Citation Nr: 21013313 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-08 521 DATE: March 9, 2021 ORDER Entitlement to a rating higher than 0 percent for residual right knee post-operative scar is denied. Entitlement to a rating higher than 0 percent for right knee status-post arthroplasty scar is denied. Entitlement to an initial rating higher than 10 percent for a painful right knee scar is denied. REMANDED Entitlement to a rating higher than 20 percent prior to October 21, 2020, for a lumbar spine disability is remanded. Entitlement to a rating higher than 40 percent as of October 21, 2020, for a lumbar spine disability is remanded. Entitlement to service connection for right lower extremity radiculopathy, to include as secondary to service-connected lumbar spine disability, is remanded. Entitlement to a rating higher than 30 percent prior to March 15, 2010, for a right knee disability is remanded. Entitlement to a rating higher than 60 percent from March 15, 2010, to March 6, 2011; May 1, 2012, to August 9, 2015; and as of October 1, 2016, for a right knee disability is remanded. FINDINGS OF FACT 1. Throughout the period of appeal, the preponderance of the evidence shows that the Veteran has had two linear right knee scars that have not been shown to be tender or painful. 2. As of December 16, 2019, the preponderance of the evidence shows that the Veteran has had one linear right knee scar that has been shown to be painful. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 0 percent for right knee post-operative scar have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Codes 7801-7805. 2. The criteria for entitlement to a rating higher than 0 percent for right knee status-post arthroplasty scar have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Codes 7801-7805. 3. The criteria for entitlement to a rating higher than 10 percent for a painful right knee scar have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.118, Diagnostic Codes 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1976 to December 2000. In April 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A hearing transcript is of record. In February 2018, the Board remanded the case for further development. Increased Ratings Disability ratings are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 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 to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to a rating higher than 0 percent for residual right knee post-operative scar 2. Entitlement to a rating higher than 0 percent for right knee status-post arthroplasty scar 3. Entitlement to an initial rating higher than 10 percent for a painful right knee scar The Veteran claims that the service-connected scar disabilities, rated under Diagnostic Codes 7802, 7804, and 7805, are more severe than that contemplated by the 0 percent ratings. As of December 16, 2019, the Veteran was assigned a 10 percent for one of the three scars. As the Veteran’s right knee scars are linear, surgical, and not the result of a burn, the Board finds that the non-painful scars are more appropriately rated under 38 C.F.R. § 4.118, Diagnostic Code 7805, which pertains to scars that are rated based on any disabling effects not provided for by Diagnostic Codes 7800 through 7804. The applicable rating criteria for scars were amended effective August 13, 2018. However, the change did not affect the criteria concerning Diagnostic Code 7804. The timing of that change requires the Board to consider the claim under both the previous regulations and the newly amended criteria for the diagnostic code and apply the criteria which yields a higher rating. VAOPGCPREC 7-2003 (2003), 69 Fed. Reg. 25179 (2004); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Amended rating criteria, if favorable to the claim, can be applied only on and after the effective date of the regulatory change. The old regulation applies prior to the effective date of regulatory change. The old regulation and the new regulation are both considered for the period after the change was made. VAOPGCPREC 3-00 (2000), 65 Fed. Reg. 33422 (2000). An increase in benefits cannot be awarded earlier than the effective date of the change in law pursuant to which the award is made. 38 U.S.C. § 5110(g); 65 Fed. Reg. 33422 (2000). Diagnostic Code 7801 provides that burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear in an area or areas of at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters) will be assigned a 10 percent rating. Note (1) indicates that a deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118. Diagnostic Code 7802 pertains to burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear in an area or areas of 144 square inches (929 square centimeters) or greater warrant a maximum rating of 10 percent. Superficial scar is one not associated with underlying soft tissue damage. If multiple qualifying scars are present, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity. Diagnostic Code 7804 pertains to unstable and painful scars. A 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three to four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804. An unstable scar is defined as one where, for any reason, there is frequent loss of covering of skin over the scar. If one or more scars are both unstable and painful, the rating criteria provide that 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 scars not otherwise rated under Diagnostic Codes 7800-7804 are to be rated based on any disabling effects not provided for by those codes. In addition, the effects of scars otherwise rated under Diagnostic Codes 7800-7804 are to be considered. The Board finds that a review of all the relevant evidence of record, to include three VA examinations, shows that only one of the three scars on the right knee is painful, and does not warrant a rating in excess of 10 percent prior to December 16, 2019. Therefore, the Veteran’s claims for increased ratings must be denied. At the March 2009 VA scar examination, the Veteran denied any problems with scars. There were two scars on the right knee. One scar was located on the lateral aspect and measured 15 centimeters by 0.5 centimeters. The second scar was located on the medial aspect measured 21 centimeters by 1 centimeter. Both scars were slightly lighter than the Veteran’s normal skin color. The first scar was superficial and smooth, with no elevation, depression, or adherence to underlying tissues. The second scar was also smooth with no elevation, but it left a slight depression. At an October 2013 VA examination, the Veteran had two linear scars on the right knee. The scars were not unstable or painful. One scar measured 20 centimeters and the other measured 19 centimeters. There were no other pertinent physical findings or complications associated with the scars. At the December 2019 VA examination, the Veteran had three right knee scars. He reported intermittent burning and pins and needles sensation with one scar. The first scar was located on the anterior knee medial to the patella and measured 22 centimeters by 1 centimeter. The second scar was located on the lateral knee and lower thigh and measured 12 centimeters by 0.4 centimeters. The third scar was located on the