Citation Nr: 21014138 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 20-17 113 DATE: March 11, 2021 ORDER Service connection for a right a knee disability is granted. From January 11, 2018, to April 30, 2020, a 10 percent rating – though no greater, is granted for a left posterior scalp scar (so not just as of April 30, 2020). Also, since April 30, 2020, a rating in excess of 10 percent for this left posterior scalp scar is denied. REMANDED Entitlement to service connection for a cervical spine disability is remanded. FINDINGS OF FACT 1. The weight of the competent and credible evidence shows the Veteran’s right knee disability clearly and unmistakably pre-existed his service, but this disability nonetheless was aggravated during or by his service, meaning worsened beyond its natural or normal progression. 2. His left posterior scalp scar is unstable or painful. CONCLUSIONS OF LAW 1. The criteria are met for entitlement to service connection for the right knee disability. 38 U.S.C. §§ 1111, 1131, 1153, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.306. 2. From January 11, 2018, to April 30, 2020, the criteria are met for a 10 percent rating – though no greater, for the left posterior scalp scar. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7804. 3. Since April 30, 2020, the criteria are not met for entitlement to a disability rating greater than 10 percent for this left posterior scalp scar. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7804. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from December 1978 to May 1985. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (“nexus”) between the current disability and the disease or injury in service. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).   1. Service connection for a right a knee disability is granted. The Veteran contends that his right knee disability was aggravated by his service. A Veteran is presumed to have been in sound health when entering service, except as to defects, infirmities, or disorders noted at the time of the acceptance, examination, or enrollment. 38 U.S.C. § 1111; 38 C.F.R. § 3.304(b). The term “noted” refers to “[o]nly such conditions as are recorded in examination reports.” 38 C.F.R. § 3.304(b). A “[h]istory of preservice existence of conditions recorded at the time of examination does not constitute a notation of such conditions.” 38 C.F.R. § 3.304(b)(1); see also Crowe v. Brown, 7 Vet. App. 238, 245 (1994). When no preexisting condition is noted upon examination for entry into service, a Veteran is presumed to have been sound upon entry, and the burden then shifts to VA to rebut the presumption of soundness. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004); 38 C.F.R. § 3.304. To rebut the presumption of soundness under 38 U.S.C. § 1111, there must be clear and unmistakable evidence that (1) a Veteran’s disability existed prior to service, and (2) that the preexisting disability was not aggravated during his service. Id. Here, the Board finds that there is clear and unmistakable evidence that the Veteran had a right knee disability that pre-existed his service. Specifically, as was also summarized by the December 2020 VA examiner, in January 1981 the Veteran sought treatment for right knee pain. He reported that it felt like a recurrence of a knee injury he had sustained 13 years earlier while playing basketball, meaning well before entering the military in December 1978. He was now experiencing pain intermittently. The impression was old right knee trauma with probable reinjury. The remaining service treatment records (STRs) show ongoing treatment for right knee pain, such as in March 1983 and March 1985. Also, in March 1985, the Veteran reported right knee pain that worsened with activity. The assessment was recurring right knee trauma.   From this evidence, the Board finds that there is clear and unmistakable evidence, obvious and manifest, that the Veteran had sustained a right knee injury of his patella prior to service. The Board concludes this based on the Veteran’s competent and credible statements made in January 1981 when seeking medical treatment for recurring knee pain that he had injured this same knee prior to his service and that his more recent manifestation of pain felt like a recurrence of that prior injury. Accordingly, the first prong of rebutting the presumption of soundness when he entered service is satisfied. However, as explained in Wagner, to also satisfy the second prong of the test, there also must be clear and unmistakable evidence indicating the Veteran’s service did not aggravate his pre-existing right knee disability – meaning worsen it beyond its natural or normal progression. 38 U.S.C. § 1153; 38 C.F.R. § 3.306. And, based on his complaints and what occurred during his service, the Board contrarily concludes that his service aggravated his pre-existing right knee disability. The Board further finds that the aggravation was chronic (meaning permanent), not instead merely temporary or intermittent, since the medical evidence dated in the years following his service continue to show recurrent right knee pain that he consistently attributed to his experience in service and the consequent right knee pain he had in service. For instance, in October 1994, he reported ongoing right knee pain that had been present since playing sports in service. In October 1999, he reported ongoing right knee pain that had been present since his service and had recently worsened. These records are dated prior to a subsequent (“intercurrent”) patellar injury to his right knee that occurred in 2000 that necessitated surgery. Thus, based on the STRs, post-service treatment records, and the Veteran’s credible lay statements, the Board concludes that his pre-existing right knee injury was permanently aggravated by his service.   