Citation Nr: 21032811 Decision Date: 05/28/21 Archive Date: 05/28/21 DOCKET NO. 15-37 174 DATE: May 28, 2021 ORDER . Entitlement to an initial compensable disability rating for the service-connected residual scar of the right knee meniscus repair is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD) is remanded. Entitlement to an initial disability rating in excess of 20 percent prior to February 26, 2020, for the service-connected degenerative joint disease and meniscus repair of the right knee (lateral instability) is remanded. Entitlement to an increased disability rating in excess of 30 percent since February 26, 2020, for the service-connected degenerative joint disease and meniscus repair of the right knee (lateral instability) is remanded. Entitlement to an initial disability rating in excess of 10 percent prior to January 1, 2021, for the service-connected degenerative joint disease and meniscus repair of the right knee (painful, limited flexion) is remanded. Whether the reduction in the evaluation of the service-connected degenerative joint disease and meniscus repair of the right knee (lateral instability) from 30 percent to 20 percent, effective from January 1, 2021, was proper and, if so, whether the 20 percent evaluation assigned was proper is remanded. Whether the reduction in the evaluation of the service-connected degenerative joint disease and meniscus repair of the right knee (painful, limited flexion) from 10 percent to 0 percent, effective from January 1, 2021, was proper and, if so, whether the 0 percent evaluation assigned was proper is remanded. Entitlement to an initial disability rating in excess of 10 percent for the service-connected right knee instability is remanded. Entitlement to an initial compensable disability rating for the service-connected degenerative joint disease and meniscus repair of the right knee (painful, limited extension) is remanded. FINDING OF FACT The Veteran's residual scar from a right knee meniscus repair is not shown to be painful or unstable, measures less than 144 sq. in. (929 sq. cm.) and does not limit function. CONCLUSION OF LAW The criteria for an initial compensable disability rating for the service-connected residual scar of the right knee meniscus repair have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.118, Diagnostic Code 7800-7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1970 to April 1972. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In June 2019, the Board remanded the issues of entitlement to service connection for an acquired psychiatric disorder, to include PTSD and entitlement to an initial disability rating in excess of 20 percent for the service-connected degenerative joint disease and meniscus repair of the right knee (lateral instability). Thereafter, a June 2020 rating decision assigned a 30 percent rating for the service-connected degenerative joint disease and meniscus repair (lateral instability), effective from February 26, 2020. In addition, the RO also granted service connection and assigned separate 10, 0, and 0 disability ratings for painful, limited flexion of the right knee, painful, limited extension of the right knee, and residual scar of the right knee meniscus repair, all effective from February 26, 2020. A supplemental statement of the case (SSOC) was issued in June 2020 addressing the right knee ratings assigned and the claim for service connection for an acquired psychiatric disorder, to include PTSD. Per a July 2020 rating decision, the RO determined that the June 2020 rating decision committed a clear and unmistakable error (CUE) in assigning the 30 percent evaluation for the right knee lateral instability, which was based on severe instability, and determined that based on the examination findings of the Veteran's meniscal disability, painful motion, and slight instability, the knee condition should have been rated as 20 percent for the meniscal condition (with painful motion used to support that evaluation), a separate 10 percent evaluation for instability, and a 0 percent evaluation for limitation of flexion of the knee. An October 2020 rating decision reduced the ratings for the right knee from 30 percent to 20 percent for degenerative joint disease and meniscus repair, claimed as right knee condition (lateral instability); and from 10 percent to 0 percent for degenerative joint disease and meniscus repair, claimed as right knee condition (painful, limited flexion), both effective from January 1, 2021. In addition, the RO granted service connection for instability of the right knee and assigned a separate 10 percent disability rating, effective from January 1, 2021. An October 2020 SSOC was issued addressing the right knee ratings assigned and the claim for service connection for an acquired psychiatric disorder, to include PTSD. The Board notes that a claim stemming from a rating reduction action is a claim for restoration of the prior rating and, typically, does not also contemplate a claim for an increased rating. See Peyton v. Derwinski, 1 Vet. App. 282, 286 (1991); Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). However, in this case, the RO issued a supplemental statement of the case (SSOC) specifically addressing the 20 percent (degenerative joint disease and meniscus repair, claimed as right knee condition (lateral instability)) and 0 percent (degenerative joint disease and meniscus repair, claimed as right knee condition (painful, limited flexion)) reduced evaluations and finding that higher ratings were not warranted. Accordingly, the Veteran's appeal before the Board includes both the propriety of the rating reductions and claims for increased ratings. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7107(a)(2). 