Citation Nr: 21039931 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 15-46 516 DATE: July 1, 2021 ORDER A rating of 10 percent but no higher, for the period on appeal for the service-connected scar disability of the left hand is granted. REMANDED Entitlement to service connection for bilateral knee condition is remanded. FINDING OF FACT 1. The Veteran is right hand dominant. 2. At the December 2018 Board hearing, the Veteran testified that he experiences pain in his hand every day due to his scar from the laceration to the palm of the left hand, and that the pain had worsened. CONCLUSION OF LAW The criteria for an initial compensable rating of 10 percent but no higher, prior to March 9, 2021, for the service-connected scar disability of the left hand have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.118, Diagnostic Code 7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the U.S. Navy from August 1987 to October 1992. The Veteran's increased rating claim was previously denied in a May 2019 Board decision, which the Veteran appealed to the Court of Appeals for Veterans Claims (Court). In April 2020, the Court set aside the May 2019 Board decision pertaining to the Veteran's left hand disability claim and remanded such claim for action consistent with the terms of the joint motion for partial remand (JMPR). The Board remanded the Veteran's bilateral knee claim in that May 2019 decision, so that issue was not subject to the Court's order. During the pendency of the appeal, the AOJ granted an increased rating of 10 percent for the laceration to the palm of the left hand effective March 9, 2021. A.B. v. Brown, 6 Vet. App. 35 (1993). During the pendency of the appeal, the AOJ granted a separate evaluation for left ulnar nerve partial excision with left wrist/hand neuropathy. Furthermore, in accordance with the JMPR, the Board in an October 2020 decision considered the nerve damage of the left hand and granted a 30 percent evaluation. This decision is final and the issue of nerve damage is no longer before the Board. The Veteran testified before the undersigned at a hearing held in December 2018; a transcript of that hearing is of record. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. If there is disagreement with the initial rating assigned following a grant of service connection, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Increased Rating for Scars The RO initially granted service connection for the Veteran's left hand scar in an October 2012 rating decision. At that time a noncompensable rating was assigned under Diagnostic Code 7805. During the pendency of the appeal, the AOJ changed the Diagnostic Code to 7804 and granted an increased rating of 10 percent for the laceration to the palm of the left hand effective March 9, 2021. As such, the questions are whether a compensable evaluation is warranted prior to March 9, 2021 and whether an evaluation in excess of 20 percent is warranted from March 9, 2021. A.B. v. Brown, 6 Vet. App. 35 (1993). Effective August 13, 2018, VA revised the criteria for the evaluation of skin disabilities. 83 Fed. Reg. 32,592-601 (July 13, 2018). 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. However, DCs 7804 and 7805 were not changed by the amendments. Diagnostic Code 7801 provides ratings for 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. Id. Diagnostic Code 7802 provides ratings 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 and provides for a maximum 10 percent rating. Id. Under the scar regulations in effect prior to August 13, 2018, DC 7801 provided for a 10 percent rating for burn scars or scars due to other causes, not of the head, face, or neck that are deep and nonlinear with an area or areas exceeding 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.); a 20 percent rating for such scars with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.); a 30 percent rating for such scars with an area or areas of at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.); and a 40 percent rating for such scars with an area or areas of at least 144 square inches (929 sq. cm.) or greater. A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7801, Note (1). DC 7802 provided for a 10 percent rating for burn scars or scars due to other causes, not of the head, face, or neck that are superficial and nonlinear with an area or areas of 144 square inches (929 sq. cm.) or greater. A superficial scar is one not associated with underlying soft tissue damage. 38 C.F.R. § 4.118, DC 7802, Note (1). DC 7804 provided for a 10 percent disability rating for one or two scars that are unstable or painful, a 20 percent disability rating for three or four scars that are unstable or painful, and a 30 percent rating for five or more scars that are unstable or painful. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118, DC 7804, Note (1). If one or more scars are both unstable and painful, an additional 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118, DC 7804, Note (2). DC 7805 provided that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under DCs 7800-04 under an appropriate DC. After August 13, 2018, the title of DC 7801 was changed to clarify that it applied to burn scars or scars due to other causes, not of the head, face, or neck, that are associated with underlying soft tissue damage. The area or areas of damage required for 10, 20, 30, and 40 percent ratings remain unchanged. The title of DC 7802 was changed to clarify that it applied to burn scars or scars due to other causes, not of the head, face, or neck, that are not associated with underlying soft tissue damage, but the rating criteria remained unchanged. Notes (1) and (2) were changed in DCs 7801 and 7802. Note (1) provides that, for the purposes of DCs 7801 and 7802, the six (6) zones of the body are defined as each extremity, anterior trunk, and posterior trunk, and the midaxillary line divides the anterior trunk from the posterior trunk. Note (2) provides that a separate evaluation may be assigned for each affected zone of the body under this diagnostic code if there are multiple scars, or a single scar, affecting multiple zones of the body, combine the separate evaluations under §4.25, or alternatively, if a higher evaluation would result from adding the areas affected from multiple zones of the body, a single evaluation may also be assigned under this diagnostic code. No changes were made to the rating criteria under DC 7804. DC 7805 provides that other scars (not otherwise considered under the DCs 