Citation Nr: 21025576 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 15-31 476 DATE: April 28, 2021 ORDER For the period on appeal prior to March 11, 2019, an initial rating of 10 percent, but no higher, for bilateral knee scars is granted. Beginning March 11, 2019, a rating in excess of 20 percent for bilateral knee scars is denied. FINDINGS OF FACT 1. For the period on appeal prior to March 11, 2019, the Veteran had no more than 2 knee scars that were painful. 2. Beginning March 11, 2019, the Veteran did not have 5 or more knee scars that are unstable or painful. CONCLUSIONS OF LAW 1. For the period on appeal to March 11, 2019, the criteria for an initial rating of 10 percent, but no higher, for bilateral knee scars have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804 (prior to and effective August 13, 2018). 2. Beginning March 11, 2019, the criteria for a rating in excess of 20 percent for bilateral knee scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804 (prior to and effective August 13, 2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from January 2010 to March 2014. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, granted service connection for bilateral knee scars and assigned a noncompensable rating, effective March 5, 2014. In July 2018, the Board remanded the appeal for further development. In a June 2019 rating decision, the RO increased the rating for bilateral knee scars to 20 percent, effective March 11, 2019. In September 2019, the Board again remanded the claim due to non-compliance with the July 2018 Board remand. On review, the Board finds substantial compliance with its September 2019 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand). The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016).  Increased Rating - Pertinent Laws and Regulations Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran’s service-connected scars are currently rated as noncompensable under DC 7805 for the period on appeal to March 11, 2019, and 20 percent disabling thereafter under DC 7804. Effective August 13, 2018, so during the period on appeal here, changes were made to the rating criteria for skin disabilities (38 C.F.R. § 4.118). See 83 Fed. Reg. 32,592 (July 13, 2018). The old regulation will be considered for periods both before and after the effective date of the regulatory change. However, the revised criteria will be applied if favorable to the claim from the effective date of the regulatory change. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The revisions to DCs 7801, 7802, and 7805, pertaining to scars: (1) replace the deep/nonlinear/superficial terminology in Diagnostic Code 7801 and 7802 with “underlying soft tissue damage”; (2) streamline the body parts/areas into six zones of the body, defined as each extremity, the anterior trunk and the posterior trunk (Note 1 to DCs 7801 and 7802); and (3) indicate how to assign separate evaluations for each affected zone of the body under § 4.25 (Note 2 to DCs 7801 and 7802). Under DC 7801 in effect prior to the August 13, 2018 change, a 10 percent rating is assigned for a scar not on the head, face, or neck, that is deep (associated with underlying soft tissue damage) and nonlinear exceeding 6 square inches (39 sq. cm.) in area; a 20 percent rating is awarded if the area or areas exceed 12 square inches (77 sq. cm.); a 30 percent rating is warranted for area or areas exceeding 72 square inches (465 sq. cm.); and a 40 percent rating is warranted for area or areas exceeding 144 square inches (929 sq. cm.). Since the August 13, 2018 revision, a 10 percent rating is assigned for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.); a 20 percent rating is awarded if the area or areas are at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.); a 30 percent rating is awarded if the area or areas are at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.); and a 40 percent rating is awarded if the area or areas are at least 144 square inches (929 sq. cm.). Under DC 7802 in effect prior to August 13, 2018, if a scar on other than the head, face, or neck is superficial (not associated with soft tissue damage) and nonlinear, a maximum 10 percent rating is assigned if affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Since August 13, 2018, the maximum rating of 10 percent under DC 7802 is warranted for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage for area of areas of 144 square inches (929 sq. cm.) or greater. Under DC 7804, a scar will be assigned a 10 percent rating if there are one or two scars that are painful or unstable; a 20 percent rating if there are three or four scars that are painful or unstable; and a 30 percent rating if there are five or more scars that are painful or unstable. 38 C.F.R. § 4.118. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) states that, if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804 when applicable. There were no changes to DC 7804 in August 2018. DC 7805 in effect prior to August 13, 2018 provides that scars (including linear scars) not otherwise rated under DCs 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 DCs 7800-7804 are to be considered. 