Citation Nr: A21020484 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 191218-58265 DATE: December 23, 2021 ORDER Entitlement to a compensable initial rating for scar, residual of right knee surgery is denied. REMANDED Entitlement to service connection for lupus is remanded. Entitlement to an initial rating in excess of 10 percent for Osgood-Schlatter syndrome, right knee (claimed as knee condition right) is remanded. FINDING OF FACT The Veteran's scar, residual of right knee surgery, is on the right knee, is not painful or unstable and measures 1 centimeters (cm.) by 0.5 cm. CONCLUSION OF LAW The criteria for a compensable initial rating for scar, residual of right knee surgery, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7802. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1995 to January 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA's decision on their claim to seek review. This decision has been written consistent with the new AMA framework. The Veteran selected the Hearing lane with a Board hearing when he opted into the AMA review system by submitting a VA Form 10182 (Decision Review Request: Board (Notice of Disagreement)) in December 2019. Accordingly, the Board will consider the evidence of record within 90 days after her Board hearing on July 2, 2021. In June 2021, the Veteran presented testimony at a virtual Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. 1. Entitlement to a compensable initial rating for scar, residual of right knee surgery. The Veteran's scar, residual of right knee surgery is rated noncompensable under 38 C.F.R. § 4.118, Diagnostic Code 7802. The Veteran's claim for a compensable initial rating for right knee surgical scar stems from the September 2019 rating decision granting service connection. Thus, the relevant period on appeal for a compensable initial rating for right knee scar is from May 3, 2019, the effective date of service connection. Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Evaluation of a service-connected disability requires a review of a veteran's medical history with regard to that disorder. However, the primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. While the entire recorded history of a disability is important for more accurate evaluations, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Diagnostic Code 7802 provides only a single rating of 10 percent for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear: Area or areas of 144 square inches (929 sq. cm.) or greater. Under Diagnostic Code 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful. Higher ratings, up to a maximum of 30 percent, are warranted for additional scars that are unstable or painful. If one or more scars are both unstable and painful, 10 percent is to be added to the rating that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, Diagnostic Code 7804, Note (2). Diagnostic Code 7805 provides that any disabling effects not considered in a rating provided under Diagnostic Codes 7800 through 7804 should be rated under an appropriate diagnostic code. At the August 2019 VA knee examination, the Veteran's right knee scar measured 1 centimeters by 0.5 centimeters and was not painful or unstable. The examiner did not indicate that the scar caused any other disabling effects. During the June 2021 Board hearing, the Veteran reported that he was not sure whether he had pain in his right knee from the scar. Accordingly, there is no indication that the Veteran's right knee scar has been either painful or unstable at any point during the appeal period. The scar had an area of less than 929 square centimeters. There also is no indication in the record that the scar had disabling effects not considered under 38 C.F.R. § 4.118, Diagnostic Codes 7802 and 7804. The Board has considered the application of other skin/scar diagnostic codes. However, the evidence of record does not show a scar causing disfigurement of the head, face, or neck (Diagnostic Code 7800); or scars other than the head, face, or neck that are deep or cause limited motion in an area exceeding 6 square inches or 39 sq. cm. (Diagnostic Code 7801). Of final note, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (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). Thus, the preponderance of the evidence is against the assignment of a compensable rating for the Veteran's right knee surgery scar. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for lupus is remanded. Private treatment records show a diagnosis of lupus, or undifferentiated connective tissue disease, and the record includes a May 2019 nexus statement from the Veteran's private physician, Dr. Hendricks. Dr. Hendricks provides an opinion the Veteran's diagnosis of undifferentiated connective tissue disease is at least as likely as not caused by or related to active military service because anthrax vaccination could have contributed to this disease. During the Board hearing, the Veteran testified that Dr. Hendricks was his rheumatologist who had treated him for lupus about 10 years before she retired in 2020. He stated that the onset of his lupus symptoms was around 2011 or 2012. He also indicated that he received anthrax vaccination while in the Reserve status in 1998 or 1999. As the private medical opinion is not supported by adequate rationale, it cannot be afforded much probative value. Despite the foregoing, a VA medical opinion addressing whether the Veteran's lupus is related to in-service exposure to anthrax vaccination has not yet been obtained. Therefore, a remand based on this pre-decisional duty to assist error is necessary to obtain an adequate medical opinion addressing whether the Veteran's lupus is related to service. