Citation Nr: 21030795 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 12-33 414A DATE: May 19, 2021 ORDER Entitlement to an initial compensable rating for scars as secondary to the service-connected disability of residuals of left medial meniscectomy with arthritis is denied. REMANDED Evaluation of left knee limitation of extension, rated as 40 percent disabling, is remanded. Evaluation of left knee medial meniscectomy with arthritis, rated as 10 percent disabling, is remanded. Evaluation of left knee instability, rated as 10 percent disabling, is remanded. FINDING OF FACT 1. The Veteran's has one left knee scar. 2. The Veteran's left knee scar is not deep (associated with underlying soft tissue damage), unstable (involving frequent loss of covering of skin over the scar), or painful. The scar does not cause limited motion, limitation of function of the affected part, or have any other effects. 3. The scar is no more than 10 cm long and .5 cm wide (5 square centimeters). CONCLUSION OF LAW The criteria for an initial compensable rating for scars as secondary to the service-connected disability of residuals of left medial meniscectomy with arthritis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Codes 7801-7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1978 to September 1979. The Veteran and his partner testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in February 2016. A transcript of the hearing is associated with the claims file. In April 2018, the Board restored a 10 percent rating for left knee medial meniscectomy with arthritis and denied entitlement to a disability rating more than 10 percent for this disability. The Board also awarded a 40 percent rating for left knee limitation of extension effective February 11, 2016 and denied entitlement to a rating more than 40 percent for this disability. Further, the Board awarded a 10 percent rating for left knee instability and denied entitlement to a disability more than 10 percent for this disability. The Board found a separate rating for a scar was not warranted. The Veteran appealed the Board's denial of these issues to the United States Court of Appeals for Veterans Claims (Court). In June 2019, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand (JMPR). An Order of the Court dated June 2019 granted the motion, vacated in part the Board's April 2018 decision, and remanded the case to the Board. The Board remanded the case to the Agency of Original Jurisdiction (AOJ) in November 2019. The AOJ subsequently granted service connection for the Veteran's left knee scar and assigned a noncompensable rating. The Veteran's case has been returned to the Board for further appellate proceedings. Additionally, the Board received a motion to withdrawal representation from Joseph R. Moore, Attorney at Law. See September 28, 2020 correspondence. After notifying Mr. Moore of the need for additional information, a subsequent motion that meets all regulatory requirements for withdrawal was received. See November 2020 Board letter and December 23, 2020 correspondence. The Board finds good cause for withdrawal and grants the motion to withdraw. The Veteran has acknowledged that he is not represented. See December 2, 2020 report of contact. 1. Entitlement to an initial compensable rating for scars as secondary to the service-connected disability of residuals of left medial meniscectomy with arthritis In an August 2020 rating decision, the Agency of Original Jurisdiction granted service connection effective January 17, 2008, with a noncompensable (zero percent) rating. Scars are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7800 through 7805. Diagnostic Code 7800 is not applicable to this case as it applies to scars of the head, face or neck. The rating criteria for scars were amended on August 30, 2002, October 23, 2008, and August 13, 2018. i. Scar rating criteria for the period on appeal prior to October 23, 2008 Under Diagnostic Code 7801, a 10 percent rating is warranted for a scar on other than the head, face, or neck, that is deep (associated with underlying soft tissue damage) or that causes limited motion with area or areas exceeding 6 square inches (39 sq. cm.). Under Diagnostic Code 7802, a maximum 10 percent rating is warranted if a scar on other than the head face or neck is superficial (not associated with soft tissue damage) and does not cause limited motion, affecting an area or areas of 144 square inches (929 sq. cm.) or greater. Under Diagnostic Code 7803, a superficial and unstable (involving frequent loss of covering of skin over the scar) scar may be assigned a maximum 10 percent rating. Under Diagnostic Code 7804, a scar that is superficial and painful on examination may be assigned a maximum 10 percent rating. Finally, under Diagnostic Code 7805, scars are rated according to limitation of function of the affected part. See 38 C.F.R. § 4.118 (2007). ii. Scar rating criteria since October 23, 2008 As part of the update that came into effect on October 23, 2008, Diagnostic Code 7803 was removed. VA published a final rule amending its regulations on skin disabilities, effective August 13, 2018. Diagnostic Codes 7800 and 7804 are the same since October 23, 2008. Between October 23, 2008 and August 13, 2018, Diagnostic Code 7801 provided disability ratings for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2017). In contrast, the amended Diagnostic Code 7801 contemplates burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2021). Since October 23, 2008, the criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square centimeters) but less than 12 square inches (77 square centimeters). