim for an increased disability rating was filed on August 7, 2012, and the record does not establish in this case that an increase in disability occurred within one year prior to the Veteran's date of claim, as any pertinent evidence was received after the claim, the Board finds that the record in this case does not establish entitlement to an earlier effective date. While the extent of the Veteran's appeal for an earlier effective date is not clear, to the extent he may believe he should have been awarded a separate rating for scars in the 1990 and/or 1997 rating decisions, those decisions are final, and he has not filed a motion to revise them based on clear and unmistakable error with sufficient specificity for the Board to consider it. Such motions have specific pleading requirements, and he should consult with his representative. However, here, as the prior denials are final and there were no pending claims, the 2012 claim for an increase is the claim that lead to the award of a separate rating. As it is not factually ascertainable the scars warranted a separate rating within the year prior to that claim, an earlier date is not warranted. MICHELLE L. KANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Townsend, 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.