lateral knee and lower thigh and measured 4 centimeters by 0.4 centimeters. There were no other pertinent physical findings or complications associated with the scars. The Board notes that a review of the contemporaneous medical evidence of record does not show any additional evidence demonstrating any additional right knee scars or a condition inconsistent with that already identified by the VA examinations of record. Considering the evidence under the both the old and new rating criteria, the Board finds that a rating higher than 0 percent is not warranted. None of the evidence indicates that the two service-connected linear right knee scars are painful or unstable, cause any limitation of motion, or cover an area of at least 39 square centimeters or 6 square inches. In addition, the scars are not burn scars nor are they deep and non-linear and are not associated with underlying soft tissue damage. The scars do not cover an area or areas of 144 square inches or greater. Thus, a compensable rating is not warranted under Diagnostic Code 7801, 7802, 7804, or 7805. Therefore, a rating higher than 0 percent is not warranted throughout the period of appeal for the two linear right knee scars. As of December 16, 2019, the Board finds a rating in excess of 10 percent for the single painful right knee scar under Diagnostic Code 7804 is not warranted. As noted in the Diagnostic Code, the rating is based on number of scars on the Veteran’s body. While the right knee has three scars, only one scar has been found to be painful for the purposes of Diagnostic Code 7804. Therefore, as a higher rating requires more than one scar that is painful or unstable, a higher rating is not warranted, and the claim for increased ratings must be denied. The Board notes that the 10 percent rating was based on a finding that the scar was painful as of December 16, 2019. The scar is not shown to have been painful prior to December 16, 2019. Accordingly, the Board finds that the preponderance of the evidence is against the assignment of any higher ratings and the claims are denied. REASONS FOR REMAND 1. Entitlement to service connection for right lower extremity radiculopathy to include as secondary to service-connected lumbar spine disability is remanded. 2. Entitlement to increased ratings for a lumbar spine disability is remanded. 3. Entitlement to increased ratings for a right knee disability is remanded. The October 2020 VA back and knee examinations do not contain complete responses for passive range of motion measurements and pain on weight-bearing testing. The Board finds the record incomplete to adjudicate those claims. Where the evidence of record does not show the current state of the Veteran’s disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Therefore, after obtaining the Veteran’s updated treatment records, the Veteran should be provided updated VA examinations that document the current symptomatology of the service-connected disabilities. In addition, the Board notes that a supplemental statement of the case was not issued for the right knee disability prior to returning the case to the Board. On remand, after the requested evidence is obtained, the RO is instructed to readjudicate the claim and issue a supplemental statement of the case. The Board recognizes that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled. Clemons v. Shinseki, 23 Vet. App. 1 (2009). VA medical records and the October 2020 VA medical examination report show that the Veteran had radiculopathy symptoms associated with the service-connected lumbar spine disability. At the October 2020 VA examination, the examiner diagnosed intervertebral disc syndrome (IVDS) as a progression of the service-connected lumbar spine disability. As the October 2020 VA lumbar spine examiner indicated that the Veteran had lower extremity neurological symptoms related to lumbar spine IVDS, the claim for service connection for a right lower extremity radiculopathy is inextricably intertwined with the claim for a higher rating for the service-connected lumbar spine disability. Therefore, further consideration of the issue is deferred. The matters are REMANDED for the following action: 1. Obtain any VA treatment records that are not already of record, to include all records since September 2020. 2. Schedule the Veteran for a VA spine examination conducted by a physician to assist in determining the current severity of the service-connected lumbar spine, and right lower extremity disabilities. The examiner must review the record and should note that review in the report. A rationale for all opinions should be provided. The examiner must provide ranges of motion for passive and active motion of the lumbar spine and for weight-bearing and nonweight-bearing. The examiner should state whether there is any additional loss of lumbar spine function due to painful motion, weakened motion, excess motion, fatigability, or incoordination. The examiner should indicate whether, and to what extent, the Veteran experiences functional loss of the lumbar spine due to pain or any other symptoms during flare-ups or with repeated use. The examiner should note any incapacitating episodes associated with the lumbar spine disability, and their frequency and duration. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. The examiner is asked to state whether or not there is any ankylosis of the spine or any segment of the spine. The examiner should identify and describe any lower extremity neurologic disabilities identified as due to the service-connected lumbar spine and lower extremity disabilities, the nerves affected, and the level of impairment. The examiner should opine whether it is at least as likely as not (50 percent or greater probability) that any identified radiculopathy disability had its onset during active service or is related to any incident of service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that any identified radiculopathy disability is due to been aggravated (increased in severity beyond the natural progress of the disorder) by the service-connected disabilities, to specifically include the lumbar spine disability. 3. Schedule the Veteran for a VA joints examination for the service-connected right knee disability. The examiner must review the claims file and should note that review in the report. All testing deemed necessary should be performed. The examiner should state all examination findings, with the rationale for the comments and opinions expressed. The examiner should specifically state ranges of motion for active and passive motion and on weight-bearing and nonweight-bearing. The examiner should provide ranges of motion and comment on whether there is any additional loss of function due to weakened movement, excess motion, fatigability, incoordination, pain on use, or on flare ups. The examiner should discuss the reported flare ups and what additional loss of function or motion occurs during flare ups. The examiner should discuss the severity, frequency, and duration of any flare-ups and name the precipitating and alleviating factors. Any opinion expressed must be accompanied by a complete rationale. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Kass, 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.