Citation Nr: 21030693 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 11-29 922 DATE: May 19, 2021 ORDER Entitlement to a compensable disability rating for right knee scars is denied. REMANDED Entitlement to a disability rating greater than 10 percent for chronic left knee strain is remanded. Entitlement to a disability rating greater than 10 percent for right knee osteoarthritis is remanded. Entitlement to increased ratings for bilateral pes planus with calcaneal spurs, evaluated as 10 percent disabling for each foot prior to August 9, 2017, and as 30 percent disabling for both feet since August 9, 2017, is remanded. Entitlement to a compensable disability rating for hallux valgus of the left foot is remanded. Entitlement to a compensable disability rating for hallux valgus of the right foot is remanded. Entitlement to a disability rating greater than 10 percent for incomplete paralysis of the sciatic nerve of the left lower extremity is remanded. Entitlement to a disability rating greater than 10 percent for incomplete paralysis of the sciatic nerve of the right lower extremity is remanded. Entitlement to a disability rating greater than 20 percent for degenerative joint disease of the cervical spine is remanded. Entitlement to an initial rating greater than 20 percent prior to August 15, 2011, and as 40 percent thereafter, for chronic low back pain with spondylosis and degenerative disc disease is remanded. Entitlement to an initial rating greater than 10 percent prior to August 15, 2011, and greater than 60 percent thereafter, for bowel dysfunction is remanded. Entitlement to an initial rating greater than 20 percent prior to August 9, 2017, and greater than 40 percent thereafter, for bladder dysfunction is remanded. FINDING OF FACT The record evidence shows that the Veteran's 1.5 square centimeter scars are not of the head, face, or neck, are not burn scars, and are neither painful nor unstable. CONCLUSION OF LAW The criteria for a compensable disability rating for right knee scars have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.118, Diagnostic Codes (DCs) 7800-7805 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2006 and February 2010 Rating Decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In the February 2006 Rating Decision, the RO denied the Veteran's claims for entitlement to increased ratings for his service-connected right knee residuals, left knee disability, hypertension, and bilateral foot disabilities. In a November 2006 Rating Decision, issued in response to the Veteran's Notice of Disagreement with the February 2006 decision, the RO recharacterized the Veteran's foot disabilities as "pes planus with hallux valgus and calcaneal spurs of the right and left feet," and assigned 10 percent ratings for each foot. Although the RO did not initially take further action with respect to the Veteran's Notice of Disagreement and these increased rating claims (a Statement of the Case was not issued), these claims have remained on appeal since the initial denial of his claims for increase in February 2006. See AB v. Brown, 6 Vet. App. 35, 38- 39 (1993). In the February 2010 Rating Decision, the RO denied the Veteran's claims of entitlement to increased ratings for his service-connected incomplete paralysis of the sciatic nerve, right and left lower extremities, as well as his cervical and lumbar spine disorders. In an October 2011 Rating Decision issued in response to another Notice of Disagreement, the RO granted entitlement to service connection for bowel dysfunction and bladder dysfunction as secondary to his service-connected low back disorder. While the Veteran's November 2011 VA Form 9 was accepted as a Notice of Disagreement with respect to the initial ratings assigned for bowel dysfunction and bladder dysfunction, there was no Statement of the Case or substantive appeal for those issues. Nevertheless, the Board took jurisdiction of those issues at the December 2013 videoconference hearing described below and in the subsequent May 2014 Remand. As such, they are also still currently on appeal. See Percy v. Shinseki, 23 Vet. App. 37 (2009); see also Archbold v. Brown, 9 Vet. App. 124 (1996) The Veteran's representative testified before a Veterans Law Judge (VLJ) at a videoconference hearing in December 2013. A transcript of that hearing has been associated with the claims file. In an April 2016 correspondence, the Board notified the Veteran that the VLJ who conducted his December 2013 hearing was unavailable. The correspondence advised him of the opportunity to provide testimony at another Board hearing. As the Veteran did not respond to the correspondence, the Board will presume that the Veteran does not want another hearing and will proceed with the appeal. See 38 C.F.R. § 20.704 (2019). In an August 2017 Rating Decision, the RO recharacterized the Veteran's service-connected "pes planus with hallux valgus and left calcaneal spur" and "pes planus with hallux valgus and right calcaneal spur" (which were both separately rated as 10 percent disabling) as "bilateral pes planus with calcaneal spurs" and assigned a single 30 percent rating for both feet combined effective August 9, 2017. In the same decision, the RO assigned separate, noncompensable evaluations for "hallux valgus, left foot" and "hallux valgus, right foot," also effective August 9, 2017. The issue adjudicated in this decision previously was before the Board in March 2017, at which time it was remanded in order to obtain additional treatment records as well as the Veteran's VA Veteran Readiness and Employment (VR&E) file. VA treatment records were obtained and associated with the record in April 2017, July 2017, September 2018, and August 2019. The Veteran's VR&E file was associated with the record in January 2018. Thus, with respect to the issue adjudicated in this decision, the Board finds that there has been substantial compliance with its March 2017 remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a