Citation Nr: 21075444 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 07-09 373 DATE: December 20, 2021 ORDER Prior to December 18, 2017, a compensable rating for right knee scars is denied. Effective December 18, 2017, a 10 percent rating for right knee scars is granted. Effective February 1, 2019, a 60 percent rating for a right knee disability status post total knee replacement is granted. REMANDED Entitlement to an initial rating higher than 20 percent for right total knee arthroplasty (previously rated as right knee anterior cruciate ligament tear, status post reconstruction with instability) from January 12, 2006 to January 8, 2008; 30 percent from January 9, 2008 to July 30, 2017; 100 percent from July 31, 2017 to September 30, 2017; 30 percent from October 1, 2017 to December 17, 2017; and 100 percent from December 18, 2017 to January 31, 2019, is remanded. Entitlement to an initial rating higher than 20 percent for right knee, torn meniscus, from January 9, 2008 to March 23, 2008; 100 percent from March 24, 2008 to June 30, 2008; and 10 percent July 1, 2008 to July 31, 2017, is remanded. Entitlement to an initial rating higher than 10 percent for right knee arthritis from January 12, 2006 to December 9, 2008; 100 percent from December 10, 2008 to March 31, 2009; and 10 percent from April 1, 2009 to December 18, 2017, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Prior to December 18, 2017, the evidence shows that the Veteran's right knee scars were not painful or unstable, were superficial, and measured less than 144 square inches (929 square cm). 2. The evidence shows that the Veteran has one painful right knee scar and four non painful right knee scars. The scars are not unstable, do not cause underlying tissue damage, and have a total area of 39.75 square centimeters. 3. Since February 1, 2019, the Veteran has experienced chronic residuals status post right knee replacement consisting of severe painful motion and weakness. CONCLUSIONS OF LAW 1. Prior to December 18, 2017, the criteria for an initial compensable disability rating for right knee scars are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, DCs 7800-7805. 2. Effective December 18, 2017, the criteria for a disability rating of 10 percent for right knee scars are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.118, DCs 7800-7805. 3. Since February 1, 2019, the criteria for a rating 60 percent, but no higher, for a right knee disability status post right knee replacement are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.1, 4.45, 4.71a, DC 5055. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 1999 to November 2003. This case is before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously remanded by the Board in November 2010, November 2013, November 2017, and July 2020. THE VETERAN'S CONTENTIONS The Veteran seeks initial higher ratings for his right knee disabilities. See December 2006 notice of disagreement (NOD); October 2010, November 2012, September 2017, July 2020, and August 2021 Informal Hearing Presentations (IHPs); August 2017 and September 2019 fully developed claim forms; August 2017 VA Form 646. He disagrees with the ratings assigned for range of motion, stability, pain and swelling. See March 2008 VA Form 9. He asserts that no doctor will be able to assess the condition of his knee prior to his surgery. See December 2017 correspondence. The Veteran also seeks entitlement to TDIU. See September 2017 and August 2021 IHPs. 1. Right knee scars The Veteran's right knee scars are currently rated noncompensable prior to September 12, 2018, and 10 percent thereafter under DC 7804. DCs 7800 through 7805 provide the applicable ratings for scars. DC 7800 provides for burn scars of the head, face or neck, scars of the head, face or neck due to other causes, or other disfigurement of the head, face, or neck. 38 C.F.R. § 4.118, DC 7800. Under the DC 7801, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear are evaluated as: area or areas of 144 square inches (929 sq. cm) or greater (40 percent); area or areas of at least 72 square inches (465 sq. cm) but less than 144 square inches (929 sq. cm) (30 percent); area or areas of at least 12 square inches (77 sq. cm) but less than 72 square inches (465 sq. cm) (20 percent); and area or areas of at least 6 square inches (39 sq. cm) but less than 12 square inches (77 sq. cm) (10 percent). Under the DC 7802, scars not of the head, face or neck, which are superficial and nonlinear are granted a 10 percent rating if they cover an area of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7802. Under DC 7804, one or two scars that are unstable or painful warrant a 10 percent rating. A 20 percent rating requires three or four scars that are unstable or painful. A 30 percent rating requires five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an additional rating under DC 7804, when applicable. 