Citation Nr: 21011498 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-15 472A DATE: March 2, 2021 ORDER Entitlement to a disability rating in excess of 10 percent disability rating for right lower extremity surgical scars, status post total right knee replacement prior to March 25, 2019 is denied. Entitlement to a disability rating in excess of 20 percent for right lower extremity surgical scars, status post total knee replacement from March 25, 2019 is denied. FINDINGS OF FACT 1. Prior to March 25, 2019, the preponderance of the evidence indicates that the Veteran does not have three or more painful or unstable scars on her right lower extremity. 2. From March 25, 2019, the Veteran had three painful scars on her right lower extremity. CONCLUSIONS OF LAW 1.Prior to March 25, 2019, the criteria for a disability rating in excess of 10 percent for right lower extremity surgical scars, status post total knee replacement are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. 2. From March 25, 2019, the criteria for a disability rating in excess of 20 percent for right lower extremity surgical scars, status post total knee replacement are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to March 1980. This matter comes before the Board of Veterans’ Affairs (Board) on appeal from a November 2012 rating decision issued by the Department of Veteran Affairs (VA) Agency of Original Jurisdiction (AOJ). The Board notes that this matter was remanded in August 2020 for issuance of a supplemental statement of the case (SSOC) relating to the Veteran’s right lower extremity scar claim. The Board finds that substantial compliance with this directive has been completed. 1. Right Knee Scars The Veteran contends that the scars on his right knee are more severe than currently rated. The Board notes that this matter stems from a May 2012 increased rating claim related to her service-connected right total knee replacement (TKA). As such the appellate period under consideration for this matter is May 29, 2011 (one year prior to her claim). Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s right lower extremity surgical scars, status post right knee TKA are rated 10 percent prior to March 25, 2019 and 20 percent thereafter under Diagnostic Code 7804 for unstable or painful scars. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. Under Diagnostic Code 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 1. If one or more scars are both unstable and painful, the Board must add 10 percent to the evaluation that is based on the total number of unstable or painful scars. See 38 C.F.R. § 4.118, Diagnostic Code 7804, Note 2. In August 2012, the Veteran underwent a VA scar and disfigurement examination. The examiner diagnosed the Veteran with a scar, status post knee injury. The examiner found that none of the Veteran’s scars were painful or unstable. The examiner documented three scars on the lower right extremity. A linear scar that was 17 centimeters and two superficial non-linear scars which were 16.5 by 3 centimeters and 3 by 2 centimeters respectively. The examiner found that the Veteran’s scars did not result in limitation in function. The examiner found the Veteran’s scars did not affect her ability to work. In February 2013, the Veteran stated that the August 2012 examination indicated her scars were not painful. The Veteran stated it should have stated her scars were painful because she had pain in her scars. The Veteran noted that pain is subjective, and the VA examiner was wrong by indicating the scars were not painful. In March 2014, the Veteran underwent another VA scars and disfigurement examination. The examiner diagnosed the Veteran with a “well-healed surgical wound.” The examiner did not find any of the Veteran’s scars were painful or unstable. The examiner noted the Veteran had two linear scars with a length of 16 centimeters and 21 centimeters respectively on the lower right extremity. The examiner did not find the any of the Veteran’s scars resulted in limitation of motion. The examiner did not find any other pertinent physical findings, complications, conditions, signs, and/or symptoms due to the Veteran’s scars. The examiner did not find the Veteran’s scars impacted the Veteran’s ability to work. In December 2015, the Veteran underwent a VA knee examination. The examiner did not find the Veteran had any scars related to the Veteran’s knee disability. In October 2017, the Veteran underwent another VA knee examination. The examiner found that the Veteran had a scar related to her right knee disability. The examiner found the Veteran’s scar was 14 centimeters by 1 centimeter. The examiner stated there was no objective evidence that any scar was painful, unstable or have a total area equal to or greater than 39 square centimeters. In April 2018, the Veteran underwent another VA examination for her right knee disability. The examiner noted that there were two scars over the right knee that were 18 and 24 centimeters by .3 centimeters. The examiner noted the scars were both well-healed, uncomplicated, and non-tender. The examiner stated there was no objective evidence that any scar was painful, unstable or have a total area equal to or greater than 39 square centimeters. In March 2019, the Veteran underwent