remand request is required). Additionally, the Board acknowledges that its previous March 2017 Remand also addressed the issue of entitlement to a disability rating greater than 10 percent for hypertension. The Board instructed the RO to issue a Statement of the Case on this claim. Pursuant to the Board's Remand, a Statement of the Case was sent to the Veteran in April 2017. He did not file a timely substantive appeal. As such, this issue is no longer within the Board's jurisdiction. Increased Rating for Right Knee Scars The Veteran seeks entitlement to a compensable rating for right knee scars. During the pendency of this appeal, the applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were substantively amended. When regulations are revised during the course of an appeal, the Board is generally required to consider the claim in light of both the former and revised schedular criteria and to apply the regulation more favorable to the Veteran. The new rating criteria, however, may be applied only prospectively from the effective date of the change forward, unless the regulatory change specifically permits retroactive application. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The Board has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). Thus, the Board has considered all applicable criteria in evaluating the Veteran's claim. Effective August 13, 2018, VA again amended its regulations governing skin disabilities. VA's intent is that 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. 83 Fed. Reg. 32592 (July 13, 2018). Here, the Veteran was initially service connected for status post right knee lateral compression release with residuals under DCs 5299-5260, which encompassed both limitation of the motion of the right knee as well as scarring of the right knee. In October 2004, the Veteran indicated that he sought entitlement to service connection for post-surgical scars of the right knee, which was interpreted as a claim of entitlement to a separate rating. The RO eventually granted entitlement to a separate evaluation for right knee scars in an August 2019 Rating Decision and assigned a noncompensable evaluation effective March 16, 2002 (the date service connection was first established for the right knee disability). At the time of the Veteran's October 2004 claim, the most recent VA examination detailing his scar symptomatology was conducted in March 2002. That examination revealed two well-healed, pale-appearing, linear scars, measuring 1 centimeter on the right knee joint, without surface elevation, depression, adherence, underlying tissue loss, tenderness, disfigurement, keloid formation, or limitation of function. The Veteran was next provided with a VA examination in January 2010. That examination revealed three small scars on the right knee. These scars were superficial, linear scars measuring 1 centimeter by 0.2 centimeter. The scars were not painful on examination. There was no evidence of skin breakdown. underlying tissue damage, inflammation, edema, keloid formation, disfigurement, limitation of motion, or limitation of function. The Veteran was next provided with a VA examination in September 2011. That examination revealed a scar on the lateral right knee. This was a superficial, linear scar measuring 1 centimeter by 0.1 centimeter. The scar was not painful on examination. There was no evidence of skin breakdown. underlying tissue damage, inflammation, edema, keloid formation, or disfigurement. However, the examiner indicated that the scar was productive of limitation of motion and limitation of function, in that it limited bending. However, the examiner did not express any additional limitation in terms of degrees. Later in the examination, range of motion testing revealed right knee flexion to 45 degrees and extension to zero degrees; however, the examiner did not indicate whether this limited motion was due to right knee osteoarthritis alone, right knee scarring alone, or some combination of the two disabilities. The Veteran was provided with a VA scars examination in February 2015, at which time he was diagnosed as having an anterior right knee scar secondary to arthroscopic surgery. That examination revealed a small, well-healed, almost invisible scar on the right knee. Specifically, the examiner noted a scar measuring 1 centimeter on the anterior right knee, just below the patella, which was healed, stable, painless, and non-tender. That scar was neither painful nor unstable. There were no burn scars perceived. The scar did not result in limitation of function or impact the Veteran's ability to work. Most recently, the Veteran was provided with a VA Scars/Disfigurement examination in August 2017, at which time he was diagnosed as having a right knee scars, status post surgery. That examination revealed three superficial linear scars: a 0.5-centimeter scar on the superolateral right knee, a 0.5-centimeter scar on the inferolateral right knee, and a second 0.5-centimeter scar on the inferolateral right knee. The approximate total area of these scars was 1.5 square centimeters. These scars were neither painful nor unstable. There were no burn scars perceived. The scars did not result in limitation of function or impact the Veteran's ability to work. There has been no evidence added to the record since the August 2017 VA Scars/Disfigurement examination indicating that the Veteran's right knee scars had worsened in severity. After review of the competent and probative evidence, the Board finds that a compensable disability rating is not warranted for the service-connected right knee scars at any time during the period on appeal. His total scar area is no greater than 1.5 square centimeters (resolving reasonable doubt in favor of the Veteran and taking the larger reported square centimeter documentation from the August 2017 examination). The Veteran's scars are not of the head, face, or neck, and thus a compensable rating pursuant