Citation Nr: A21020175 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 191029-44936 DATE: December 17, 2021 ORDER For the entirety of the period on appeal, a rating of 10 percent, but not higher, for scar, left anterior knee, is granted. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) based on service-connected disabilities is remanded. FINDING OF FACT For the entirety of the period on appeal, the Veteran had one knee scar that was painful but not unstable. CONCLUSION OF LAW For the entirety of the period on appeal, the criteria for a rating of 10 percent, but not higher, for scar, left anterior knee have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2009 to April 2012. This matter comes before the Board of Veterans' Appeals (Board) on appeal from the July 2019 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied a compensable rating of his service-connected left knee anterior scar. The rating decision on appeal was issued in July 2019 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the October 2019 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Hearing docket. A Board video-conference hearing was held in September 2021 before the undersigned Veterans Law Judge; a transcript of the hearing has been associated with the record. The Board may only consider the evidence of record at the time of the agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Initial Matter The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating - Pertinent Laws and Analysis Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran's service-connected scar is rated as noncompensable under DC 7805 from April 15, 2012, and noncompensable under DC 7802 from April 26, 2019 under DC 7802. Effective August 13, 2018, changes were made to the rating criteria for skin disabilities (38 C.F.R. § 4.118). See 83 Fed. Reg. 32,592 (July 13, 2018). The inception of the claim before the Board was after the change in regulation and thus only the revised criteria will be applied. DC 7800 concerns scars of the head, face, or neck and thus is not relevant to this claim. Under DC 7801, a 10 percent rating is assigned for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.); a 20 percent rating is awarded if the area or areas are at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.); a 30 percent rating is awarded if the area or areas are at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.); and a 40 percent rating is awarded if the area or areas are at least 144 square inches (929 sq. cm.). Under DC 7802, the maximum rating of 10 percent is warranted for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage for area of areas of 144 square inches (929 sq. cm.) or greater. Under DC 7804, a scar will be assigned a 10 percent rating if there are one or two scars that are painful or unstable; a 20 percent rating if there are three or four scars that are painful or unstable; and a 30 percent rating if there are five or more scars that are painful or unstable. 38 C.F.R. § 4.118. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states that, if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804 when applicable. DC 7805 instructs to evaluate other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804 not considered in a rating provided under an appropriate diagnostic code. In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Where the veteran is appealing the rating for an already established service-connected condition, his or her present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him or her through their senses. See Layno v. Brown, 6 Vet. App. 465 (1994). Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. The Veteran in this case contends that a higher rating is warranted for the scar on his left anterior knee. Turning to the evidence, in a May 2019 private treatment record, the Veteran's private primary care physician, Dr. J.S., a Doctor of Osteopathic Medicine, referred the Veteran to dermatology due to symptomatic scar formation with no sign of keloid formation. Dr. J.S. noted the Veteran should use medication for relief and limit excessive stretching of the skin. A May 2019 VA treatment record noted the Veteran's left knee scar was causing pain. Dr. J.S. provided a disability benefits questionnaire (DBQ) regarding the severity of his left knee scar in June 2019. Dr. J.S. indicated the Veteran's scar was painful, described as burning pain of the scar over the left patella, but was not unstable. The scar itself was deep non-linear, measuring approximately 3 centimeters by 3 centimeters, to measure 9 square centimeters. Dr. J.S. stated the scar of the left knee limited flexion and extension but pressure was able to be put on the knee. Dr. J.S. also found the scar impacted his ability to work, insofar as the pain from the scar limited the ability to climb, kneel, and bend and his ambulation was antalgic. A VA scars/disfigurement DBQ was conducted in July 2019. After review of evidence in the claims file, the examiner noted the Veteran's report regarding the scar, including that it is aggravated by stretching and squats, alleviated by rest and massage, was treated by stretching, massage, and a topical cream, and described the pain as 7 out of 10 burning pain over the scar lasting approximately 40 minutes, onset when he extends his leg out or if he stands for a prolonged period of time. The examiner indicated the scar was painful, measuring 5 centimeters by 4 centimeters, covering approximately 20 square centimeters, and was without underlying tissue damage. The examiner also noted the scar did not result in limitation of function. Under the remarks section, the examiner added that while the Veteran claimed that the scar was painful when he stretched his calf muscle when his left leg is extended and using a band under his foot, that position would be unlikely to cause the nonadherent scar to stretch or cause pressure on underlying structures and thus it was less likely as not to be scar pain. In other words, it was likely to be pain caused by the stretching of his