Citation Nr: 21027887 Decision Date: 05/07/21 Archive Date: 05/07/21 DOCKET NO. 16-22 541 DATE: May 7, 2021 ORDER Entitlement to an increased rating of 20 percent, but no higher, for left knee scars is granted. REMANDED Entitlement to a disability rating in excess of 20 percent for chondromalacia, left knee status post meniscectomy with instability (left knee disability) for the period from April 1, 2014, through April 27, 2016 is remanded. FINDING OF FACT The Veteran has three scars on his left knee which are residuals of surgeries performed related to service-connected left knee disabilities, for which the evidence is at least in equipoise as to whether they are all painful. CONCLUSION OF LAW The criteria for an increased rating to 20 percent due to three painful scars which are the residuals of surgeries for service-connected left knee disabilities have been met. 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from May 1978 to August 1990. A January 2020 decision (Board Decision) the Board of Veterans' Appeals (Board) addressed several issues, including the denial the Veteran's claim for (1) a rating in excess of 20 percent for chondromalacia, left knee status post meniscectomy with instability (left knee disability) for the period from April 1, 2014, through April 27, 2016; and (2) a rating in excess of 10% for left knee scars. The Veteran appealed that decision to the U.S. Court of Appeals for Veterans Claims (CAVC or Court). In December 2020 the Court granted the Parties' Joint Motion for Partial Remand (JMPR), vacating the parts of the Board's decision which denied these claims and remanded them back to the Board for further development and/or readjudication. The parties agreed, and the Court concurred, that other issues addressed in the Board Decision are not subject to the JMPR or Court Order for remand. To comply with the terms of the JMPR, the Board, in turn, is remanding the claim related to the Veteran's left knee disability to the agency of original jurisdiction (AOJ) for additional evidentiary development and other action consistent with the JMPR. 1. Entitlement to an increased rating of 20 percent for left knee scars. In the JMPR, the parties agreed that the Board erred by not providing an adequate statement of reasons or bases for its January 2020 decision by not adequately addressing the number of scars the Veteran has which are residual to surgeries for his service connected left knee disabilities, in conjunction with evidence available as to which of these scars are painful. The Veteran had several earlier arthroscopic left knee surgeries and a total left knee replacement surgery in April 2016. The Veteran's left knee scars are rated under 38 C.F.R. § 4.118, Diagnostic Code (DC) 7804. Under DC 7804, a 10 percent rating is warranted for one or two scars that are unstable or painful, and a 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating, which is the highest rating permitted by law for this disability, is warranted if there are 5 or more scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. These left knee scars are not a disfigurement of the head, face, or neck (DC 7800); noted to be, or alleged by the Veteran to be, deep or that cause limited motion (DC 7801); and they do not cover an area of 929 square cm or greater, (DC 7802). Thus, only DC 7804 is applicable. After review of the record, the Board finds that the evidence shows the Veteran has 4 left knee scars related to his service-connected left knee disabilities; and the evidence is at least in relative equipoise that at least 3 of his left knee scars are painful. Therefore, giving the Veteran the benefit of any reasonable doubt, this entitles him to an increased rating of 20 percent. Id.; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The record establishes that the Veteran has 4 scars on his left knee which are related to and residuals of surgeries for service-connected disabilities, including his most recent left knee total knee replacement surgery in April 2016. The Veteran was provided a VA examination for his scars in March 2016, which was prior to his total left knee replacement surgery. In the Scars/Disfigurement Disability Benefits Questionnaire (DBQ) for that examination, the examiner identified 3 scars on his anterior knee: (1) lateral, measuring 1.0 X 0.5 cm; (2) medial, measuring 1.0 X 0.5 cm; and (3) sub-patella, measuring 5.0 X 1.0 cm, with an approximate total area: 6.0 square cm. In the post- surgery for total left knee replacement VA examination provided in August 2017, the VA examiner noted a single scar related ot this surgery, located along the midline of the anterior of his left knee, with measurements of 19cm X 1.0cm. The VA examiner then referred to the Scars DBQ for the remaining scars. In this examination, the examiner did not indicate any complaints of painful scars by the Veteran. The question before the Board now is how many scars are painful or unstable. In the March 2016 VA examination, the examiner recorded that the Veteran complains of sharp pain "when the scars are touched." There is no more detail as to which of the scars, or how many are subject to this pain, or that it is less than all of them. On physical examination the examiner noted none of his scars as painful, unstable, with frequent loss of covering or both painful and unstable. The examiner also noted that there was no functional impact on his ability to work. In a Knee and Lower Leg Conditions DBQ conducted the same day by the same examiner, it was again noted the existence of left knee scars which were neither painful nor unstable, and did not cause any functional impact on the Veteran's ability to work. In the September 2014 VA examination provided to the Veteran, the examiner noted the Veteran's left knee surgery with residual scars. The examiner identified 3 scars on his left knee. However, the examiner recorded that none of his left knee scars were painful or unstable. No functional impact on the Veteran's ability to work was recorded. As none of the scars were noted to be painful or unstable, no separate scar DBQ was conducted. As noted above, the examiner in the August 2017 VA examination did not note any complaints of painful scars but did refer to the Scars DBQ for the scars which were not residuals to his total left knee replacement surgery. The Veteran submitted a written statement in March 2018, in which he states he has pain from his left knee surgical scar. The Board finds that the evidence is at least in equipoise as to the issue of whether the Veteran has painful scars related to his left knee disabilities, and the number of such painful scars. The Board finds the Veteran to be competent and credible concerning his complaints of painful scars. While a lay witness, such as the Veteran, is not normally able to provide testimony to support a finding for a disability without appropriate medical training, here the issue is whether the scars are painful, for which the Veteran is competent to provide testimony. 