Citation Nr: 21027866 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 17-32 913 DATE: May 7, 2021 ORDER An increased 10 percent rating for a left knee scar is granted. REMANDED The issue of entitlement to a rating in excess of 10 percent for a left knee disability is remanded. The issue of entitlement to service connection for a mental health condition is remanded. FINDING OF FACT The Veteran's left knee scar causes him pain. CONCLUSION OF LAW The criteria for a 10 disability rating for a left knee scar are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7804, 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 2009 to November 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal from January and March 2017 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). There was a March 2021 Board hearing before the undersigned Veterans Law Judge (VLJ), and the transcript is of record. The Veteran is entitled to a 10 percent disability rating for his left knee scar. Diagnostic Codes 7800 to 7805 pertain to scars. 38 C.F.R. § 4.118. The Schedule of ratings for the skin were amended effective August 13, 2018. See 38 Fed. Reg. 32,592 (July 13, 2018). Prior to August 13, 2018, the Board will consider the former version of the diagnostic codes only; however, for the period beginning August 13, 2018 the Board will consider both the old and amended version of the diagnostic codes and rate based on whichever is most favorable to the Veteran. Under both the former and amended criteria, Diagnostic Code 7804 provides for a 10 percent disability evaluation for one or two scars that are unstable or painful. A 20 percent evaluation is assigned where there are three or four scars that are unstable or painful. A 30 percent evaluation is assigned where there are five or more scars that are unstable or painful. An unstable scar is one where there is frequent loss of covering of skin over the scar. Under both the former and amended codes, pursuant to Diagnostic Code 7805, a scar may be rated on any disabling effect(s) not considered as part of Diagnostic Codes 7801 to 7804. Upon VA examination of the Veteran's scars, the Veteran was found to have 2 nonpainful scars measuring 7 by 1 centimeters and 2 by 1 centimeters. See 4/11/2016 C&P Examination. However, during the March 2021 hearing, the Veteran reported that his scar causes him pain. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on all things of which he has personal knowledge derived from his own senses); Barr v. Nicholson, 21 Vet. App. 303(2007); 38 C.F.R. § 3.159(a)(2). Therefore, the Board finds that the Veteran is entitled to a 10 percent evaluation for having two painful scars on his left knee. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for left knee disability is remanded. VA has a duty to provide a new, contemporaneous medical examination when "additional evidence showing a change in [the relevant condition]" becomes available. Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007). A "bald, unsubstantiated claim for an increase in disability rating," is insufficient to compel VA to provide a veteran with a new, contemporaneous medical examination. Glover v. West, 185 F.3d 1328, 1333 (Fed. Cir. 1999). However, reexamination is required when "evidence indicates there has been a material change in a disability or that the current rating may be incorrect." 38 C.F.R. § 3.327(a) (2020). To trigger the need for a new examination, there must at least be an allegation that the Veteran's condition has worsened. Palczewski, 21 Vet. App. at 182. During his March 2021 hearing, the Veteran contended that his left knee disability has gotten worse since his March 2016 VA examination such that it includes constant pain, "crunchy" sounds, and flare-ups. Therefore, remand is necessary to afford the Veteran a new VA examination. 2. The issue of entitlement to service connection for a mental health condition is remanded. VA is obligated to provide an examination when the record contains competent lay or medical evidence that the claimant has a current disability or signs and symptoms of a current disability, the record indicates that the disability or signs and symptoms of disability may be associated with active service, and the record does not contain sufficient evidence to make a decision on the claim. See 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). While in service, the Veteran reported experiencing heart racing and trouble sleeping. See 1/7/2016 STR. Similarly, during the March 2021 Board hearing, the Veteran reported experiencing chest pains related to stress. However, during the intervening period a VA examiner opined that the Veteran's claimed mental health condition is undiagnosed because the condition resolved. 4/11/2016 C & P Exam. A new VA examination is needed to resolve the discrepancy between the Veteran's persistent and consistent complaints of a mental health disability and the VA examination opinion that the Veteran's condition has resolved. Thus, the claim of service connection for a mental health disability is remanded for a new VA opinion. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA examination with an appropriate clinician to determine the nature and etiology of any acquired psychiatric disorder. All indicated tests and studies should be conducted and all clinical findings reported in detail. The entire claims file should be made available to and be reviewed by the examiner in conjunction with this request. Following a review of the claims file and examination of the Veteran, the examiner should then address the following: (a.) Please identify any current psychiatric disorder by diagnosis. (b.) For each disorder identified, please state whether it is at least as likely as not (50 percent probability or more) that the disorder had its onset in, was caused by, or is otherwise related to service, specifically including the pressures related to service and leaders in service. (c.) If the Veteran is diagnosed with a personality disorder, the examiner should state whether there was a superimposed disease or injury that occurred during service. (d.) If a diagnosis of PTSD is warranted, specify the claimed in-service stressor(s) upon which that diagnosis is based. (e.) For each disorder identified other than PTSD, please state whether it is at least as likely as not (50 percent probability or more) that the disorder was caused by discomfort associated with the Veteran's service-connected lower back and/or knee disabilities. (f.) For each disorder identified other than PTSD, please state whether it is at least as likely as not (50 percent probability or more) that the disorder was aggravated (worsened beyond natural progression) by the Veteran's service-connected lower back and/or knee disabilities. In offering any opinion, please consider medical and lay evidence dated both prior to and since the filing of the claim. A complete rationale for any opinion rendered must be provided. If you cannot provide the requested opinions without resorting to speculation, please expressly indicate this and provide a supporting rationale as to why that is so. 2. Schedule the Veteran for a VA examination to assess the current nature and severity of his service-connected knee disability. Range of motion should be reported, including whether and the extent to which such motion is affected by pain, weakness, fatigue, lack of endurance, incoordination or other symptoms resulting in functional loss. (a.) Based upon a review of the medical records, lay statements submitted in support of the claim, and/or statements elicited from the Veteran during the examination, state whether the Veteran experiences flare ups of his service-connected knee disability, and how he or she characterizes the additional functional loss during a flare. (b.) If the Veteran describes experiencing flare ups, identify the: a. frequency; b. duration; c. precipitating factors; and d. alleviating factors. (c.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up range of motion is additionally limited to 30 degrees flexion (the measurement required for the next higher rating). Please explain why or why not. (d.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that repetitive use over time additionally limits motion to 30 degrees or less (for flexion) or 10 degrees or more (for extension). Please explain why or why not. (e.) Based upon the information elicited as a result of the foregoing, state whether it is at least as likely as not (50 percent probability or greater) that during a flare up the disability is manifested by effusion and/or locking. If the examiner cannot provide the requested opinions without resorting to speculation, he/she should explain why an opinion cannot be provided (e.g. lack of sufficient information/evidence in this case, or a lack of knowledge among the medical community at large, and not the insufficient knowledge of the individual examiner). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sloley, 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.