to DC 7800 (under both the old and current criteria) is not warranted. As the Veteran does not exhibit scars of at least six square inches, a rating under DC 7801 is not warranted. A compensable rating under DC 7802 is also not warranted as the Veteran does not have scars of at least 144 square inches. The Veteran's scars are neither unstable nor painful. Thus, ratings under DC 7804 (under both the old and current criteria), and/or the previous DC 7803, are not warranted. The Board acknowledges that the September 2011 examiner indicated that the Veteran's right knee scar was productive of limitation of motion and limitation of function, in that it limited bending. However, the examiner did not specify if the scar limited right knee motion and/or function beyond the limited motion caused by his service-connected right knee arthritis. Moreover, all other VA examiners, both prior to and since the September 2011 examination, indicated that the Veteran's right knee scars did not limit function. The Board emphasizes that the Veteran is already service-connected for right knee osteoarthritis under DC 5260 based on limitation of right knee flexion. The evaluation of the same "disability" or the same "manifestations" under various diagnoses is prohibited. 38 C.F.R. § 4.14 (2017). A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993). As such, awarding a compensable disability rating for the Veteran's right knee scar based on limitation of knee flexion would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to a compensable disability rating for his service-connected right knee scars. Based on the foregoing, the Board finds that the criteria for a compensable disability rating for the service-connected right knee scars have not been met. REASONS FOR REMAND The Veteran also seeks increased ratings for bilateral knee disabilities, bilateral pes planus with calcaneal spurs, hallux valgus of the bilateral feet, incomplete paralysis of the sciatic nerves of the bilateral lower extremities, degenerative joint disease of the cervical spine, chronic low back pain with spondylosis and degenerative disc disease, bowel dysfunction, and bladder dysfunction. Having reviewed the record evidence, and although the Board is reluctant to contribute to "the hamster-wheel reputation of Veterans law" by remanding these claims again, additional development is required before the underlying claims can be adjudicated on the merits. Cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (finding that repeated remands "perpetuate the hamster-wheel reputation of Veterans law"). With respect to all of these disabilities, the Veteran last was provided with VA examinations in August 2017, approximately four years ago. VA treatment records added to the record since that time suggest that the symptomatology has worsened with respect to these disabilities. While it had been established previously that the Veteran walked with a slow, deliberate gait afflicting both his left side and right side, the Back (Thoracolumbar Spine) Conditions examination, Neck (Cervical Spine) Conditions examination, Knee and Lower Leg Conditions examination, and Foot Conditions examination conducted in August 2017 all indicated that he did not use any assistive devices as a normal mode of locomotion. An August 2019 VA Social Work Evaluation & Management (E&M) note indicated that the Veteran now ambulated with the assistance of a cane and expressed his wish to become more physically and socially active although he was limited due to chronic pain related to his service-connected disabilities. A September 2019 VA addendum note indicated that the Veteran described overall worsening lumbar spine pain with a recent increase in bowel/bladder urgency. In response, the VA staff physician indicated that new magnetic resonance imaging (MRI) of the lumbar spine would be obtained. This evidence suggests a worsening of the Veteran's musculoskeletal symptomology as well as his associated bowel and bladder symptomatology since the most recent August 2017 VA examinations. The Court has held that when a Veteran alleges that his service-connected disability has worsened since he was examined previously, a new examination may be required to evaluate the current degree of impairment. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Given the length of time which has elapsed since his most recent VA examinations in August 2017, the Board finds that, on remand, he should be scheduled for updated VA examinations to determine the current severity of these disabilities. The AOJ also should obtain the Veteran's updated treatment records. The matters are REMANDED for the following action: 1. Conduct any appropriate development to obtain the Veteran's updated treatment records. 2. Schedule the Veteran for appropriate examination to determine the current nature and severity of his service-connected bilateral knee disabilities. 3. Schedule the Veteran for appropriate examination to determine the current nature and severity of his service-connected bilateral foot disabilities. 4. Schedule the Veteran for appropriate examination to determine the current nature and severity of his service-connected bilateral lower extremity disabilities. 5. Schedule the Veteran for appropriate examination to determine the current nature and severity of his service-connected lumbar spine disabilities. 6. Schedule the Veteran for appropriate examination to determine the current nature and severity of his service-connected cervical spine disabilities. 7. Schedule the Veteran for appropriate examination to determine the current nature and severity of his service-connected bowel dysfunction. 8. Schedule the Veteran for appropriate examination to determine the current nature and severity of his service-connected bladder dysfunction. 9. Thereafter, readjudicate the appeal. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Anthony M. Flamini 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.