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square centimeters) but less than 72 square inches (456 square centimeters). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square centimeters) but less than 144 square inches (929 square centimeters). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square centimeters) or greater. 38 C.F.R. § 4.118, Diagnostic 7801. Note (1) to the pre-August 2018 Diagnostic Code 7801 stated that a deep scar is one associated with underlying soft tissue damage. Between October 23, 2008 and August 13, 2018, Diagnostic Code 7802 provided rating criteria for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear. 38 C.F.R. § 4.118, Diagnostic 7802. The amended version is for burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, Diagnostic Code 7802 (2021). Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square centimeters) or greater. Since October 23, 2008, Diagnostic Code 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating is warranted for one or two scars that are unstable or painful. A 20 percent rating is warranted for three or four scars that are unstable or painful. A 30 percent rating is warranted for five or more scars that are unstable or painful. Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note (2) provides that if one or more scars are both unstable and painful, an additional 10 percent should be added to the evaluation based on the total number of unstable or painful scars. Note (3) states that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code, when applicable. 38 C.F.R. § 4.118, Diagnostic 7804. Between October 23, 2008 and August 13, 2018, Diagnostic Code 7805 provided that other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 under an appropriate Diagnostic Code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). The Board notes that this diagnostic code is largely unchanged under the new amendments apart from the replacement of the phrase "(including linear scars)" with "and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, or 7804." 38 C.F.R. § 4.118, Diagnostic Code 7805 (2021). iii. Evidence and Analysis The Veteran has a left knee scar from surgery in 1979. The Veteran does not contend, and the evidence does not reveal, the Veteran's left knee scar meets the requirements for a compensable rating. A review of the record does not reveal complaint or treatment related to the Veteran's scar, including during his hearing before the undersigned. To the contrary, the Veteran's scar has been noted to be well healed. See April 27, 2016 VA treatment record. The Veteran attended a VA knee examination in February 2010, and there was no mention of the Veteran's scar, including in the section of the report that contained the Veteran's complaints. The Veteran attended a VA knee examination in October 2016. The June 2019 Joint Motion for Partial Remand found the Board's reasons and bases related to the Veteran's scar rating to be deficient, to the extent it relied on the October 2016 examination, since it was inadequate. The JMPR does not identify inadequacies with the scar portion of the examination. The Board notes that on the leg and knee examination report that that examiner checked a box that indicated a right knee or left knee scar may be compensable. There was no explanation, but the examiner was directed to fill out a scar examination report. On the separate scar report, the examiner noted the Veteran's left knee scar was not painful or unstable, and did not impact the Veteran's ability to work. The examiner also noted the scar was approximately 8 cm by .3 cm. The Veteran attended another VA knee examination in December 2019. The examiner similarly found the Veteran's left knee scar was not painful or unstable. The examiner noted it was 10 cm, but did not specify the width. However, the examiner noted the combined width of the Veteran's left and right knee scars was .5 cm. A review of the Veteran's statements and the medical evidence of record does not reveal the Veteran's left knee scar is deep (associated with underlying soft tissue damage), causes limited motion, unstable (involving frequent loss of covering of skin over the scar), painful, causes limitation of function of the affected part, or have any other effects. Also, the scar is no more than 10 cm long and .5 cm wide (5 square centimeters), so it is not of a size that warrants a compensable rating. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a compensable rating for his service-connected left knee scar. