Citation Nr: 21028093 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 09-07 646 DATE: May 10, 2021 ORDER The claim of entitlement to a rating in excess of 10 percent for a right knee scar is denied. REMANDED The claim of entitlement to service connection for a back disability, to include as secondary to service-connected disabilities is remanded. The claim of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities, is remanded. The claim of entitlement to a rating in excess of 10 percent for limitation of motion of the right knee is remanded. The claim of entitlement to a rating in excess of 10 percent for instability of the right knee is remanded. The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDING OF FACT Throughout the appellate period, the Veteran's right knee scar manifested with pain, tenderness, and itching, but did not cover an area of at least 144 square inches, and it was not found to be unstable. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for a right knee scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the United States Army from November 1974 to December 1976 and was discharged under honorable conditions. The instant matter is on appeal from June 2008 and September 2013 rating decisions. This case has a significant procedural history. More recently, in February 2019, the Veteran testified before the undersigned in a Travel Board hearing. A transcript of the proceedings has been associated with the record. In September 2019, the Board remanded these issues for additional evidentiary development. A subsequent June 2020 rating decision granted entitlement to service connection for a left knee disability. As this is a full grant of benefits sought on appeal, that issue is no longer before the Board. 1. The claim of entitlement to a rating in excess of 10 percent for a right knee scar The Veteran contends that he is entitled to a rating in excess of 10 percent for a right knee scar. Disability ratings are determined by application of a ratings schedule which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, pyramiding, which is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14; see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In a claim for a greater original rating after an initial award of service connection, all of the evidence submitted in support of the Veteran's claim is to be considered. In initial rating cases, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2. VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending and, consequently, staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Disabilities must be reviewed in relation to their entire history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Functional loss may be due to pain if supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Functional impairment may be due to pain, including during flare-ups, or from repetitive use. Mitchell v. Shinseki, 25 Vet. App. 32, 43-44 (2011). In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the veteran. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Board determinations with respect to the weight and credibility of evidence are factual determinations going to the probative value of the evidence. Layno v. Brown, 6 Vet. App. 465, 469 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno, 6 Vet. App. at 465. Lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.159; see Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a 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. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim on appeal. The Veteran's right knee scar is rated under Diagnostic Code 7804 for painful or unstable scars. Under this Diagnostic Code, one or two scars that are unstable or painful entitles a claimant to a 10 percent rating. Three or four scars that are unstable or painful warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. Note (1) describes an unstable scar as one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) affords an additional 10 percent to the evaluation for a scar if such is both unstable and painful. The medical evidence of record reflects a scar measuring approximately 12 centimeters by 0.8 centimeters in October 2016. A February 2020 VA examination noted a history of "itchiness" at the site of the scar, but no report of pain on examination. The scar was found to be neither painful nor unstable at that time. It measured 12 centimeters by 0.5 centimeters with a total approximate area of six centimeters squared. It did not have underlying tissue damage, nor was it elevated or depressed. No abnormal pigmentation was noted on examination. The scar did not cause any limitation of function. The Veteran has subjectively reported pain associated with the scar. In his February 2019 hearing before the undersigned, he reported that the scar was painful and tender. VA treatment records throughout this period do not reflect more severe symptomatology associated with his right knee scar. After a thorough review of the medical and lay evidence of record, the Board finds that a 10 percent rating is appropriate for the Veteran's right knee scar. While medical evidence of record through this period has not documented pain associated with the scar, the Veteran is competent to report subjective symptoms, such as pain, associated with a disability. In this case, his subjective reports of pain at the scar site are competent and highly probative. He has not endorsed more severe symptomatology, including instability of the scar, which might warrant a higher rating, nor has such been found on examination. As a result, a 10 percent rating is appropriate under Diagnostic Code 7804. The Board has considered whether other Diagnostic Codes may afford a more favorable rating for the Veteran. In the present case, this right knee scar does not meet the area requirements for a higher evaluation, nor does it exhibit underlying soft tissue damage. The Veteran has not asserted, nor does the medical evidence support, a finding that the scar causes functional impairment. Accordingly, other Diagnostic Codes are not for application in this case. In sum, the Veteran's right knee scar exhibits pain, tenderness, and itchiness. As the preponderance of the evidence of record fails to establish entitlement to a higher rating, the rule regarding reasonable doubt is not for application. A rating in excess of 10 percent must be denied. REASONS FOR REMAND 1. The claim of entitlement to service connection for a back disability, to include as secondary to service-connected disabilities is remanded. While there has been a significant appellate period in this case, and the Board sincerely regrets adding additional delay, remand is again necessary in order to obtain an adequate medical opinion with respect to the etiology of the Veteran's back disability. Despite the Board's previous remand, the February 2020 examination and May 2020 addendum do not address the Veteran's assertion that his service-connected bilateral knee disability caused him to fall and repeatedly injure his back. The opinion and addendum are inadequate for adjudicative purposes, and remand is necessary to obtain a sufficient nexus opinion. 