Citation Nr: 21025751 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 17-31 002 DATE: April 28, 2021 ORDER A 10 percent rating for right knee scars associated with right knee lateral meniscus tear, status post (s/p) arthroscopic partial meniscectomy, is granted. The request to reopen the claim of entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disability, is granted. The request to reopen the claim of entitlement to service connection for a back disorder, to include as secondary to service-connected right knee disability, is granted. REMANDED Entitlement to a rating in excess of 20 percent for right knee instability is remanded. Entitlement to a rating in excess of 10 percent for right knee lateral meniscus tear, s/p arthroscopic partial meniscectomy, is remanded. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disability, is remanded. Entitlement to service connection for a back disorder, to include as secondary to service-connected right knee disability, is remanded. FINDINGS OF FACT 1. The Veteran has 2 right knee scars that are painful, but did not have a total area equal to or greater than 39 square centimeters. 2. In an October 2005 rating decision, the VA Regional Office (RO) denied the Veteran’s service connection claims for a left knee disorder and a back disorder. The Veteran was notified of the decision and his appellate rights, but he did not appeal or submit new and material evidence within the one-year period thereafter. 3. The evidence received since the October 2005 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the Veteran’s claims for service connection for a left knee disorder and a back disorder. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for right knee scars associated with right knee lateral meniscus tear, s/p arthroscopic partial meniscectomy, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code (DC) 7804. 2. The evidence received since the final July 1995 rating decision is new and material, and the claim for entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disability, is reopened. 38 U.S.C. § 5108; 38 C.F. R. § 3.156. 3. The evidence received since the final July 1995 rating decision is new and material, and the claim for entitlement to service connection for a back disorder, to include as secondary to service-connected right knee disability, is reopened. 38 U.S.C. § 5108; 38 C.F. R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the U.S. Marine Corps from September 2000 to November 2004. New and Material 1. The request to reopen the claim of entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disability, is granted; the request to reopen the claim of entitlement to service connection for a back disorder, to include as secondary to service-connected right knee disability, is granted. Although a decision is final, a claim will be reopened if new and material evidence is presented. 38 U.S.C. § 5108. New and material evidence can be neither cumulative, nor redundant, of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the credibility of the evidence is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The evidence need not relate specifically to the reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). Additionally, the phrase “raises a reasonable possibility of substantiating the claim” is meant to create a low threshold that enables, rather than precludes, reopening. Id. at 117. Reopening is required when the newly submitted evidence, combined with VA assistance and considered with the other evidence of record, raises a reasonable possibility of substantiating the claim. Id. at 117. Notwithstanding the foregoing, at any time after VA issues a decision on a claim, if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim. 38 C.F.R. § 3.156(c)(1) (2017). Such official service department records include, but are not limited to, records that are related to a claimed in-service event, injury, or disease, regardless of whether such records mention the Veteran by name. Such records do not include any records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim, or because the claimant failed to provide sufficient information for VA to identify and obtain the records from the respective service department, the Joint Services Records Research Center, or from any other official source. 38 C.F.R. § 3.156(c)(2). Turning to the Veteran’s claims for entitlement to service connection for a left knee disorder and a back disorder, since the final October 2005 rating decision, the Board has received additional evidence regarding these claims, including VA examinations and medical treatment records, to include a January 2020 letter addressing the etiology of the Veteran’s left knee and back conditions. This evidence is new and material because it was not of record at the time of the final rating decision in October 2005 and it raises a reasonable possibility of substantiating these service connection claims. See Shade, 24 Vet. App. 110. Increased Rating The Veteran’s entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular DC, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different DCs, is to be avoided when evaluating a Veteran’s service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Staged ratings have been considered for the Veteran’s right knee scars. However, the Board finds that staged ratings are not appropriate for this condition as the evidence demonstrates that the Veteran’s right knee scars have been consistent throughout the appeal period. 