1. Entitlement to an initial compensable disability rating for the service-connected residual scar of the right knee meniscus repair is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may also experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts founda practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. In the June 2020 rating decisions, the RO granted service connections for residual scar of the right knee meniscus repair and assigned a noncompensable evaluation, effective February 26, 2020 under 38 C.F.R. § 4.118, Diagnostic Code 7802. The Veteran contends that a compensable rating is warranted for his scar. Diagnostic Codes 7800 through 7805 provide the criteria to assign disability ratings for scars. Diagnostic Code 7800 specifically applies to scars of the head, face, and neck. Diagnostic Code 7801 governs scars involving areas other than the head, face, or neck that are deep and nonlinear and provides for a 10 percent evaluation when the area or areas exceed six sq. inches (39 sq. cm.). A 20 percent evaluation is assigned when the area or areas exceed 12 sq. inches (77 sq. cm.). Note 1 provides that a deep scar is one associated with underlying soft tissue damage. Diagnostic Code 7802 applies to burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear. Under this provision, a maximum schedular evaluation of 10 percent is warranted for scars with an area or areas of 144 sq. inches (929 sq. cm.) or greater. Note 1 provides that a superficial scar is one not associated with underlying soft tissue damage. Pursuant to Diagnostic Code 7804 for rating scars that are unstable or painful, a 10 percent rating is assigned for one or two scars that are unstable or painful, a 20 percent rating is assigned for three or more scars that are unstable or painful, and a 30 percent rating is assigned for five or more scars that are unstable or painful. Note (1) to Diagnostic Code 7804 provides 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, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) provides 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 Code 7805 applies to other scars (including linear scars) and other effects of scars evaluated under Diagnostic Codes 7800, 7801, 7802 and 7804. Any disabling effects not considered in a rating provided under Diagnostic Codes 7800 through 7804 should be evaluated under an appropriate diagnostic code. The Veteran underwent VA knee examination in February 2020. At that time, the examiner observed a scar located in the lateral posterior portion of the right knee. The scar measured 0.5 centimeters in length and 0.5 centimeters in width. However, the examiner reported that that the scar was not painful or unstable and did not have a total area equal to or greater than 39 square centimeters or are located on the head, face or neck. Based on review of the evidence, the Board finds that an initial compensable rating is not warranted for the Veteran's right knee scar at any time during the period on appeal. More specifically, the scar was not reported as deep and nonlinear and did not exceed six sq. inches (39 sq. cm.), or to cause any limited motion; thus, a higher rating is not warranted under either Diagnostic Code 7801 or 7805. An initial 10 percent rating is also not warranted under Diagnostic Code 7802 as this scar does not have an area or areas of 144 square inches (929 sq. cm.) or greater. Moreover, a compensable rating is not warranted under Diagnostic Code 7804 pertaining to superficial and unstable scars as the scar was not reported as painful or unstable. In sum, the Board finds that an initial compensable disability rating is not warranted for the Veteran's service-connected residual right knee meniscus repair scar for the entire period under consideration. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD is remanded. Per the June 2019 Board remand, the Board instructed that the Veteran undergo VA psychiatric examination and the examiner was to identify all psychiatric disorders found to be present and provide an opinion for psychiatric disorders other than PTSD and personality disorders. The Veteran underwent VA PTSD examination in March 2020 and the examiner diagnosed PTSD without any additional mental disorder diagnoses. However, the examiner provided a positive opinion that major depressive disorder is proximately due to or the result of the service-connected PTSD. The Board notes that the Veteran is not service-connected for PTSD and the examiner did not diagnose major depressive disorder upon examination. Further, the Board notes that VA treatment records dated January 2020 do show diagnoses of anxiety and depression. In light of the above, the Board finds that the Veteran should be scheduled for a new VA psychiatric examination to clarify his psychiatric diagnoses and an opinion should be obtained. 2. Entitlement to an initial disability rating in excess of 20 percent prior to February 26, 2020 for the service-connected degenerative joint disease and meniscus repair of the right knee (lateral instability) is remanded. 3. Entitlement to an increased disability rating in excess of 30 percent since February 26, 2020 for the service-connected degenerative joint disease and meniscus repair of the right knee (lateral instability) is remanded. 4. Entitlement to an initial disability rating in excess of 10 percent prior to January 1, 2021 for the service-connected degenerative joint disease and meniscus repair of the right knee (painful, limited flexion) is remanded. 5. Whether the reduction in the evaluation of the service-connected degenerative joint disease and meniscus repair of the right knee (lateral instability) from 30 percent to 20 percent, effective from January 1, 2021 was proper and, if so, whether the 20 percent evaluation assigned was proper is remanded. 6. Whether the reduction in the evaluation of the service-connected degenerative joint disease and meniscus repair of the right knee (painful, limited flexion) from 10 percent to 0 percent, effective from January 1, 2021 was proper and, if so, whether the 0 percent evaluation assigned was proper is remanded. 7. Entitlement to an initial disability rating in excess of 10 percent for the service-connected right knee instability is remanded. 