In so finding, the Board has considered the two unfavorable VA examinations and opinions of record, but finds that neither opinion contains an adequate discussion of the STRs, and neither examination provides adequate rationale for the opinion, which is where most of the probative value of an opinion is derived. See, e.g., Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board finds that further examination is not indicated here, as the evidence demonstrates that a pre-existing right knee injury was aggravated by service. Therefore, service connection for the right knee disability is warranted. Increased Ratings Ratings for service-connected disabilities are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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. All reasonable doubt material to the determination is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The Board will consider entitlement to “staged” ratings to compensate for times when the disability may have been more severe than at others. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. From January 11, 2018, to April 30, 2020, a 10 percent rating is granted for a painful left posterior scalp scar. 3. But, both prior to and since April 30, 2020, a rating in excess of 10 percent for this left posterior scalp scar is denied. The Veteran’s left posterior scalp scar is rated under Diagnostic Code 7804 for unstable or painful scar(s). VA amended the criteria for rating skin disabilities effective August 13, 2018. However, Diagnostic Code 7804 was not changed by the August 13, 2018, amendments. According to Diagnostic Code 7804, one or two scars that are unstable or painful scars warrant a 10 percent rating. Three or four scars that are unstable or painful scars warrant a 20 percent rating. Five or more scars that are unstable or painful warrant 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. First, the Board finds that the 10 percent rating for the painful scar on the Veteran’s scalp is warranted prior to April 30, 2020, i.e., as of an earlier effective date, since he has displayed symptoms of pain related to this scar throughout the appeal period as evidenced by his lay testimony. Therefore, a 10 percent rating dating back to January 11, 2018, is warranted. However, for the entire appeal period, the Board finds that the preponderance of the evidence is against the assignment of any greater rating under Diagnostic Code 7804 because he does not have three or four scars that are unstable or painful. Rather, the evidence of record shows that he has one painful scar on his posterior scalp. The Board also has considered the other Diagnostic Codes pertaining to scars. However, the Veteran’s scar on his scalp 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 since August 13, 2018, are inapplicable. Finally, the evidence of record shows there are no other disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-04 as contemplated under both pre- and post-August 13, 2018, Diagnostic Code 7805. REASONS FOR REMAND 1. Entitlement to service connection for a cervical spine disability is remanded. The Veteran contends that he has suffered from a cervical spine disability since his service, and that his service-connected lumbar spine disability caused or aggravates his cervical spine disability. In December 2020, a VA examiner concluded that it is less likely than not the Veteran’s cervical spine disability was caused by his service, stating there were no complaints related to the neck (i.e., cervical spine) in service. However, this opinion does not consider the Veteran’s statements of pain in his cervical spine as well as radiating symptoms into his upper extremities since his service. The examiner also provided no rationale for the finding that the Veteran’s service-connected shoulder and lumbar spine disabilities did not cause or aggravate his cervical spine disability. Thus, the opinion is inadequate, and a new opinion is needed. Accordingly, this claim is REMANDED for the following action: Obtain supplemental comment (addendum opinion) concerning whether the Veteran’s cervical spine disability is as likely as not (50 percent probability or greater) directly related to his service, when taking into consideration his report of neck pain beginning during his service and continuing since his service. The examiner must also opine on whether it is as likely as not (50 percent probability or greater) the Veteran’s cervical spine disability alternatively is secondarily related to his service – meaning proximately due to, the result of, OR aggravated by his service-connected left shoulder disability, right shoulder disability, and/or lumbar spine disability. Rationale for the opinions concerning this is essential, regardless of whether favorable or unfavorable to this claim, preferably citing to evidence in the file supporting conclusions and/or accepted medical authority. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Erdheim 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.