2. The claim of entitlement to service connection for an acquired psychiatric disorder, to include as secondary to service-connected disabilities is remanded. Similarly, remand is necessary to obtain an adequate medical opinion with regard to the Veteran's acquired psychiatric disorder. The May 2020 addendum opinion, as well as the previous February 2020 examination does not provide a sufficient rationale for their conclusions. The Veteran has asserted that his post-service acquired psychiatric disorder caused or contributed to his substance abuse, but the examiner does not address this. Instead, the examiner attributes the Veteran's diagnosed disability to "poor life choices" and regret. This is insufficient, and remand is necessary to obtain and adequate medical opinion. 3. The claim of entitlement to a rating in excess of 10 percent for limitation of motion of the right knee is remanded. Unfortunately, the Veteran's right knee disability, manifested by both limitation of motion and instability, must also be remanded for a new examination. While the October 2016 examination was able to estimate additional loss of range of motion after repetitive use and during flare ups, the February 2020 examination determined that such was not possible without resorting to speculation. In stating that the Veteran's records did not contain "usable/contributory information" about his disability, the examination appears to overlook the October 2016 findings, and it does not address why there is a discrepancy in range of motion estimations. With respect to instability, the Veteran has asserted that his right knee gives way, which causes him to repeatedly fall. His VA treatment records note a history of several falls, some causing injury. The source of these falls, however, remains unclear. While the Veteran attributes these to his unstable knee, the October 2016 peripheral nerve examination noted neurological symptoms in the right lower extremity that may be related to his back disability, which is presently in remand status. Clarification is needed regarding the severity of the Veteran's right knee instability throughout the appellate period before the Board may assign a rating. Furthermore, effective February 7, 2021, the rating criteria for knee instability changed, and a medical opinion is needed in order to determine the most appropriate rating for the Veteran's knee instability under these new criteria. Accordingly, remand is necessary in order to obtain a more thorough examination of the Veteran's right knee disability. 4. The claim of entitlement to a rating in excess of 10 percent for instability of the right knee is remanded. See argument in remand Section 3. 5. The claim of entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is remanded. As the Veteran is asserting entitlement to TDIU, the Board finds that this issue is inextricably intertwined with the resolution of the remanded issues. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer the claim on appeal pending the adjudication of the inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, this issue is remanded for readjudication following evidentiary development. The matters are REMANDED for the following action: 1. Obtain any new, relevant, and outstanding VA treatment records that are not already associated with the claims file. If no records are available, the claims folder must indicate this fact and the Veteran should be notified in accordance with 38 C.F.R. § 3.159 (e). All attempts to contact the Veteran should be documented in the record. 2. Once the aforementioned evidentiary development is complete, schedule the Veteran for a VA examination with a new examiner, if possible, to determine the nature and severity of his right knee disability. A complete copy of the claims file must be made available to the examiner. The examiner should take a thorough history of observable symptomatology from the Veteran. The examiner must consider the Veteran's lay statements regarding observable symptomatology associated with his right knee disability. After a thorough review of the medical and lay evidence of record is complete, the examiner should discuss the following: (a.) Describe the current nature and severity of the Veteran's right knee disability, including any and all diagnoses pertaining to his right knee. Indicate whether any new diagnosis is a progression of his service-connected disabilities. (b.) Assess both active and passive range of motion, as well as range of motion on weight-bearing and non-weight bearing. These ranges of motion must also be assessed for the Veteran's left knee. If possible, estimate range of motion after repetitive use and during flare ups based upon observations in the examination and the Veteran's lay reports of symptoms. (c.) If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment 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). With this explanation, please address why such an estimation was possible in the October 2016 examination. (d.) Discuss the Veteran's instability of the right knee, to include conducting relevant testing. Indicate whether the Veteran's documented falls are at least as likely as not the result of his knee instability. (e.) If possible, provide a retrospective assessment of the severity of his right knee instability since February 2012. (f.) Since February 2021, indicate whether any identified instability or subluxation is the result of: An unrepaired or failed repair of a complete ligament tear causing persistent instability; A sprain, incomplete ligament tear, or repaired ligament tear causing persistent instability; An unrepaired or failed repair of complete ligament tear causing persistent instability; A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for a brace and either a cane or a walker; A diagnosed condition involving the