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Board recognizes there may be outstanding medical records in the possession of Social Security Administration (SSA). However, the Veteran has denied that his scar is painful, or otherwise supports compensation, on multiple occasions. Similarly, the evidence does not indicate his scar impacts his ability to work. Therefore, the Board need not wait on additional records from SSA, which are expected to be irrelevant or duplicative of the Veteran's prior reporting, to deny the Veteran's claim. REASONS FOR REMAND 1. Evaluation of left knee limitation of extension, rated as 40 percent disabling, is remanded. 2. Evaluation of residuals of left knee medial meniscectomy with arthritis, rated as 10 percent disabling, is remanded. 3. Evaluation of left knee instability, rated as 10 percent disabling, is remanded. Upon review of the evidence of record, the Board finds remand is warranted to schedule an additional examination and obtain records in Federal custody. In compliance with the Board's November 2019 remand directives, the Veteran was scheduled for a knee examination to evaluate his disabilities. The December 2019 examination report does not contain a history of the Veteran's flare-ups since filing his claim or a retrospective opinion on the impact on the Veteran's flare-ups. The examiner merely noted the Veteran denied flare-ups. This does not specify whether the Veteran denied ever having flare-ups, that he no longer has flare-ups, or that he was not experiencing a flare-up during the examination. Moreover, the October 2016 examiner referred to painful flares documented during diagnostic imaging performed in conjunction with the examination. Additionally, during a February 2010 VA knee examination, the Veteran reported daily flare-ups. In other words, it is not clear that the December 2019 examiner has considered "all procurable and assembled data." See Jones v. Shinseki, 23 Vet. App. 382, 390 (2010). Furthermore, the JMPR expressly addresses flare-ups and the requirement to comply with relevant caselaw. See JMPR, pages 3-4 (discussing flare-ups and Sharp v. Shulkin, 29 Vet. App. 26 (2017)). Therefore, remand is warranted for an additional examination that will allow the Veteran to clarify his history of flare-ups and allow an examiner to provide a retrospective opinion on the impact of flare-ups, even if they no longer exist. Additionally, a recent change in VA regulation may affect the evaluation of the Veteran's disabilities, particularly with regard to instability. Finally, remand is warranted to seek potentially outstanding and relevant records in Federal custody. The Veteran is or was in receipt of Social Security Administration (SSA) disability benefits during the pendency of his appeal. VA last sought records from SSA in June 2013. After SSA finds a claimant is disabled, it must evaluate a claimant's impairments from time to time to determine if the claimant is still eligible for disability cash benefits. See 20 C.F.R. § 404.1589. The frequency of these reviews varies from six months to seven years and require claimants to provide updated medical records and possibly submit to a medical examination by an SSA consultative examiner. See 20 C.F.R. §§ 404.1590(d) (frequency) and 404.1593 (medical records and examination). After obtaining such records and possible examination, SSA issues a Cessation or Continuance of Disability or Blindness Determination and Transmittal, which is subject to appeal to an Administrative Law Judge. See 20 C.F.R. §§ 404.1597 and 404.1597a. At the time SSA found the Veteran disabled, a periodic review was set for February 2015, more than a year after VA last received records from SSA. See records received from SSA in July 2013 (receipt date of June 27, 2014 in electronic claims file), page 4. Accordingly, the record appears incomplete and such evidence may support the Veteran's claims as SSA considers all impairments in determining disability. Furthermore, the Board acknowledges that these records are from a Federal facility and that VA has an increased obligation in regard to obtaining records in the custody of a Federal department or agency. See 38 C.F.R. § 3.159(c)(2). The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period since August 11, 2020. 2. Obtain the Veteran's federal records from Social Security Administration. Document all requests for information as well as all responses in the claims file. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disabilities under the rating criteria, to include the February 2021 update to the criteria. In so doing, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement 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) or a deficiency in the record (additional facts are required). This is not limited to recent flare-ups. The examiner should elicit the historical symptomology of the Veteran's alleged flare-ups. If there has been changes in the severity, frequency, duration or symptoms associated with flare-ups, these should be documented, and the examiner should explain whether, how and when these historical changes has impacted the degree of functional loss during flare-ups. 4. In re-adjudicating the Veteran's claims, the Agency of Original Jurisdiction should expressly address whether a separate rating under Diagnostic Code 5828 is warranted. See June 2019 JMPR. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Gregory T. Shannon, 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.