Citation Nr: 21013065 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 09-39 894 DATE: March 8, 2021 ORDER Entitlement to a compensable disability rating for left knee scar, anterior patella, is denied. REMANDED Entitlement to a rating in excess of 10 percent for chondromalacia of the left knee prior to October 12, 2015 and classified as left knee arthritis with chondromalacia and limited motion from October 12, 2015, is remanded. Entitlement to a rating in excess of 20 percent for meniscal tear, left knee, from February 27, 2016 to November 21, 2018, is remanded. Entitlement to a rating in excess of 20 percent for left knee arthritis with chondromalacia and instability from February 27, 2016, is remanded. Entitlement to a rating in excess of 10 percent for chondromalacia of the right knee prior to October 12, 2015 and classified as right knee arthritis with chondromalacia and limited motion from October 12, 2015, is remanded. Entitlement to a rating in excess of 20 percent for meniscal tear, right knee, from February 27, 2016 to November 21, 2018, is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) as a result of service-connected disabilities is remanded. FINDING OF FACT A scar of the left knee is not painful or unstable and is less than 39 square centimeters in area and does not result in functional impairment or limitation. CONCLUSION OF LAW The criteria for entitlement to a compensable disability rating for left knee scar, anterior patella have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Code 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1979 to June 1981. These matters came before the Board of Veterans’ Appeals (Board) on appeal from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned in a hearing at the RO in October 2014; a transcript is of record. In an April 2016 rating decision, a separate rating was granted for left knee chondromalacia with arthritis and instability, rated 20 percent disabling effective February 27, 2016, and a noncompensable rating was assigned to left knee scar, anterior patella associated with left knee arthritis with chondromalacia and loss of motion, effective October 12, 2015. In an April 2019 rating decision, separate 20 percent ratings were assigned for meniscal tear, right and left knees, effective February 27, 2016 to November 21, 2018. Increased rating The Veteran seeks a compensable rating for his scar on his left knee. A noncompensable disability rating per 38 C.F.R. § 4.118, Diagnostic Code 7805 is currently assigned. This diagnostic code requires that the scar be evaluated under the rating criteria for diagnostic codes 7800, 7801, 7802, and/or 7804, as appropriate. Diagnostic Code 7800 is not for application, as the Veteran’s service-connected surgical scar on the left knee does not involve the head, face, or neck. During the pendency of this appeal, the rating criteria for evaluating scar conditions were revised, effective August 13, 2018. See 83 Fed. Reg. 32592 (July 13, 2018); 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7805. The Veteran’s symptoms will be evaluated under both the old and new rating criteria, and the version that is more beneficial to the Veteran will be applied. See 83 Fed. Reg. 32592, 32593 (July 13, 2018) (“[F]or this final rule, VA’s intent is that the 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.”). Under the rating criteria in effect prior to the August 13, 2018 changes, a minimum compensable rating (10 percent) for scars not of the head, face, or neck was warranted if (1) the scar was deep and nonlinear and of at least 39 square centimeters in area; (2) the scar was superficial and nonlinear and of at least 929 square centimeters; or (3) the scar was unstable or painful. Under the new rating criteria, effective August 13, 2018, a minimum compensable rating (10 percent) for scars not of the head, face, or neck is warranted if (1) the scar is associated with underlying soft tissue damage and of at least 39 square centimeters in area; (2) the scar is not associated with underlying soft tissue damage and of at least 929 square centimeters in area; or (3) the scar is unstable or painful. 38 C.F.R. § 4.118, Diagnostic Codes 7801, 7802, 7804. 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). There are no further diagnostic criteria that could provide a compensable rating. An October 2015 C&P examination report reflects a 6 centimeter by .4 centimeter scar on the left knee, anterior patella. The examiner checked the ‘No’ box with regard to whether the scar is painful or unstable or has a total area equal to or greater than 39 square centimeters. The November 2018 C&P examination report reflects a 6 centimeter by .5 centimeter scar on the left knee, and the examiner checked the ‘No’ box with regard to whether the scar is painful or unstable or has a total area equal to or greater than 39 square centimeters. The December 2019 C&P examination report reflects that the Veteran has a linear left anterior knee scar, which is a residual from a childhood injury. The Veteran could not recall how he got the scar and recalled seeing the scar as a child. The examiner commented that the scar was well healed approximated and nontender. The examiner found that the scar was not painful nor unstable. The scar measured 7 centimeters by .5 centimeters. The examiner found that the scar does not result in limitation of function or motion. Under both the prior and current rating criteria, the Veteran would be ineligible for a compensable disability rating for his service-connected scar on the left knee under all applicable diagnostic codes. No functional impairment of physical limitation due to the left knee scar has been reported by the Veteran nor indicated by a C&P examiner, and the Veteran has never characterized his left knee scar as painful or unstable. The criteria for a compensable rating for a left knee scar have not been met, under either the prior or current rating criteria. The Veteran’s claim for a compensable rating is denied. REASONS FOR REMAND Bilateral knees The Veteran is in receipt of a 20 percent disability rating for left knee instability, per 38 C.F.R. § 4.71a, Diagnostic Code 5257, effective February 27, 2016; separate 20 percent disability ratings for meniscal tear, left and right knees, per Diagnostic Code 5258, effective February 27, 2016 to November 21, 2018; and, separate 10 percent ratings for left and right knees chondromalacia/limitation of motion per Diagnostic Codes 5014 (arthritis) and 5260. The ratings assigned to left knee instability and meniscal tear of the knees were assigned in contemplation of the