2. A 10 percent rating for right knee scars associated with right knee lateral meniscus tear, s/p arthroscopic partial meniscectomy, is granted. The Veteran contends that he is entitled to a higher rating for his right knee scars. The Veteran is in receipt of a noncompensable rating for his right knee scar under DC 7805. The Board notes that on July 13, 2018, VA published a final rule amending its regulations on skin disabilities. 83 Fed. Reg. 32592 (July 13, 2018). The effective date of the final rule is August 13, 2018. However, for 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. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran filed his initial increased rating claim for his lumbar spine disability before the August 13, 2018 effective date, the Board will consider whether either the old or new rating criteria is more favorable to the Veteran. Under the old rating criteria, DC 7805 provided that other scars (including linear scars) and other effects of scars evaluated under DCs 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under DCs 7800-7804 under an appropriate DC. 38 C.F.R. § 4.118, DC 7805. The Board notes that this DC is largely unchanged under the new amendments apart from the replacement of the phrase “(including linear scars)” with “and other effects of scars evaluated under DCs 7800, 7801, 7802, or 7804.” 38 C.F.R. § 4.118, DC 7805 (August 13, 2018). The pre-amended DC 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118, DC 7801 (2017). In contrast, the amended DC 7801 contemplates 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. 38 C.F.R. § 4.118, DC 7801 (August 13, 2018). Both the old and new criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, DC 7801. Note (1) to the pre-amended DC 7801 stated that a deep scar is one associated with underlying soft tissue damage. Prior to August 13, 2018, DC 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, Diagnostic 7802 (2017). The amended version is 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. 38 C.F.R. § 4.118, DC 7802 (August 13, 2018). Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. Under both the old and new rating criteria, DC 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating for is assigned for one or two such scars. A 20 percent rating is warranted for three to four scars, and a 30 percent disability rating is assigned for five or more scars. 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) provides that if one or more scars are both unstable and painful, an additional 10 percent should be added to the evaluation 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 this DC, when applicable. 38 C.F.R. § 4.118, DC 7804. Turning to the relevant medical evidence, in the November 2017 VA examination, two scars were noted in the right knee. Scar 1 in the right anterior knee, measured at 9 cm in length, was described as healed, with no pain and swelling. Scar 2 on the right above the knee, measured at 1.5 cm in length, was described as healed. Neither of the scars were noted as painful, unstable (with frequent loss of covering of skin over the scar), or due to burns. In the December 2019 hearing, the Veteran testified that his right knee scar was painful to the touch. Based on the evidence above, the Board finds that a 10 percent rating due to painful scars is warranted for the entire appeal period. As the area of the Veteran’s two right knee scars does not cover at least 6 square inches or 39 square centimeters, a compensable rating for the Veteran’s right knee scars is not warranted based on the size of the Veteran’s right knee scars. 38 C.F.R. § 4.118, DC 7801. Specifically, in the November 2017 VA examination, Scar 1 in the right anterior knee was measured at 9 cm in length, and scar 2 on the right above the knee was measured at 1.5 cm in length. However, the Board finds that a 10 percent rating is warranted for the Veteran’s right knee scars based on the scars being painful. While the November 2017 VA examination noted that the Veteran’s right knee scars were not painful or unstable, in December 2019, the Veteran testified that his right knee scars were painful to the touch. Given the Veteran’s competent and credible lay statements, the Board finds that a 10 percent rating due to two painful scars is warranted. 38 C.F.R. § 4.118, DCs 7804. The Board notes that at no point during the appeal period is a rating in excess of 10 percent warranted for the Veteran’s right knee scars, as the Veteran only has two scars in the right knee, and the area of the scars do not cover at least 12 square inches (77 square centimeters). 38 C.F.R. § 4.118. Accordingly, a 10 percent rating for right knee scars associated with right knee lateral meniscus tear, s/p arthroscopic partial meniscectomy (previously postoperative ACL), is granted for the entire appeal period. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disorder, to include as secondary to service-connected right knee disability, is remanded. The Veteran contends that he has a left knee disorder that is secondary to his right knee disability. In July 2013, the VA examiner opined that his left knee disorder was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected right knee condition. The examiner reasoned that one knee condition does not cause another knee condition. In addition, the examiner noted that there was no severely abnormal gait that could have placed undue strain on the left knee. In March 2017, the examiner opined that the Veteran’s left knee strain was not at least as likely as not aggravated beyond its natural progression by his service-connected right knee condition. The examiner reasoned that the Veteran had a normal MRI of the left knee. The examiner also noted that the Veteran does not have any current diagnosis relating to his left knee, and the examiner could find no reliable abnormalities on examination. X-rays show no significant change. There was no indication that he has overused the knee. The examiner also noted that the July 2013 VA examination noted no significant disruption of gait, either reflecting degenerative change or ligamentous abnormalities, that could have led to a pathology. The examiner noted that now, 15 years after his initial right knee surgery, one would expect detectable changes on imaging, if there was truly a left knee pathology relating to the Veteran’s service-connected right knee condition. In a January 2020 letter, the Veteran’s private physician treating him for his right knee condition opined that the Veteran’s right knee injury is related to his injury sustained during his military career in 2002. The private physician also noted that it is highly likely that he could have subsequent injury to other lower extremity joints or his low back as a result of his abnormal gait following the right knee injury. The private physician also noted that, as he has not treated these specific injuries, it is difficult to say so specifically. The Board finds the July 2013, March 2017, and January 2020 opinions inadequate. Both the July 2013 and March 2017 VA opinions relied on the notion that the Veteran had no severely abnormal gait that could have placed undue strain on the left knee. However, in a January 2020 letter, the Veteran’s private physician who treated him for his right knee noted that his right knee condition has “significantly affected his gait and certainly could result in other low back and lower extremity injuries.” As there is evidence in the record to contradict the July 2013 and March 2017 VA examiners’ opinions, they are inadequate. Furthermore, regarding the March 2017 opinion, the VA examiner also noted that the Veteran did not have a diagnosis of a left knee condition. However, the Board notes that while pain, by itself, is not a disability for which service connection may be granted by VA recognizes pain as a disability where there is also functional impairment. See Saunders v. Wilkie, 886 F. 3d 1356, No. 2017-1466 (Fed. Cir. 2018). The March 2017 VA examiner did not address whether the Veteran had pain in his left knee that caused functional impairment. With respect to the January 2020 opinion, the Board finds the January 2020 private opinion too speculative to assign it any significant probative weight. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (observing that “may or may not” opinions are more common in opinions from treating providers and they cannot be given probative value). Given the above, while the Board regrets the additional delay, the Board finds that a remand is necessary to obtain another VA examination to determine the nature and etiology of the Veteran’s left knee condition. 2. Entitlement to service connection for a back disorder, to include as secondary to service-connected right knee disability, is remanded. The Veteran contends that he has a back disorder that is secondary to his right knee disability. In July 2013, the VA examiner opined that the Veteran’s back disorder was less likely than not (less than 50 percent probability) proximately due to or the result of the Veteran’s service-connected right knee condition. The examiner reasoned that there was no severely abnormal gait that could have placed undue strain on the back. In March 2017, the VA examiner opined that the Veteran’s back strain was not at least as likely as not aggravated beyond its natural progression by his service-connected right knee condition. The examiner reasoned that, during the July 2013 VA examination, it was noted that “there was no severely abnormal gait that could have placed undue strain on the back.”. The examiner noted that the July 2013 back examination was essentially unremarkable. The examiner noted that the Veteran had been diagnosed with a “strain” in 2011. The examiner explained that a strain implies a soft tissue injury which is usually temporary and may be multifactorial in nature. There is no data to support any aggravation of any condition involving the Veteran’s back. There is no data to support that the Veteran has had any specific evaluation or treatment relating to his back since that time. In a January 2020 letter, the Veteran’s private physician treating him for his right knee condition opined that the Veteran’s right knee injury is related to his injury sustained during his military career in 2002. The private physician also noted that it is highly likely that he could have subsequent injury to other lower extremity joints or his low back as a result of his abnormal gait following the right knee injury. The private physician also noted that, as he has not treated these specific injuries, it is difficult to say so specifically. The Board finds the July 2013, March 2017, and January 2020 opinions inadequate. Both