another scars and disfigurement examination. The examiner diagnosed the Veteran with status-post scars from previous right knee scope and TKA. The examiner noted that the Veteran reported three painful scars. The Veteran stated that all her scars were painful with sharp pain in the scars were touched. Upon examination, the examiner documented three scars on the Veteran’s knee. The first scar was 24 centimeters by 3 centimeters; the second scar is 13.5 centimeters by 1 centimeter; and the third scar is 1 centimeter by 0.3 centimeters. The examiner noted that all three scars were tender to palpitation. The examiner did not find any of the Veteran’s scars were unstable. The examiner did not find the any of the Veteran’s scars resulted in limitation of motion. The examiner did not find any other pertinent physical findings, complications, conditions, signs, and/or symptoms due to the Veteran’s scars. The examiner did not find the Veteran’s scars impacted the Veteran’s ability to work. The examiner noted the Veteran had a reddish-brown discoloration on both lower legs and that some of the arthroscopic scars could no longer be seen. The Board finds that prior to March 25, 2019 a disability rating in excess of 10 percent is not warranted for her lower right extremity scars. Repeat VA examinations in March 2014, December 2015, October 2017, and April 2018 including some of which were specific scar examinations found the Veteran had either two or no scars and notably, and none of these examinations indicated that the scars were painful or unstable. While the August 2012 examiner found two linear scars and one non-linear scar, the examiner also found none of the scars were painful or unstable or resulted in any functional impairment. Thus, the Board does not find that the Veteran had three scars that were painful or unstable prior to March 25, 2019. The Veteran is competent to report observable symptoms, to include painful scars throughout the appellate period; therefore her February 2013 report regarding the pain she felt due to her scars is competent. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, the Board finds that this statement is not credible. Since the Veteran’s February 2013 statement, the Veteran underwent four examinations in which the Veteran did not report that any of her documented scars were painful. The Board considered the Veteran’s statement that pain was subjective, and that August 2012 examiner failed to take in the subjective nature of pain. However, the Veteran did not report the pain in subsequent March 2014, December 2015, October 2017, and April 2018 examinations in which scars were addressed. Nor did the Veteran provide any further statements regarding the pain of her scars in the years following the February 2013 statement. As such, the Board finds the Veteran’s statements that she had three painful scars to be of lesser probative weight in this case. To the extent that that August 2012 examiner identified three scars, the Board finds that the most probative evidence of record does not show three right knee scars that are painful or unstable or that result in any right knee functional impairment prior to March 25, 2019. The Board finds that a disability rating in excess of 10 percent is not warranted for the Veteran’s lower right extremity scars prior to March 25, 2019. For the period from March 25, 2019, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent under Diagnostic Code 7804 because the Veteran’s right knee does not have five or more scars that are unstable or painful. The Board notes that VA treatment records indicates that the Veteran had multiple scars. However, no VA examination indicated that the Veteran had more than three scars nor more than three scars that were painful. Further, the Veteran has not stated that she had more than three scars that were painful. As a final note, the Board notes that, as indicated above, the Rating Schedule instructs that if one or more scars are both unstable and painful, the Board must add 10 percent to the evaluation that is based on the total number of unstable or painful scars; however, there is no subjective or objective evidence that any of the Veteran’s scars meet this criterion. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s right lower extremity scars are not of the head, face, or neck, are not deep and nonlinear, and are not associated with underlying soft tissue damage. Although the scars are superficial and not associated with underlying soft tissue damage, they do not cover an area or areas of 144 square inches or greater. Therefore, Diagnostic Codes 7800 through 7802, both prior to and from August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. (Continued on the next page)   In conclusion, the Board finds that a rating in excess of 10 percent is not warranted prior to March 25, 2019 for the Veteran’s right lower extremity surgical scars status-post right TKA. The Board further finds that the preponderance of the evidence is against the Veteran’s claim for a disability rating in excess of 20 percent for her lower right extremity scars from that date. In denying the Veteran’s increased rating claim, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Batten 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.