February 27, 2016 C&P examination. With regard to the left knee, there were objective findings of anterior instability (Lachman test) +1 and lateral instability +2. The examiner also checked the box indicating a meniscus (semilunar cartilage) condition with frequent episodes of joint pain and joint effusion on the right side, and meniscal tear and frequent episodes of joint pain and joint effusion on the left side. In November 2018, the Veteran underwent a C&P examination wherein the examiner diagnosed bilateral knee arthritis with chondromalacia, limitation of motion. On joint stability testing of the left knee, anterior instability, posterior instability, medial instability, and lateral instability were normal per the examiner. The examiner checked the ‘No’ box with regard to whether he has a meniscus condition. It appears that this is the basis for the Agency of Original Jurisdiction (AOJ) assigning the meniscal tear ratings from February 27, 2016 to November 21, 2018; the ratings end the day before the November 22, 2018 C&P examination. In the August 2019 Board Remand, it was instructed that the examiner should provide an explanation for the inconsistent objective findings to ensure that the disability ratings assigned adequately compensate the Veteran for his disabilities of the right and left knee. In December 2019, the Veteran underwent a C&P examination wherein the examiner diagnosed knee meniscal tear and degenerative arthritis, and the examiner found that the meniscus tear was a progression of a previous diagnosis. But the examiner checked the ‘No’ box with regard to whether he has a meniscus condition, and there are no objective findings for meniscal conditions. The examiner also found no history of recurrent subluxation or lateral instability, and joint stability testing was normal. Such examination does not address the inconsistent objective findings. The Veteran should be afforded an examination with an orthopedic physician to assess the severity of his bilateral knee disabilities and to ensure that the disability ratings assigned adequately compensate the Veteran for his disabilities of the right and left knee. TDIU Service connection is in effect for left knee, instability (20% from 02/27/2016); meniscal tear, left knee (20% from 02/27/2016 – 11/21/2018); meniscal tear, right knee (20% from 02/27/2016 – 11/21/2018); chondromalacia/limitation of motion right knee (10% from 06/02/1981); chondromalacia/limitation of motion left knee (10% 06/02/1981); and, left knee scar, anterior patella (0% 10/12/2015). His combined rating is 20 percent from October 12, 2015; 70 percent from February 27, 2016; and 40 percent from November 21, 2018. Thus, at present the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a) have not been met for the period prior to February 27, 2016, and from November 21, 2018. Entitlement to a TDIU is in inextricably intertwined with the increased ratings issues above, thus this matter must be remanded. Harris v. Derwinski, 1 Vet. App. 180 (1991). The matters are REMANDED for the following actions: 1. Associate updated VA treatment records for the period from November 8, 2019. 2. Schedule the Veteran for an orthopedic examination with an orthopedist to assess the severity of left and right knee disabilities, and to account for the discrepancies in the February 2016, November 2018, and December 2019 C&P examinations. The virtual folder should be made available to the examiner for review in conjunction with the examination. Any medically indicated special tests should be accomplished, and all special test and clinical findings should be clearly reported. The examination of the left and right knees should include range of motion studies. Regarding range of motion testing, the examiner should report the point (in degrees) at which pain is elicited, as well as whether there is any other functional loss due to pain, weakened movement, excess fatigability, incoordination, or flare-ups. These determinations must be expressed in terms of the additional limitation of motion in approximate degrees due to each functional factor that is present. The examiner should report on whether there is functional loss due to limited strength, speed, coordination or endurance. The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight 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. The examiner should perform stability testing, report whether there is instability or subluxation, and express an opinion as to the severity of such instability or subluxation. The examiner should comment on whether the Veteran has a prescription from a medical provider for a brace, cane, or walker due to recurrent instability. The examiner should attempt to explain any discrepancy between the left knee instability findings in the February 2016 C&P examination versus the lack of instability findings in the November 2018 and December 2019 C&P examinations. The examiner should provide an opinion as to whether the Veteran has sustained cartilage, semilunar, dislocated, with frequent episodes of “locking,” pain, and effusion into the joint and attempt to explain any discrepancy between the left and right knee meniscal tear findings in the February 2016 C&P examination versus the lack of meniscal tear findings in the November 2018 C&P examination and the meniscal tear diagnosis without any objective findings contained in the December 2019 C&P examination. The examiner should comment on the functional limitations caused by pain and any other associated symptoms, to include the frequency and severity of flare-ups of these symptoms, and the effect of pain on range of motion. The examiner should attempt to estimate additional loss of function during such flare-ups and such additional loss should be expressed in degrees of motion. The Court has held that an inability to observe a flare-up is an insufficient basis for not providing an estimate on additional functional limitation. The examiner is to provide a statement concerning how the left and right knee disabilities affect his functioning and activities. The examiner is asked to describe the types of limitations he would experience as a result of his left and right knee disabilities. The examiner should comment on the Veteran’s ability to function in an occupational environment for the period from January 1, 2009, and described any functional impairment caused by the service-connected bilateral knee disabilities for the period from January 1, 2009. (Continued on the next page)   The examiner must provide a comprehensive rationale for the opinions. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.