Citation Nr: 21011945 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 17-28 635 DATE: March 3, 2021 ORDER Entitlement to a 10 percent rating for a service-connected scar of the right knee is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to service connection for a neck/cervical spine disability is remanded. Entitlement to service connection for a left knee disability including as secondary to service-connected ruptured patellar or quadriceps tendon proximal to the right patella is remanded. Entitlement to a disability rating greater than 10 percent for service-connected lumbar strain is remanded. Entitlement to a disability rating greater than 10 percent for service-connected ruptured patellar or quadriceps tendon proximal to the right patella is remanded. Entitlement to a compensable disability rating for service-connected lateral epicondylitis of the left elbow is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT The Veteran has one right knee linear scar that is painful but not unstable. CONCLUSION OF LAW The criteria for a 10 percent disability rating for a right knee scar are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1978 to May 1986, February 1997 to October 1997, and March 1999 to September 2014. This case comes to the Board of Veterans’ Appeals (Board) on appeal from January 2016 decisions of an Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veterans Law Judge at a September 2020 hearing; a transcript of the hearing is of record. A request for a TDIU, whether expressly raised by a claimant or reasonably raised by the record, is an attempt to obtain an appropriate rating for disability or disabilities, and is part of the claims for increased ratings for the service-connected disabilities on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the current evidence reasonably raises a claim for TDIU pursuant to the holding in Rice, and the issue is in appellate status. 1. Increased Rating for a Right Knee Scar The Veteran contends that he is entitled to a higher rating for the service-connected right knee scar because the scar is painful. The Veteran's service-connected disabilities include ruptured patellar or quadriceps tendon proximal to patella, right knee, and his right knee scar is a residual of surgical repair of a torn right quadriceps tendon. Throughout the rating period on appeal, the AOJ has rated the right knee scar as noncompensable under Diagnostic Code 7805, which pertains to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804. The Board notes that VA amended the criteria for rating skin disabilities effective from August 13, 2018. However, Diagnostic Codes 7804 and 7805 were 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. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id. Diagnostic Code 7805 instructs that any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 should be rated under an appropriate Diagnostic Code. The Veteran is competent to report observable symptoms, to include pain from his right knee scar, and his reports are credible. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). After a review of the evidence of record, including the Veteran's competent lay testimony regarding a painful scar, the Board finds that a higher 10 percent rating is warranted for the service-connected right knee scar under Diagnostic Code 7805 throughout the rating period on appeal. However, the preponderance of the evidence is against the assignment of a rating in excess of 10 percent under Diagnostic Code 7804 because the Veteran’s scar is not manifest by three or four scars that are unstable or painful. On VA examination in January 2015, there was a scar in front of the right patella that was 12.5 cm by 0.1 cm. The scar was not painful or unstable, and did not have a total area equal to or greater than 39 square cm (6 square inches). On VA examinations in December 2015 and April 2017, there was a right anterior linear knee scar that was 16 cm by 0.4 cm. The examiner stated that the scar was not painful or unstable, and did not have a total area equal to or greater than 39 square cm (6 square inches). At the September 2020 Board hearing, the Veteran testified that his right knee scar was painful, but also stated that the scar was not tender. A Scar Disability Benefits Questionnaire (DBQ) completed on September 30, 2020 by the Veteran's private physician, Dr. Y., reflects that the Veteran had a right knee scar that was painful, but not unstable. Dr. Y. stated that the scar was 6 centimeters long (no width was provided), superficial, and non-linear. The Board has also considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s right knee scar is not of the head, face, or neck, is not deep and nonlinear, and is not associated with underlying soft tissue damage. Although it is superficial and not associated with underlying soft tissue damage, it does 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. An even higher rating is not warranted. The Veteran does not assert, and medical records do not show, that his right knee scar is manifest by any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04. In conclusion, with application of the benefit-of-the-doubt rule, the Board finds that a higher 10 percent rating is warranted for the right knee scar throughout the rating period on appeal. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Service connection for a neck disability is remanded. The Veteran contends that he had ongoing neck pain since 2004, during service. He asserted that his service-connected right knee disability caused an altered gait which resulted in a neck disability. At the Board hearing, the Veteran's representative contended that the 2017 VA examination was inadequate because the examiner did not provide an opinion regarding direct service connection. The Board cannot make a fully-informed decision on the issue of service connection for a neck disability because no VA examiner has opined whether any current neck/cervical spine disability began in service or is secondary to the service-connected right knee disability. 