Citation Nr: 21030412 Decision Date: 05/18/21 Archive Date: 05/18/21 DOCKET NO. 16-36 970 DATE: May 18, 2021 ORDER Entitlement to an initial compensable rating for a left knee scar is denied. Entitlement to service connection for a right knee disability is denied. Entitlement to service connection for a left knee disability is denied. FINDINGS OF FACT 1. The Veteran's left knee scar measures 4.5 cm in length and 1.0 centimeters in width for a total of 4.5 sq. cm. 2. The preponderance of the evidence is against finding that a right knee disability began during active service, or is otherwise related to an in-service injury or disease. 3. The preponderance of the evidence is against finding that a left knee disability began during active service, or is otherwise related to an in-service injury or disease. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for a left knee scar have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7802. 2. The criteria for service connection for a right knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for service connection for a left knee disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 2001 to January 2003. This matter comes before the Board of Veterans' Appeals on appeal from an August 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This appeal returns to the Board of Veterans' Appeals (Board) after a January 2020 Board decision remanding for further development of the issues listed above. The Board finds substantial compliance with the January 2020 Board remand instructions. Initial Rating Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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 are sufficient. A coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The rating of the same disability under various diagnoses is prohibited. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). Different ratings may be assigned for separate periods of time if distinct periods are shown by the competent evidence of record during the pendency of the appeal that warrants different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When a law or regulation changes after a claim has been filed, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant applies. Marcoux v. Brown, 9 Vet. App. 289 (1996); VAOPGCPREC 11-97 (Mar. 24, 1997), VAOPGCPREC 3-2000 (April 10, 2000). Accordingly, the disability must be rated according to both the old and new rating criteria, and a veteran must receive the benefit of the more favorable rating schedule. If a veteran is granted a higher rating under the newer version, the earliest effective date is the date the new version took effect. 1. Entitlement to an initial compensable rating for a left knee scar The Veteran contends that he is entitled to a compensable rating for his service-connected left knee scar. During this appeal, the law pertaining to evaluating scars was changed effective August 13, 2018. As such, the Veteran's service connected scar will be considered under both the old and the new rating criteria. Prior to August 13, 2018, an evaluation of 10 percent is warranted if the scar is deep and nonlinear with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.); or, the scar is superficial and nonlinear with an area or areas of 144 square inches (929 sq. cm.) or greater. Effective August 13, 2018, under the new criteria, an evaluation of 10 percent is warranted if the scar is 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.); or, the scar is not associated with underlying soft tissue damage with an area or areas of 144 square inches (929 sq. cm.) or greater. Diagnostic Code 7804 allows a compensable rating if there is at least one scar that is painful or unstable. Turning to the evidence of record, the Veteran was afforded a VA examination in August 2015 at which time the examiner noted that the Veteran had a scar on his left knee. The scar was not painful. The scar was superficial and non-linear. The scar measured 4.5 cm by 1.0 cm. with an approximate total area of 4.5 square centimeters. The scar was not deep or unstable. The examiner reported that the Veteran did not exhibit any functional impairment due to his left knee scar. The VA examiner indicated that the left knee scar does not impact the Veteran's ability to work. Following the January 2020 Board Remand, the Veteran was afforded a VA examination of his scar in August 2020. The examiner found Veteran's left knee scar to be 4.5 cm long and 1.0 centimeters wide, covering a total of 4.5 sq. cm. The examiner noted that the scar is not painful, is stable without frequent loss of covering of skin over the scar, is not due to a burn. The examiner noted underlying soft tissue damage to the scar. The examiner also noted that there are no other pertinent physical findings, conditions, signs, and/or symptoms associated with the scar. The Board finds no evidence of record counter to the August 2015 and August 2020 VA examiners' findings. The Board finds the VA examination findings are probative on the issue. The evidence does not support the assignment of a compensable rating under Diagnostic Code 7802. The Board reviewed other diagnostic codes and finds none applicable that would grant a compensable initial disability rating. Based on the foregoing, the Board finds that the preponderance of the evidence is against a granting a compensable initial disability rating for the Veteran's left knee scar. The reasonable doubt doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107(b). