Citation Nr: 21071856 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-56 683 DATE: December 1, 2021 ORDER Entitlement to an initial 10 percent rating for a left knee surgical scar is granted. REMANDED Entitlement to service connection for a right knee disability as secondary to the service-connected left knee disability is remanded. Entitlement to service connection for a right knee scar is remanded. Entitlement to service connection for a bilateral foot disability as secondary to the service-connected left knee disability is remanded. Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to a total rating for compensation purposes based on individual unemployability (TDIU) is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, the irritability of the scar requiring the use of ointment is analogous to one painful scar without instability. CONCLUSION OF LAW The criteria for a 10 percent rating for left knee surgical scar are approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Codes 7800-7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1968 to September 1971. This appeal stems from June and December 2013 rating decisions. In August 2021, the Veteran testified in a virtual hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript is of record and has been reviewed. Initial Rating for a Left Knee Surgical Scar The RO rated the Veteran's left knee scar under 38 C.F.R. § 4.118, Diagnostic Code 7805, which applies to other scars (including linear scars). Diagnostic Code 7805 instructs that any disabling effects not considered in a rating provided under Diagnostic Codes 7800 through 7804 should be evaluated under an appropriate Diagnostic Code. The Board notes that VA amended the criteria for rating skin disabilities during the pendency of this claim, effective from August 13, 2018. However, these August 13, 2018 amendments did not change Diagnostic Code 7805. Under Diagnostic Code 7805, 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. A 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7805. Notes with the Diagnostic Code explain that an unstable scar is one where, for any reason, there is frequent loss of covering over the skin, and that if one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7805, Notes (1)-(2). In light of the applicable rating criteria, the Board finds that, for the following reasons, the Veteran's left knee scar, has met the criteria for a 10 percent rating throughout the pendency of the appeal. During a May 2013 knee compensation examination, the examiner noted that the Veteran's left knee scar measured 15 centimeters wide. In November 2013, the Veteran underwent a scars compensation examination, at which time the examiner identified one left knee scar. The scar was not painful, unstable, or with frequent loss of covering of skin over the scar. This examiner noted that the scar was linear and measured 19 centimeters. The scar caused no functional impact. During the August 2021 hearing, the Veteran testified that while the scar was not painful per se, it gets irritated every time his clothing touch it, and that requires the use of an ointment to do away with the irritation. He added that the scar is approximately a foot long. He stated that the scar appears raised above the skin; it rubs against clothing causing friction. In September 2021 correspondence, the Veteran stated that the ointments he uses to treat his scar are Benadryl, Hydrocortisone, and/or Calamine. On review of all the evidence, lay and medical, the Board finds that an initial 10 percent rating is warranted. The Veteran's statement that his left knee surgical scar becomes irritated from the friction caused by his clothing is deemed competent and credible. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board resolves any reasonable doubt and finds that the irritation he describes is analogous to pain in the scar, warranting a 10 percent rating under Diagnostic Code 7805. However, a higher rating under this code is not warranted as the Veteran is service connected for no more than one left knee surgical scar, and there is no evidence showing that the scar is both painful and unstable. 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, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). REASONS FOR REMAND A remand is necessary to provide VA examinations with regard to the claims of service connection for right knee disability, bilateral foot disabilities, and bilateral hearing loss. Right Knee Disability, Right Knee Scar, and Bilateral Foot Disabilities During the August 2021 hearing, the Veteran explained that his primary contention is that his right knee and bilateral foot disabilities are secondary to his service-connected left knee disability. Accordingly, examinations with medical opinions are necessary prior to analyzing the merits of these claims. The right knee scar claim is intertwined with the right knee claim and must therefore be deferred pending adjudication of the claimed right knee disability. Bilateral Hearing Loss Service connection for bilateral hearing loss was previously denied because the Veteran did not meet the criteria for a diagnosis of hearing loss disability for VA purposes. However, during the 2021 Board hearing, the Veteran reported that his hearing worsened. Accordingly, re-examination is warranted. TDIU A claim for TDIU is considered part and parcel of an increased rating claim, when such a claim is raised by the appellant or the record. See Rice v. Shinseki, App. 447 (2009). According to a September 2021 statement authored by the Veteran's spouse, the Veteran quit his job because of the limitations caused by his service-connected left knee disability. As the issue of entitlement to a TDIU has been raised by the record during this appeal, which includes a claim for an increased rating. The matters are REMANDED for the following action: 1. Ensure that all outstanding VA treatment records are associated with the claims file. 2. Provide the Veteran with an appropriate VA examination to help determine the likely etiology of the claimed right knee and bilateral foot disabilities. The claims file and a copy of this remand will be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify any diagnosed right knee and right/left foot disabilities during the pendency of the appeal beginning December 2011. (b) For each currently diagnosed right knee and right/left foot disabilities, opine whether it is at least as likely as not (a 50 percent probability or higher) that it was caused OR aggravated by the service-connected left knee disability. A complete rationale for both causation AND aggravation should be provided. 3. Provide the Veteran with an updated VA audiology examination. Any necessary tests or studies must be conducted, and all clinical findings should be reported in detail. The claims file, and a copy of this Remand, should be made available to the examiner, who will acknowledge receipt and review of these materials. After a review of the record and examination of the Veteran, the examiner is asked to respond to the following: (a) Identify any currently diagnosed hearing loss disability for VA purposes that has been present at any point during the period on appeal beginning December 2011. (b) If hearing loss for VA purposes is shown in either ear during the appeal period, opine whether it is at least as likely as not (a 50 percent probability or higher) that it had its onset during service or is otherwise related to the conceded noise exposure during service. Please note, the Veteran is currently service connected for tinnitus. A complete rationale should be provided for all opinions. (Continued on the next page) 4. Send the Veteran the appropriate notice as to how to substantiate his request for a TDIU, including a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, for completion, with instructions to return the form to the RO. 5. Thereafter, readjudicate the remanded claims. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.