2. Service connection for a left knee disability is remanded. The Veteran contends that he has a current left knee disability that began during service in 2003, as a result of his right knee injury. He testified that he had continuous left knee pain since then. The Board cannot make a fully-informed decision on the issue of service connection for a left knee disability because no VA examiner has opined whether any current left knee disability began in service or is secondary to the service-connected right knee disability. The Board notes that although the December 2015 VA examiner opined that the Veteran does not have a current left knee diagnosis, the examination showed limitation of left knee motion, and private medical records reflect complaints of left knee pain. Limitation of motion was also noted on VA examination in April 2017. Following this examination, the U.S. Court of Appeals for the Federal Circuit (Federal Circuit Court) held that pain alone can serve as a disability for VA compensation purposes if the pain results in functional impairment that affects earning capacity. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. Apr. 3, 2018). In light of Saunders, the Board finds that a remand for an addendum opinion is warranted for the examiner to assess whether the Veteran’s left knee pain results in functional impairment that affects his earning capacity. 3. Higher rating for lumbar strain is remanded. 4. Higher rating for ruptured patellar or quadriceps tendon proximal to the right patella is remanded. 5. Higher rating for lateral epicondylitis of the left elbow is remanded. At the September 2020 Board hearing, the Veteran asserted that the service-connected lumbar strain, right knee disability, and left elbow disabilities have increased in severity since he was last examined by VA. The Veteran should be provided an opportunity to report for VA examinations to ascertain the current severity and manifestations of these disabilities. While the record contains contemporaneous private examinations by Dr. Y. regarding the Veteran’s lumbar spine and right knee disabilities, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016) and Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). Dr. Y. did not attempt to elicit relevant information regarding the description of the Veteran’s flare-ups and any additional functional loss suffered during flare-ups, and the right knee examination does not contain passive range of motion measurements. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). The Veteran’s right knee disability is currently rated under Diagnostic Code 5260, which was not revised, but other Diagnostic Codes must be considered, if applicable. The September 2020 private knee DBQ indicated that the Veteran has recurrent subluxation, which is rated under Diagnostic Code 5257. Diagnostic Code 5257 now evaluates patellar instability as well as recurrent subluxation or instability. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257). Because the record does not contain sufficient evidence to rate the Veteran’s right knee disability under the new rating criteria, a new examination is warranted. On remand, updated relevant VA and private medical records should be obtained. 6. Entitlement to a TDIU is remanded. The Board finds that the issue of entitlement to a TDIU has been raised by the record. See Board hearing transcript, page 2, 29-32. The Veteran must be provided with notice of the information necessary to substantiate a TDIU claim and must also be asked to complete a TDIU claim form so he can provide information concerning his prior employment, education, training, and other relevant factors. This issue is inextricably intertwined with the above-remanded issues. The matters are REMANDED for the following action: 1. With any necessary release(s), obtain updated relevant VA and private medical records of treatment or evaluation of disabilities of the cervical spine, lumbar spine, knees, and left elbow. 2. The Veteran should be asked to complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. 3. Schedule the Veteran for a VA examination for his claimed neck/cervical spine and left knee disability. The examiner must review the claims file. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. The examiner is asked to provide a response to the following: Is any current disability of the neck/cervical spine and/or left knee at least as likely as not related to service, including reported symptoms of pain? Provide a rationale to support the opinion(s). In providing the requested opinion, consider the Veteran’s description of his in-service injury and symptoms as well as his post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran’s reported injury and symptoms in service and thereafter represented the onset of his current disability, this should be noted. Stated another way, do the Veteran’s reports about his symptoms align with how the currently diagnosed disability is known to develop or are the Veteran’s reports generally inconsistent with medical knowledge or implausible? Is the neck/cervical spine disability, and/or left knee disability, at least as likely as not proximately due to the service-connected right knee disability or lumbar spine disability? Is neck/cervical spine disability, and/or left knee disability, at least as likely as not aggravated, i.e., worsened beyond its natural progression, by the service-connected right knee disability or lumbar spine disability? If arthritis is diagnosed, is it at least as likely as not that it (1) began during active service, (2) manifested within one year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service? 4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected lumbar strain, ruptured patellar or quadriceps tendon proximal to the right patella, and lateral epicondylitis of the left elbow. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating the Veteran’s disabilities under the rating criteria. In so doing, the examiner must test the Veteran’s active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement 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 or training). In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran’s statements. If it is not possible to provide a specific measurement 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 or training). 5. Adjudicate the TDIU claim and readjudicate the other claims on appeal. With regard to the claims for higher ratings, the revised musculoskeletal rating criteria effective February 7, 2021 must be considered. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453 (Nov. 30, 2020). S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. L. Wasser, 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.