38 C.F.R. § 4.118, DC 7804. Under DC 7805, any disabling effects of other scars (including linear scars), and other effects of scars rated under DCs 7800, 7801, 7802, and 7804 not considered in a rating provided under DCs 7800-7804 are to be rated under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. Prior to December 18, 2017 The May 2006 VA examination showed three scars on the right knee anteriorly, measuring 7 cm by 1 millimeter (mm), 4 cm by 1 mm, and 1 cm by 1 mm. The scars were not painful, not unstable, and not adherent to underlying tissue. The scars were noted to be superficial; not deep. A December 2010 VA examination showed two scars, which measured 11 cm and 5 cm and were both healed. The March 2016 scars DBQ showed multiple surgical scars on the right knee, none of which are painful or unstable. The examiner noted three scars, which measured 7 centimeters (cm), 4 cm, and 1 cm, respectively. The May 2021 examiner determined that the Veteran had one painful scar due to his knee replacement in 2017. See May 2021 DBQ. He indicated that the other right knee scars were not painful. In sum, the Board notes that a compensable rating is not warranted for the Veteran's scars prior to his total knee replacement on December 18, 2017 because, prior to December 18, 2017, the evidence does not show that the Veteran's scars were painful or unstable, and the scars were superficial and measured less than 144 square inches (929 square cm). Since December 18, 2017 Effective August 13, 2018, VA amended its regulations governing skin disabilities. VA's intent is that claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. For applications filed on or after the effective date, only the new criteria will be applied. 83 Fed. Reg. 32592 (July 13, 2018). DC 7800 remained the same. DC 7801 was amended to remove "deep and nonlinear scars" which was replaced with "underlying soft tissue damage." DC 7802 was amended to remove "superficial and nonlinear" and was replaced with "not associated with underlying soft tissue damage." Note (1) now provides that for purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk. The midaxillary line divides the anterior trunk from the posterior trunk. Note (2) changed to a separate evaluation may be assigned for each affected zone of the body. Combine the separate evaluations under § 4.25. Alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. DCs 7804 and 7805 were unaffected by the recent revisions. The March 2019 and September 2019 DBQs note no objective evidence that any of the Veteran's scars are painful, unstable, have a total area equal to or greater than 39 square cm, or are located on the head, face, or neck. The examiner notes only one scar on the anterior knee, which measured 8 am by 0.3 cm. A May 2021 DBQ shows right knee scars status post multiple surgeries including ACL repair, meniscectomy, and total knee replacement with a date of diagnosis in 2003. The examiner noted one painful scar. He noted that this scar was from the Veteran's total knee replacement in 2017. The examiner determined that none of the scars were unstable. The Veteran's five scars measured as follows: 1) 20.5 by 1 cm; 2) 13 by 1 cm; 3) 1.5 by 0.1 cm; 4) 1 by 0.1 cm; 5) 6 by 1 cm. The total area of the scars is 39.75 square centimeters. The examiner noted that none of the scars had underlying tissue damage. The Board has considered both the former and revised rating criteria for scars. After a review of the evidence, the Board finds that a 10 percent rating is warranted for the Veteran's scar effective the date of his total knee replacement, December 18, 2017. However, a rating in excess of 10 percent is not warranted for the Veteran's scars as he does not have more than one painful or unstable scar; the scars are not on the head, face, or neck; and the scars are superficial. See May 2021 DBQ; 38 C.F.R. § 4.118, DCs 7800-7805. 2. Disability rating for right total knee replacement since February 1, 2019 The Veteran had a total knee joint replacement of the right knee on December 18, 2017. See March 2019 VA examination report. A 100 percent rating is in effect from December 18, 2017 to January 31, 2019. Since February 1, 2019, the Veteran's right knee disability is rated 40 percent disabling under DC 5055. DC 5055 provides criteria for rating knee disabilities that require knee replacement surgery. 38 C.F.R. § 4.71a. Under DC 5055, a 100 percent disability rating is assigned for one year following the surgery. Thereafter, the disability is to be rated as being no less than 30 percent disabling, but may be assigned a higher disability rating on the basis of demonstrated residual weakness, pain, or loss of motion consistent with the criteria under DCs 5256 (ankylosis), 5261 (limitation of extension), or 5262 (impairment of tibia and fibula). A 60 percent disability rating may also be assigned where the post-surgery evidence shows chronic residuals consisting of severe painful motion or weakness in the affected extremity. 38 C.F.R. § 4.71a, DC 5055. The Board notes that during the pendency of this appeal, the schedule for rating musculoskeletal disabilities was amended, effective February 7, 2021. See 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Where, as here, a diagnostic code is amended while a claim is pending, VA is required to consider both versions of the code and apply the version most favorable to the Veteran. Under the revised rating criteria, DC 5055 provides that when the Veteran has knee resurfacing or replacement (prosthesis), the 100 percent rating is to be reduced four month following implantation of prosthesis or resurfacing. As the former diagnostic criteria for 5055 provides a 100 rating for one year following implantation of prosthesis, the Board finds the prior version of DC 5055 is more favorable to the Veteran and as such will apply only the former criteria throughout the appeal period. Upon review of the evidence, the Board finds that, when reasonable doubt is resolved in the Veteran's favor, his right total knee replacement has resulted in chronic residuals consisting of severe painful motion and weakness, such that a 60 percent rating under DC 5055 is warranted effective February 1, 2019. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. At the Veteran's March 2019 and September 2019 Disability Benefits Questionnaire (DBQs), he reported flareups of his right knee condition consisting of pain, swelling on and off throughout the day, and stiffness in the morning. Range of motion was zero to 90 degrees and zero to 85 degrees after three repetitions. The March 2019 and September 2019 VA examiners noted muscle atrophy due to the right knee condition; no ankylosis; and no joint instability. The examiners determined that the residuals of the Veteran's right total knee replacement were intermediate degrees of residual weakness, pain, or limitation of motion. In March 2019, the examiner indicated that pain, weakness, fatigability, or incoordination significantly limit functional ability with flareups, and that the range of motion during a flareup was zero to 85 degrees. The September 2019 VA examiner determined that pain, weakness, fatigability, or incoordination did not significantly limit functional ability during a flareup. The May 2021 DBQ showed daily flare-ups of the right knee that last all day and are precipitated by walking, sitting, and stairs and alleviated by nothing. The Veteran reported limited range of motion, strength/ muscle atrophy, and effusion. The Veteran reported no instability. Active range of motion were zero to 110 degrees with pain on flexion and extension; and passive range of motion was zero to 120 degrees. The examiner noted evidence of pain on active and passive range of motion and that it caused functional impairment. He stated that pain, fatigability, weakness, and lack of endurance caused functional loss with repeated use over time and estimated the range of motion to be zero to 90 degrees with repeated use over time. He also noted fatigability, weakness, and lack of endurance caused functional use during flareup, and estimated the range of motion to be zero to 90 degrees during flareups. The examiner indicated that there was swelling and muscle atrophy. He determined there was no ankylosis, no recurrent subluxation or persistent instability; and no recurrent patellar dislocation, shin splints, stress fractures, or any other tibial or fibular impairment. He noted meniscal tear and frequent episodes of joint pain. The examiner determined that the residuals of the Veteran's 2019 right total knee replacement were intermediate degrees of residual weakness, pain, or limitation of motion. Despite the VA examiners' opinions that the Veteran's symptoms result in only intermediate degrees of residual weakness, pain, or limitation of motion; the Board resolves doubt in the Veteran's favor and finds that his symptoms are more analogous to chronic residuals consisting of severe painful motion or weakness in the affected extremity, and therefore a 60 percent rating is warranted. The Board has considered the other DCs relevant to a knee condition. Although the Veteran was previously rated under DSC 5259-5259 for torn meniscus of the right knee, the Board finds that neither DC 5258 or DC 5259 are applicable in a case involving a total knee replacement, as the cartilage has been removed. Further, higher or separate ratings are not warranted under DCs 5003 (arthritis),5259 (limitation of flexion), or 5261 (limitation of extension) as the Veteran's pain and limitation of motion is contemplated under DC 5055. The Board notes that a rating is not warranted for instability under 5257 because the VA examinations subsequent to February 1, 2019 show no instability. Higher or separate ratings are also not warranted under DC 5256 (ankylosis), 5262 (impairment of the tibia and fibula), or 5263 (genu recurvatum) as the VA examinations subsequent to February 1, 2019 show no ankylosis, no impairment of the tibia and fibula, and no genu recurvatum. In sum, resolving doubt in the Veteran's favor, the Board finds that a 60 percent rating is warranted effective February 1, 2019 for the Veteran's symptoms post right knee replacement. REASONS FOR REMAND 1. Higher disability ratings for a right knee disability prior to February 1, 2019 In November 2017, the Board remanded the Veteran's claims for higher ratings for his right knee disability to obtain a new VA examination as the prior March 2016 VA examination did not comply with Correia v. McDonald, 28 Vet. App. 158 (2016), which stated that "[t]he joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint." In July 2020 Board remand, the Board noted that, although the Veteran was provided VA knee examinations in March 2019 and September 2019, the examiners did not provide an assessment of the severity of the right knee that included examination and range of motion testing in weight-bearing and nonweight-bearing with passive and active ranges