38 C.F.R. § 4.118, DC 7805. Since the August 13, 2018 revision, DC 7805 instructs to evaluate other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804 not considered in a rating provided under an appropriate diagnostic code. In evaluating a disability, the Board considers the current examination reports considering the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Lay assertions may serve to support a claim for service connection by establishing the occurrence of observable events or the presence of disability or symptoms of disability subject to lay observation. 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F. 3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Bilateral Knee Scars The Veteran is currently in receipt of a noncompensable disability rating for the period on appeal prior to March 11, 2019, and a 20 percent disability thereafter. He asserts that a higher rating is warranted. On review of the evidence, both lay and medical, and after resolution of all reasonable doubt in favor of the Veteran, the Board finds that his bilateral knee scars more nearly approximate the criteria for a disability rating of 10 percent under DC 7804 for the period prior to March 11, 2019. Specifically, the evidence is in equipoise as to whether some of the Veteran’s knee scars were painful. The December 2013 VA examiner found 7 total scars in his bilateral knees and found none were painful or unstable. However, in an April 2015 statement accompanying his notice of disagreement, the Veteran reported “a few” of his surgical scars had slight discomfort when pressed or rubbed and that he noticed some nerve damage in at least one of them, and in his September 2015 VA Form 9 stated that he has two scars that are painful and unstable: one was on the right tibia which became irritated and painful when any pressure was applied; the second painful scar was on the left thigh and resulted in pain along the incision with any pressure or movement. See April 2015 lay statement; September 2015 VA Form 9. The Board notes that the Veteran is competent to report an observable symptom such as pain. Layno v. Brown, 6 Vet. App. 465 (1994). The medical evidence does not indicate that any of the scars were unstable. Therefore, with resolution of any doubt in the Veteran’s favor, and for the period prior to March 11, 2019, the Board finds that he had two painful scars on his knees, which approximates the criteria for a 10 percent rating. However, a rating in excess of 10 percent for the period prior to March 11, 2019 is not approximated. Under DC 7801 before and after the August 2018 change in regulation is not for application as the evidence does not demonstrate that the Veteran’s bilateral knee scars were deep and nonlinear and there is no evidence of soft tissue damage prior to March 11, 2019. DC 7802 is not for application under the pre-August 2018 regulation because the Veteran’s bilateral knee scars are linear. Under the regulation effective August 2018, the Veteran’s scars did not encompass an area or areas of 144 square inches (929 sq. cm.) or greater. A higher rating is not approximated under DC 7804 as the Veteran specifically indicated he had two painful scars, and not three or four scars that were painful or unstable. Lastly, DC 7805 is not for application under the pre-August 2018 or post-August 2018 regulation because none of the Veteran’s service-connected scars impact functionality prior to March 11, 2019. Indeed, the December 2013 and March 2019 VA examination reports specifically state that there is no loss of function due to the Veteran’s bilateral knee scars and the Veteran did not indicate any loss of function related to the scars. Therefore, ratings under other related DCs are not warranted. As such, a rating in excess of 10 percent is not approximated. A rating in excess of 20 percent for the period on appeal from March 11, 2019 is not warranted. DC 7801 under the regulation before August 2018 is not for application as the evidence does not demonstrate that the Veteran’s bilateral knee scars are deep and nonlinear. Under the regulation from August 2018, while there is evidence of soft tissue damage, it involves one scar and is less than 6 square inches. As noted above, DC 7802 is not for application in this instance under the pre- or post-August 2018 regulations. In regard to DC 7804, the March 2019 VA examiner stated there were 2 painful scars, but then noted 3 scars were tender to palpation; and the August 2020 examiner found 4 painful scars. Regardless, there is no evidence of five or more scars that are painful or unstable. In regard to DC 7805, the August 2020 VA examiner indicated that his scars have resulted in limitation of motion due to pain on both knees and has progressed from mild to moderate-severe. However, additional rating under DC 7805 is not warranted as the Veteran is being compensated for limitation of motion under DC 5260 for right and left Osgood-Schlatter’s disease. See Esteban v. Brown, 6 Vet. App. 259, 261- 62 (1994). In conclusion, the Board finds that for the rating period to March 11, 2019, a 10 percent rating, but no higher, for the Veteran’s bilateral knee scars is warranted, and a rating in excess of 20 percent thereafter is not approximated. The Board also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. Here however, the Veteran’s VA examination report showed that he was gainfully employed. The Board, therefore, finds that Rice is inapplicable, and a TDIU request has not been inferred. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Moldawer, Associate 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.