muscles. The examiner also addressed the Veteran's report of pain slightly distal to the inferior portion of the claimed scar when standing for a prolonged period. The examiner found the pain experienced by the Veteran was as likely as not patella knee pain associated with his service-connected knee condition as, during palpation of the claimed scar, there was no objective evidence of pain and the scar was nonadherent. The Veteran did report tenderness when the examiner directly palpated the patella distal to the scar. Therefore, it is less likely as not that the pain experienced by the Veteran is associated with the scar and more likely patella knee pain associated with his service-connected knee condition. Further, the examiner found that the Veteran's STR documented that he had no complaints regarding his left knee scar on his separation examination. It was less likely as not that the veteran's initially asymptomatic left knee scar would cause his current described left knee pain approximately nine to ten years later. The examiner noted the scar claimed by the veteran was irregular shaped, located suprapatellar and did not have the appearance of a typical surgical scar and the examiner would not typically associate a scar shaped like the Veteran's suprapatellar scar with a patellar dislocation surgical repair. The examiner was unable to locate an operative report in the veteran's STR to explain the unusual appearance of the scar, however, the August 2011 examination report clarified that the Veteran did not undergo surgical correction of the dislocated patella, and that the skin laceration was allowed to heal by secondary intent. Lastly, the Veteran ambulated smoothly and with normal speed and did not have objective findings of difficulty with movement of the left knee, or with sitting with his knee extended or bent, or with standing after sitting, or sitting after walking. In a September 2021 hearing, the Veteran testified that he gets sharp pain from his scar, it turns red, and he could not put pants on as they rub against the scar and causes pain. The scar also would get "tingly" at times and would stop him from performing his job or performing him picking up kids or playing with them. The Veteran also stated that the scar healed and opened back up because he could not keep anything on it for too long. On review of the evidence, both lay and medical, and after resolution of all reasonable doubt in favor of the Veteran, the Board finds that his left knee scar more nearly approximates the criteria for a disability rating of 10 percent under DC 7804 for the entirety of the period on appeal. Specifically, the evidence reveals the Veteran's single knee scar was painful during the pendency of the claim but was not unstable, as indicated by Dr. J.S., the July 2019 VA examiner, and the Veteran himself. See June 2019 Private DBQ and July 2019 VA Scars/Disfigurement DBQ. The Board notes that the July 2019 VA examiner provided a lengthy opinion stating that the pain was around the knee and not related to the scar. Nevertheless, the examiner, within the DBQ, indicated the scar itself was painful. The Board also recognizes the Veterans testimony that his scar opened back up. See September 2021 Hearing Transcript, page 5. While the Board notes that the Veteran is competent to report an observable symptom such as pain, neither Dr. J.S., nor the July 2019 VA examiner found the scar to be unstable. In this instance, the Board finds the opinions of medical professionals more probative than the lay observations of the Veteran. As such, under DC 7804, a 10 percent rating, but not higher is warranted. A rating in excess of 10 percent for the period on appeal is not warranted. A separate rating under DC 7801 is not warranted, as, while there is evidence within the June 2019 private DBQ of deep non-linear scars over the left lower extremity, the approximate total area was 9 square centimeters, less than the 39 square centimeters required for a 10 percent rating. DC 7802 is not for application as the Veteran's scars did not encompass an area or areas of 144 square inches (929 sq. cm.) or greater. A higher rating is not approximated under DC 7804 as the Veteran specifically indicated he had one painful scar, and not more that were painful or unstable. In regard to DC 7805, Dr. J.S. indicated that his scars have resulted in limited flexion and extension and impacted his ability to work, as the pain from the scar limited the ability to climb, kneel, and bend. However, an additional rating under DC 7805 is not warranted as the Veteran is being compensated for limitation of motion under DC 5260 for left patellar tendonitis status post dislocation and surgical reduction. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In conclusion, the Board finds that for the period on appeal, a 10 percent rating, but not higher, for the Veteran's left knee scar is warranted. The Board notes that neither the Veteran nor his attorney 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 The Board also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. As an initial matter, the Dr. J.S. opined in June 2019 that the Veteran's scar impacted his ability to work. Moreover, in a May 2020 VA treatment record, the Veteran stated that while he was employed as a barber, the shop was closed due to the pandemic. The Board also notes that the Veteran has previously stated his employment as a barber was part-time, which raises the question of whether it was substantially gainful employment. See January 2017 VA Treatment Record. On remand, a VA Form 21-8940 should be requested from the Veteran. The matters are REMANDED for the following action: 1. Contact the Veteran and request that he submit a VA Form 21-8940, Application for TDIU. The Veteran should include all employment and education obtained. 2. After any additional development necessary has been completed, readjudicate the inferred TDIU claim now on appeal. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Moldawer, 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.