38 C.F.R. § 3.159 (a); See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran submitted both a written statement and gave testimony to his medical examiners that his pre-total left knee replacement surgery scars, of which there are 3, were painful. The Board gives the Veteran the benefit of the doubt on the existence of these painful scars, despite the VA examiners' indications of no painful scars, which would have to have been determined by inquiry from the Veteran himself, who did state his scars were painful. See Gilbert, 1 Vet. App. at 53. Conversely, the Board does not find evidence to support that his fourth scar, a residual of his total left knee replacement surgery, is painful. The Veteran did not provide testimony of painful scars after this surgery, nor was it noted by the VA examiner in the August 2017 VA examination. However, as the criteria for an increased disability rating of 20 percent requires 3 or 4 painful scars, the Veteran still qualifies for entitlement to this increase, regardless of whether the new scar is painful or not. The evidence does not establish that the Veteran has the required five painful left knee scars related to his left knee disabilities, to entitle him to a higher 30 percent rating. 38 C.F.R. § 4.118, DC 7804. After giving the Veteran the benefit of any reasonable doubt, the Board grants the claim for an increased rating of 20 percent, based on the presence of three painful scars related to his service-connected left knee disabilities. 38 C.F.R. § 4.118, DC 7804. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 20 percent for chondromalacia, left knee status post meniscectomy with instability (left knee disability) for the period from April 1, 2014, through April 27, 2016 is remanded. In the JMPR the parties agreed that the September 2014 and March 2016 VA examinations of the Veteran's left knee disability are inadequate, and that the Board erred by failing to provide an adequate statement of reasons or bases for relying on them. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet. App. 517, 527 (1995); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In order for an examination of the musculoskeletal system, including knees, to be adequate under 38 C.F.R. § 4.40, the medical examiner "must be asked to express an opinion on whether pain could significantly limit functional ability during flare-ups or when the [joint] is used repeatedly over a period of time." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). If feasible, the examiner should portray such determinations "in terms of the additional range-of-motion loss due to pain on use or during flare-ups." Id.; see Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Before an examiner can conclude that such estimates cannot be provided without resorting to speculation, the examiner must elicit and consider information regarding functional loss during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). The examiner for the September 2014 VA examination of the Veteran's left knee noted that pain could significantly limit his functional ability when the knee joint is used repeatedly over a period of time, but did not attempt to estimate additional loss of motion as a result of functional impairment because "[t]he claimant was unable to replicate the estimated limitation at the time of the examination." See Mitchell, 25 Vet. App. at 44. In the March 2016 VA examination, the examiner noted that the Veteran experiences flare-ups of the left knee but opined that she could not estimate whether pain limited functional ability after repeated use or with flare-ups because the Veteran "was not seen during a flareup." While the Board did mention the examiner's statement, we did not otherwise address her inability to provide the requested opinion. See Sharp, 29 Vet. App. at 35-36. With these identified reasons that the respective VA examinations are inadequate, the parties agreed that remand was warranted for the Board to adequately address this matter, to include a determination of whether a retrospective medical opinion is needed to assess the Veteran's disability level for the period from April 1, 2014, through April 27, 2016. See Chotta v. Peake, 22 Vet. App. 80, 85 (2008) (holding that "if a disability rating cannot be awarded based on the available evidence, the Board must determine if a medical opinion is necessary to make a decision on the claim," and that "may include obtaining a retrospective medical opinion."). Here, the Board finds that a remand to the AOJ is required as it is unable to adequately address the issue without an additional medical opinion which addresses these noted deficiencies. The Board may not make its own medical determinations. Colvin v. Derwinski, 1 Vet. App. 171 (1991). Pursuant to 38 U.S.C. § 7112, this matter is to be afforded expeditious treatment. The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician to address the disability level of the Veteran's chondromalacia, left knee status post meniscectomy with instability (left knee disability) for the period from April 1, 2014, through April 27, 2016, which is prior to the Veteran's total left knee replacement surgery. Additional physical examination of the Veteran is not required unless indicated by the examiner. The examiner is directed to review the Veteran's entire file, including this ENTIRE REMAND, in conjunction with authoring the opinions requested herein. After review of the Veteran's file the examiner should address the following: The Board acknowledges that this is a retrospective medical opinion covering the identified period. The examiner should describe the nature and severity of all manifestations of the Veteran's left knee disability for the identified period. In this regard, the examiner is specifically asked to address and state any functional loss experienced by the Veteran, to include pain experienced and/or additional loss of motion, (1) after repetitive use over time, and (2) during flare-ups. The examiner is asked to provide a rationale for each opinion requested and/or expressed. If any requested opinion cannot be provided without resorting to mere speculation, then the examiner should explain why. Before an examiner can conclude that such estimates cannot be provided without resorting to speculation, the examiner must elicit and consider information regarding functional loss during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017). If the examiner is unable to complete any of these requirements, he or she should explain why. A complete opinion for each issue, either positive or negative, must include rationale that is based on a full history of the Veteran's condition, including, but not limited to, his lay statements and testimony, as well as that contained within other relevant medical records. The examiner is advised that the Veteran is competent to report his symptoms and that such reports must be acknowledged and considered in formulating any opinion. If his reports are discounted, the examiner should provide a reason for doing so. 2. The Veteran has the right to submit additional evidence and argument. Kutscherousky v. West, 12 Vet. App. 369 (1999). 3. Readjudicate the appeal. 4. This matter is to be afforded expeditious treatment as required by 38 U.S.C. § 7112. J. TUNIS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Bannach, 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.