the July 2013 and March 2017 VA opinions relied on the notion that the Veteran had no severely abnormal gait that could have placed undue strain on the back. However, in a January 2020 letter, the Veteran’s private physician who treated him for his right knee noted that his right knee condition has “significantly affected his gait and certainly could result in other low back and lower extremity injuries.” As there is evidence in the record to contradict the July 2013 and March 2017 VA examiners’ opinions, they are inadequate. With respect to the January 2020 opinion, the Board finds the January 2020 private opinion too speculative to assign it any significant probative weight. See Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992) (observing that “may or may not” opinions are more common in opinions from treating providers and they cannot be given probative value). Given the above, while the Board regrets the additional delay, the Board finds that a remand is necessary to obtain another VA examination to determine the nature and etiology of the Veteran’s back condition. 3. Entitlement to a rating in excess of 20 percent for right knee instability PO ACL is remanded; entitlement to a rating in excess of 10 percent for right knee lateral meniscus tear, status post arthroscopic partial meniscectomy is remanded. The Veteran contends that he is entitled to higher ratings for his right knee disability. The Veteran last underwent a VA examination for his knees in November 2017. Since then, he alleges that his right knee condition has worsened. See December 2019 hearing transcript; see also February 2014 correspondence. As it has been over 2 years since the Veteran underwent his last VA examination for his right knee condition, a remand is necessary to obtain another VA examination that assesses the current condition of his right knee. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997) (holding that the Veteran was entitled to a new examination after a two-year period between the last VA examination and the Veteran’s contention that the pertinent disability had increased in severity). VA’s General Counsel has similarly indicated that when a Veteran asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. VAOPGCPREC 11-95 (April 7, 1995) (while the Board is not required to direct a new examination simply because of the passage of time, a new examination is appropriate when the claimant asserts that the disability in question has undergone an increase in severity since the time of the last examination). The matters are REMANDED for the following action: 1. Give the Veteran an opportunity to identify any outstanding pertinent treatment records, VA or private, that have not already been associated with the claims file. The AOJ should then attempt to obtain those records if the appellant provides the appropriate authorization. 2. RIGHT KNEE: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right knee disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability 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). 3. LEFT KNEE: Schedule the Veteran for a VA examination for his claimed left knee disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Identify all left knee conditions present. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms, including pain, that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. b. For each left knee condition identified, is it at least as likely as not (50 percent or greater probability) that the identified left knee disability is related to service or to the Veteran’s service-connected right knee disability. c. Is the Veteran’s left knee disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected right knee disability. The examiner is requested to address the fact that the Veteran’s right knee condition has significantly affected his gait. See January 2020 private letter. 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. 4. LOW BACK: Schedule the Veteran for a VA examination for his claimed left knee disability. The examiner must review the claims file. The examiner is asked to provide a response to the following: a. Identify all low back conditions present. If a diagnosis cannot be provided but the Veteran’s condition manifests in symptoms, such as pain, that cause functional impairment, then the examiner should consider them a “disability” for the purpose of providing the requested opinion(s) below. b. For each low back condition identified, is it at least as likely as not (50 percent or greater probability) that the identified low back disability is related to service or to the Veteran’s service-connected right knee disability. c. Is the Veteran’s low back disability at least as likely as not aggravated, i.e., worsened beyond its natural progression, by his service-connected right knee disability. The examiner is requested to address the fact that the Veteran’s right knee condition has significantly affected his gait. See January 2020 private letter. 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. 5. After the development requested has been completed, review the medical report to ensure that it is in compliance with the directives of this Remand. If the report is deficient in any manner, implement corrective procedures. 6. After completing the above action, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. E. Grossman, 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.