of motion testing; nor was a clear explanation provided as to why the examiner was unable to conduct the required testing or if it had been concluded that the required testing is not necessary. Further, the July 2020 Board remand notes that treatment records dated in October 2019 noted the Veteran reported his right knee had "popped" and that he was experiencing continued pain. In light of the complex medical issues involved in this case, the Board determined that an additional VA examination was required, to include retrospective opinions as to symptom manifestations for any identifiable period during this appeal. Accordingly, the Board ordered a VA examination with a retrospective medical opinion as to the Veteran's symptoms since January 2006. The remand directives state that if such retrospective opinions are not possible 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 of training). A May 2021 VA examination was obtained. However, the examiner did not provide a retrospective medical opinion in regard to the Veteran's symptoms since January 2006, to include active and passive range of motion, nor did the examiner state that an opinion was not possible without speculation. A remand by the Board confers on a veteran or other claimant, as a matter of law, the right to compliance with the remand orders. See Stegall v. West, 11 Vet. App. 268 (1998). As such, an additional remand is warranted to obtain a retrospective medical opinion regarding the Veteran's right knee symptoms from January 12, 2006 to February 1, 2019. 2. TDIU The claims file shows that the Veteran attended college in the spring of 2020 and that, as of February 2020, the Veteran was working full time in maintenance for the National Park Service. See September 2020 and February 2020 VRE correspondence. Accordingly, additional information is needed in order to determine when the Veteran stopped working. The Board notes that in August 2018, September 2019, and May 2021 letters, the RO requested that the Veteran complete a VA Form 21-8940 Veteran's Application for Increased Compensation Based on Unemployability. However, a VA Form 21-8940 was not completed as of the date of this decision. The AOJ must request that the Veteran complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability to obtain more information regarding the Veteran's current employment status, work history, and education. The Board will allow the Veteran another opportunity to submit a completed VA 21-8940 to pursue the claim of entitlement to a TDIU. The Veteran is reminded that the duty to assist is a two-way street. If he wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the relevant evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The matters are REMANDED for the following action: 1. Forward a copy of this remand to a qualified examiner for the purpose of obtaining an opinion (based on file review only) provide retrospective medical opinions as to symptom manifestations for any identifiable period since January 2006. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The following matters must be addressed: a.) Identify all right knee disability symptoms from January 12, 2006 to February 1, 2019. The examiner must attempt to elicit all relevant information from the Veteran and provide retrospective medical opinions. b.) On the VA examinations in May 2006, December 2010, and March 2016, range of motion (ROM) was not tested on passive ROM and/or in weight-bearing/nonweight-bearing conditions. Please state whether range of motion testing in such conditions was required to adequately assess the Veteran's pain on motion. Please explain why or why not. c.) Please state whether there is any structural abnormality of the involved joint (that is to say, whether normal excursion of the joint is impaired/not possible). If there is a structural abnormality of the joint, does that abnormality impact the joint such that passive range of motion in this case would be more limited than active? d.) Please explain whether testing in weight-bearing conditions is more demonstrative of the degree of pathology in the Veteran's case, or whether testing in nonweight-bearing conditions would better demonstrate the severity of the disability. e.) If, and only if, the examiner determines that all required testing was not conducted, request that an additional physical examination be scheduled in order to conduct ROM testing in active motion, passive motion, and in weight-bearing, and non-weight-bearing conditions. In this event, the examiner should also attempt to provide retrospective assessments of what the likely ranges of motion would have measured on each prior examination, had ROM been tested in (1) passive motion, (2) in weight-bearing, and (3) in non-weight-bearing. If this assessment is not feasible, please clearly explain why that is so. (Continued on the next page) A rationale for all opinions expressed should be set forth. If the examiner cannot provide an opinion without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence, the limits of medical knowledge, etc.). 2. Request that the Veteran complete a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Joshua Castillo Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Samuelson, 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.