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79 (2006); 38 C.F.R. § 20.802(a). 2. Entitlement to an initial rating in excess of 10 percent for Osgood-Schlatter syndrome, right knee (claimed as knee condition right) is remanded. During the June 2021 Board hearing, the Veteran, through his representative, stated that right knee disability picture is far worse than shown on the VA examination in August 2019 because he was having a good day and was able to perform the range of motion testing without much difficulty on the day of the examination; however, normally, there are times when he could not bend his knee due to pain and swelling. While the fact of the Veteran having a good day on VA examination does not necessarily equate to a pre-decisional duty to assist error on the part of the agency of original jurisdiction, the Board observes that the August 2019 examination report does not provide sufficient information regarding the Veteran's reported flare-ups. Although the Veteran reported experiencing severe flare-ups occurring about 5 to 6 times a year and lasting 2 to 3 days, the examiner did not further comment on the functional impairment, such as estimated additional loss in range of motion, during flare-ups. The examiner simply noted no response was provided. However, it is not clear why no further information was elicited from the Veteran regarding his right knee flare-ups. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares. In light of the Veteran's testimony that his right knee motion is normally more limited, and because the August 2019 VA examination did not provide sufficient details to ascertain the current severity of the Veteran's right knee disability, the Board finds that the examination was not adequate. Therefore, an additional examination is warranted. The matters are REMANDED for the following actions: 1. Arrange for an appropriate VA medical examiner to provide an opinion regarding the Veteran's diagnosed lupus. The entire claims file, to include a complete copy of this Remand, must be made available to the examiner, and the report of examination should include discussion of the Veteran's history and assertions. The examiner should render an opinion, consistent with sound medical judgment, as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that lupus is the result of disease or injury incurred in or aggravated by service. In providing this opinion, the examiner should address: - The Veteran's competent lay assertion that he received anthrax vaccination while serving the U.S. Marine Reserve in 1998 or 1999. - The Veteran's private rheumatologist's opinion that lupus likely developed as a result of the anthrax vaccination. - Whether any current medical literature supports a relationship between anthrax vaccine and the eventual onset of lupus. The examiner should set forth all examination findings, along with complete rationale for the conclusions reached. 2. The Veteran should be scheduled for an appropriate VA examination so as to determine the current nature and extent of all impairment due to the service-connected right knee disability. The claims file and a copy of this remand must be made available to and reviewed by the examiner in conjunction with the examination. All indicated tests should be performed and all findings should be reported in detail. The examiner should describe the nature and severity of all manifestations of the Veteran's right knee disability. The examiner must test and record the range of motion for BOTH knees in active motion, passive motion, weight-bearing, and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. In reporting the results of range of motion testing, the examiner should identify any objective evidence of pain and the degree at which pain begins. The extent of any weakened movement, excess fatigability, and incoordination on use should also be described by the examiner. The examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of the degree of additional range of motion loss. The examiner is reminded that he should specify the degree of additional functional loss/motion due to pain, to include during flare-ups, or state why it was not feasible to provide such information, as required for an adequate examination. There should be a complete discussion of the Veteran's flare-ups, to include their severity, frequency, and duration; precipitating and alleviating factors; and an opinion as to whether pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups. See Sharp v. Shulkin, 29 Vet. App. 32 (2017). (Continued on the next page) Additionally, the examiner should determine whether the Veteran has ankylosis of the knee; instability or subluxation of the knee; nonunion of the tibia and fibula with loose motion and requiring knee braces; dislocated semilunar cartilages with frequent episodes of locking, pain, and effusion; or severe painful motion or weakness in the knee. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. J. In, 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.