patellofemoral complex with recurrent instability after surgical repair that requires a prescription by a medical provider for one of the following: A brace, cane, or walker; A diagnosed condition involving the patellofemoral complex with recurrent instability (with or without history of surgical repair) that does not require a prescription from a medical provider for a brace, cane, or walker; or, If the Veteran's assistive devices were prescribed by a medical provider. (g.) Discuss the functional limitation, if any, of the Veteran's right knee disability with consideration of the Veteran's lay statements regarding his experienced limitations due to symptomatology. (h.) If possible, provide a retrospective opinion regarding limitations due to repetitive use and flare ups since February 2012 based on the Veteran's lay statements of experienced symptomatology. The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 3. Once the aforementioned evidentiary development is complete, obtain a medical opinion regarding the etiology of the Veteran's back disability from a new examiner, if possible. An examination may be ordered if deemed necessary, and may be conducted via telehealth or other electronic means if pandemic restrictions remain in place. The examiner should review the entire claims file, including a copy of this remand. The examiner must consider the Veteran's lay reports of observable symptomatology. After a thorough review of the record is complete, the examiner must respond to the following: (a.) Is it at least as likely as not (50 percent or greater probability) that the Veteran's back disability had its onset during active duty service, or is otherwise related to his service? Please address service treatment records documenting back pain. (b.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran's back disability was caused by service-connected disabilities? Please specifically address his contention that his knee disability caused him to fall and injure his back. (c.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran's back disability was aggravated (any incremental increase in disability or any additional impairment of earning capacity regardless of permanence) by his service-connected disabilities? The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 4. Once the aforementioned development is complete, obtain a medical opinion from a new examiner, if possible, to address the etiology of the Veteran's acquired psychiatric disorder. An examination may be ordered if deemed necessary, and may be conducted via telehealth or other electronic means if pandemic restrictions remain in place. The examiner should conduct a thorough review of the Veteran's claims file, to include previous psychiatric examinations of record. After this review of the record, the examiner should discuss the following: (a.) Based upon the medical and lay evidence of record, is there clear and unmistakable evidence (such that reasonable minds could not differ) that an acquired psychiatric disorder preexisted service? Please address the Veteran's report of preexisting nervous trouble, as well as his statements describing a pre-service history of fighting and school suspension. In this response, please also address his reports of receipt of multiple nonjudicial punishments and conflicts with his superior officer during service as described in the October 2016 examination. (b.) If you determine that any acquired psychiatric disorder clearly and unmistakably preexisted service, was the disability clearly and unmistakably not aggravated (i.e., not permanently worsened beyond the natural progression of the disease) during service? (c.) If it is found that there is clear and unmistakable evidence that the Veteran's acquired psychiatric disorder existed prior to service AND that there is clear and unmistakable evidence that the condition was not aggravated by service, please clearly indicate the basis/evidence supporting your conclusions. (d.) If, however, you do not find that there is clear and unmistakable evidence that the Veteran's acquired psychiatric disorder preexisted military service OR that any pre-existing condition was not aggravated in service, you must take as conclusive fact that the Veteran's acquired psychiatric disorder did not exist prior to service. Note: The term "clear and unmistakable" means that the evidence is undebatable. To contrast, the term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it (e.) After presuming such, please then opine as to whether it is at least as likely as not (i.e. a probability of 50 percent or more) that the Veteran's acquired psychiatric disorder had its onset during active service or within one year of separation from service, or, otherwise resulted from active military service? (f.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder was caused by his service-connected disabilities? In this response, please address the Veteran's contention that his acquired psychiatric disorder or his service-connected disabilities caused or contributed to his substance abuse. (g.) If not, is it at least as likely as not (50 percent or greater probability) that the Veteran's acquired psychiatric disorder was aggravated by his service-connected disabilities? (h.) If aggravation of the acquired psychiatric disorder is found to have occurred as a result of a service-connected disability, state if there is medical evidence created prior to the aggravation, or at any time between the onset of aggravation and the current level of disability that shows a baseline for the acquired psychiatric disorder prior to aggravation. Note: The term "aggravation" in the above context refers to a permanent worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. (Continued on the next page) The examination report should specifically state that a review of the record was conducted. The examiner should provide a complete rationale for all opinions provided. If an opinion cannot be provided without to resorting to mere speculation, the examiner should identify all medical and lay evidence considered in this conclusion, fully explain why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. 5. Following completion of the foregoing, the AOJ should review the record and readjudicate the claims on appeal. If any remain denied, the AOJ should issue an appropriate supplemental SOC, afford the Veteran and his representative an opportunity to respond, and return the case to the Board. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.