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). Whether lay evidence is competent and sufficient in a particular case is an issue of fact and that lay evidence can be competent and sufficient to establish a diagnosis when (1) a layperson is competent to identify the medical condition (sometimes the layperson will be competent to identify the condition where the condition is simple, for example a broken leg, and sometimes not, for example, a form of cancer), (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board has authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence. Madden v. Gober, 125 F.3d 1477 (Fed. Cir. 1997). VA may favor one medical opinion over another provided that VA offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429 (1995). 1. Entitlement to service connection for left and right (bilateral) knee disabilities. The Veteran was seen for a complaint of bilateral knee pain while in service. The Veteran reported suffered hard landing in jump school in February 2002. The record indicates the Veteran was seen in April 2002 for complaints of bilateral knee pain due to hard landing and the pain is aggravated with running and ruck marching. The assessment found the Veteran's knees to be negative for swelling, edema, ecchymosis, and contusions. Popping was noted in the left knee on the lateral inferior part of the knee. Positive slight tenderness to palpation on lateral and medial sides of the patella. Based on these facts, the Veteran was diagnosed with an overuse injury. In late May 2002, the Veteran was seen a second time in service for his knees. The Veteran denied trauma to his knees. Again, he reported the hard landing during jump school. The Veteran's knees were assessed with no findings of contusions or effusion. All other tests were negative. The Veteran's was found to have full range of motion with muscle strength being 5/5 for both lower extremities. The Veteran was again diagnosed with overuse injury, the diagnosis being patella tendonitis. The Veteran was assigned conservative measures and told to follow up if pain continued. There is no further evidence of knee issues in service or follow ups. There is a 13-year gap between the Veteran's service and filing for service connection in January 2015. The Veteran underwent an August 2015 VA examination for left knee scar. The VA examiner found full range of motion for the left knee. At an October 2015 VA consultation, the Veteran reported engaging in hiking and walking activities. The October 2015 examination found full range of motion and full strength in both lower extremities. The examiner noted that the Veteran is overweight and assessed knee pain. The Veteran declined further intervention at the time. At a January 2016 pulmonary clinic consult the Veteran denied joint pain except in the knees when the weather is humid. At June 2016 private examination, the Veteran reported increased numbness/tingling on prolonged standing after approximately 45 minutes. He reported having popping in the left patella as well as grinding sensation bilaterally in the patella with repetitive flexion/extension. The Veteran reported stiffness with prolonged flexion and/or extension. He also reported noticing spider veins in both knees following a February 2002 parachuting accident. The private examiner found left and right knee flexion and extension with normal limits with muscle strength to be even and normal bilaterally. The examiner found decreased patellar gliding (no indication of which knee(s)). The private physician opined that the Veteran's bilateral knee pain appears to be related to bilateral patellar tendinitis. The Veteran noted that this is the same diagnosis as he received in May 2002 in while on active duty. The Veteran underwent a physical therapy evaluation of his knees in September 2016. The therapist found gait within normal limits, no swelling, redness, or sign of infection throughout knees. Range of motion and strength were noted to be within normal limits. The lack of impairment was discussed with the Veteran and noted during examination of bilateral knee discomfort. Pes planus was noted during the examination and a trial of foot orthotics was suggested. No other findings were noted on the examination. The examiner suspected a psychomotor component to Veteran's widespread pain complaints. An April 2017 progress note noted knees to be non-swollen and non-tender. The Veteran was afforded a VA examination of his knees in August 2020. The examiner conducted a complete review of the Veteran's record, noting all complaints and diagnoses relating to the Veteran's knees. The examiner noted a diagnosis of patellar tendonitis in May 2002 and 2015. The examiner noted that the Veteran reported that his left knee pain started in 2014 and has since resolved itself as the Veteran denied any left knee pain. The Veteran reported that the right knee is still bothersome at times and was seen by VA in June 2018 for this issue. See January 2018 VA Record (Finding extremities to be normal with no edema and neurological assessment to be within normal limits). The Veteran reported that his right knee pain is aggravated by humidity, stepping up such as into a truck, or standing on a ladder for more than 10 minutes. The examiner noted that the Veteran is currently not going any treatment for either knee. At the examination, the Veteran did not report any flare-ups. The Veteran reported that he has functional loss to his right knee, that he cannot bend it without tightness. The examiner found the Veteran's right and left knee ranges of motion to be 0 to 130 degrees from flexion to extension. This was noted as abnormal but not contributing to any functional loss. The examiner noted pain on flexion of the right knee causing functional loss. No pain was noted on the left knee. The examiner identified tenderness to palpation of the superior anterior patella, lateral of the right knee with a severity of 1/10. The examiner noted this is directly related to the claimed right knee condition. The examiner noted objective evidence of crepitus of both the left and right knee. He also noted no pain on weight bearing for either knee. The examiner noted that the Veteran is not being examined immediately after repetitive use over time. The examiner observed repetitive use and noted no additional loss of function or range of motion in either knee. He noted that the examination is neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner noted that pain, weakness, fatigability, and incoordination do not significantly limit functional ability with repeated use over time for either knee. Muscle strength for flexion and extension was noted as 5/5 with no atrophy in either extremity. No ankylosis was found during the examination. No history of recurrent subluxation, lateral instability, or recurrent effusion was found or reported. Joint stability testing for both knees. All findings were normal and the examiner found no instability in either knee. The examiner noted that the Veteran does not currently have, nor has he ever had a history of recurrent patellar dislocation, "shin splints" (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial or fibular impairments. No meniscal conditions were found to exist and there was no evidence or history of surgical procedures for either knee. The Veteran was not noted to have any scars related to the diagnosed conditions. The examiner noted that the Veteran's service-connected left knee scar is unrelated to the musculoskeletal diagnoses for the knee examination and is addressed on the corresponding scar examination. The Veteran does not report using any assistive devices as a normal mode of locomotion. Imaging studies were found to be normal with no signs of degenerative or traumatic arthritis. See also August 2020 Radiology Report. The VA examiner noted no additional contributing factors for the Veteran's knees. Based on these findings, the August 2020 examiner opined that the Veteran's knee disorder for both his left and right knees is less likely than not incurred in or caused by the claimed in-service injury, event or illness. The examiner's rationale identified that there is no evidence of chronicity of care on which to base a nexus. The examiner found the Veteran's in-service injury to be acute only. The examiner opined that the 13-year gap in treatment supported the diagnosis of an acute injury. Therefore, the examiner provided a negative opinion for service connection. Based on the above, the Board finds the August 2020 examiner's medical nexus opinion to be probative because it addresses the pertinent medical evidence and Veteran's lay statements. As such, the Board finds the element of a positive nexus opinion is not met. The Board has considered the Veteran's lay statements, including his indication that that the 2015 diagnosis is the same as his 2002 in-service diagnosis. While the Veteran is competent to testify to thing such as pain at the same location, he does not possess the medical training and expertise to link diagnosis for complex conditions such as tendonitis, overuse injury (or differentiation between the two). Such medical determination and whether it is acute or chronic in nature as medically defined requires medical trained with the expertise the Veteran does not possess. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, the Veteran's lay statements and opinion are accounted for but are not competent under Jandreau. For the foregoing reasons, the Board finds that the preponderance of the evidence is against a grant of service connection for either the Veteran's left or right knee disabilities. The benefit of the doubt rule does not apply in this case. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 U.S.C. § 5107(b). Therefore, the appeal as to both knees must be denied. The Board notes the February 5, 2021 rating criteria change for various musculoskeletal issues, including the knees. These changes apply only to rating the severity of a disability and not to service connection elements. Therefore, the change is immaterial to the determination of service connection of the Veteran's knees in this appeal. Katherine Kiemle Buckley Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.