8. Entitlement to an initial compensable disability rating for the service-connected degenerative joint disease and meniscus repair of the right knee (painful, limited extension) is remanded. Regarding the increased rating claims for the Veteran's right knee disabilities, during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. Given the above, and the procedural history of this case, the Board finds that the Veteran should be afforded a new knee examination to both determine the current severity and manifestations of his service-connected right knee disabilities and which will provide the necessary information to determine whether the old or new regulations will be more favorable to the appellant for the period February 7, 2021, to the present. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5257); see also Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003). Updated treatment records should also be obtained upon remand. The matters are REMANDED for the following actions: 1. Ask the Veteran to provide the names and addresses of all medical care providers who have recently treated him for his claimed disabilities. After securing any necessary releases, the AOJ should request any relevant records identified. In addition, obtain updated VA treatment records. If any requested records are unavailable, the Veteran and his representative should be notified of such. 2. After records development is completed, schedule the Veteran for a VA psychiatric examination to determine the nature of the claimed psychiatric disabilities and to obtain an opinion as to whether such are possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should: Identify all psychiatric disorders (other than PTSD and personality disorders) found to be present. The examiner should reconcile his/her findings with the VA treatment records noting diagnoses of anxiety and depression. For psychiatric disorders diagnosed on examination (other than PTSD and personality disorders), the examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that such psychiatric disorder had its onset during service or is otherwise related to service. Please explain why or why not. If not related to service, is it at least as likely as not (50 percent probability or greater) that any psychiatric condition was caused by the service-connected bilateral hearing loss, right knee disability, left knee disability, and/or tinnitus? Please explain why or why not. If not caused by the service-connected bilateral hearing loss, right knee disability, left knee disability, and/or tinnitus, is it at least as likely as not that the Veteran's psychiatric condition is worsened beyond natural progression (aggravated) by his service-connected bilateral hearing loss, right knee disability, left knee disability, and/or tinnitus? Please explain why or why not. A rationale for all opinions offered is requested as the Board is precluded from making any medical findings. Aggravation is defined as any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease. The examiner is advised that a finding that a claimed disability was aggravated beyond the normal progression due to a service-connected disability does not require evidence of permanent worsening and may encompass any additional impairment in earning capacity resulting from an already service-connected condition. 3. Schedule the Veteran for VA knee examination with an appropriate clinician regarding the severity and manifestations of his service-connected right knee disabilities. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. All symptomatology associated with the right knee should be reported. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's right knee disabilities under the rating criteria in effect prior to February 7, 2021, and the rating criteria in effect thereafter, to include the severity of any instability. 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 and following repeated use over time. 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), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Clearly elicit from the appellant the extent of his reported knee instability and the functional impairment associated with said instability. Clearly identify any and all assistive devices used by the Veteran throughout the appeal and ascertain from the Veteran whether any such devices were prescribed by a treating clinician. Comment upon whether the Veteran has suffered from the below, or symptomatology/disability equivalent to the below: Recurrent subluxation or instability: Unrepaired or failed repair of complete ligament tear causing persistent instability (*) Sprain, incomplete ligament tear, or repaired complete ligament tear causing persistent instability, and a medical provider prescribes a brace and/or assistive device (e.g., cane(s), crutch(es), walker) for ambulation. (*) Unrepaired or failed repair of complete ligament tear causing persistent instability, and a medical provider prescribes either an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation (*) Sprain, incomplete ligament tear, or complete ligament tear (repaired, unrepaired, or failed repair) causing persistent instability, without a prescription from a medical provider for an assistive device (e.g., cane(s), crutch(es), walker) or bracing for ambulation Patellar 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 (*) Note, for patellar instability, the patellofemoral complex consists of the quadriceps tendon, the patella, and the patellar tendon. (*) Note, A surgical procedure that does not involve repair of one or more patellofemoral components that contribute to the underlying instability shall not qualify as surgical repair for patellar instability (including, but not limited to, arthroscopy to remove loose bodies and joint aspiration). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Medina, 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.