7800-7804) are to be rated according to their disabling effects under an appropriate diagnostic code. According to Diagnostic Code 7804, which was not revised, a 10 percent rating is assignable for one or two scars that are unstable or painful. A 20 percent rating is assignable for three or four scars that are unstable or painful. A 30 percent rating is assignable for five or more scars that are unstable and 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. Id. Diagnostic Code 7805 underwent non-substantive changes and instructs that any disabling effects not considered in a rating under Diagnostic Codes 7800-7804 should be rated under an appropriate diagnostic code. Id. An initial compensable rating in excess of 10 percent The Veteran contends that he is due an increased rating for his left hand laceration scar due to pain and instability. The Veteran currently has a noncompensable evaluation prior to March 9, 2021 and a 10 percent rating for a service-related scar under Diagnostic Code 7804 from March 9, 2021. Parties to the Court's April 2020 JMPR agreed that the Board in its May 2019 decision should have addressed whether worsening reported at the Board 2018 hearing warranted a new examination. When the issue returned to the Board, in its October 2020 decision, the Board remanded the issue for a new VA examination. The resulting March 2021 VA examination found the scar was painful, but not unstable. Based on this finding, the RO granted an increased rating from 0 to 10 percent effective the date of the finding, the examination date, March 9. 2021. The Veteran was afforded a VA examination of the hand in June 2012. The examiner diagnosed a laceration to the palm of the left hand. The Veteran reported that he lacerated his palm during service when he fell on a bottle. He indicated he is right hand dominant. The Veteran described flare ups where the hand aches/stings on the outer edge with cold weather. While he can continue activities, he tries to get in out of the cold. There was no evidence of limited motion or painful motion of the fingers or thumbs. Repetitive testing was conducted and there was no additional limitation of motion. There was no functional loss or functional impairment of any of the fingers or thumbs. There was no pain to palpation for joints or soft tissue of either hand. Hand grip was 5/5. There was no ankylosis. There was a scar but it was described as not painful or unstable or having an area greater than 39 square cm (6 square inches). The functional impact was that he has to work outside in winter and cold weather increases symptoms and is hindered due to having to bundle up his hand. At the December 2018 Board hearing, the Veteran said, "I drive a semi, and when I'm holding onto the steering wheel, my hand falls asleep." He said that his left hand scar moves; it is getting worse; hand falls asleep and causes pain every day; pain throughout entire hand; whole hand will fall asleep from the wrist down; gloves are not helping after using them for almost a month. He said, "it's getting progressively worse." He further reported that the scar hurts a little but is not terrible. Another examination was held in August 2019. The examiner diagnosed laceration of palm of the hand status post repair and partial ulnar nerve excision. The Veteran described the incident in service where he tried to stop a comrade who was holding a knife and sustained a laceration. He went to a private hand surgeon for repair. He indicated that the surgeon removed a nerve in his hand and he described residual numbness and tingling pain in the hands and fingers and the condition has gotten progressively worse. The examiner noted scars but indicated they were not painful or unstable, or had a total area equal to or greater than 39 square cm (6 square inches). Then scar was on the palm of the left hand and measured 7 centimeters length and 0.1 cm width. The Veteran was afforded a VA medical examination in March 2021. The examiner, a medical professional, obtained an accurate history and listened to the Veteran's assertions. The examiner provided the Board with sufficient information to rate the Veteran's disability. Therefore, the Board finds that the examination is adequate and contains sufficient information to decide the issues on appeal. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). VA examination in March 2021 indicated that the Veteran has a linear scar measuring 6.5 centimeters by 0.1 centimeter on the palm of his left hand. The scar was noted by the VA examiner to be painful but stable. The left hand palm scar was noted as being painful with the following description: "tender to palpation feels like "needles and burning sensation" Also feels tugging sensation with stretching hand out fully." An initial compensable rating of 10 percent but no higher, prior to March 9, 2021, is granted. Although the 2012 and 2019 examinations did not check the box to indicate the scar was painful, the Veteran provided competent and credible testimony that the scar of the hand was painful. This is further supported by the subjective history of flare ups of the scar during cold weather. Accordingly, resolving all doubt in the Veteran's favor, a 10 percent disability rating due to left hand laceration scar pain, is granted. However, an evaluation in excess of 10 percent is not warranted at any time. As noted above, DC 7804 defines "an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar." The exam notes that the Veteran's left palm scar is "stable over the last 12 months, painful to push on it, and it "tugs" when stretched out. As the Veteran's scar is not of the head, face, or neck, Diagnostic Code 7800 does not apply. As the Veteran's scar is linear Diagnostic Code 7801 is inapplicable. As a 10 percent rating is the maximum schedular rating under Diagnostic Code 7802, a higher rating is not possible under that diagnostic code. As a preponderance of the evidence reflects that the Veteran's left had laceration scar is painful but not unstable, a rating in excess of 10 percent is not warranted under Diagnostic Code 7804. Finally, the evidence does not reflect that the Veteran's scar has any other disabling effects; therefore, a rating is not warranted under Diagnostic Code 7805. Based on the forgoing, the Board finds that a preponderance of the evidence is against a rating in excess of 10 percent at any time during the appeal period for the Veteran's service-related left hand palm scar, and the benefit of the doubt doctrine does not apply. REASONS FOR REMAND Entitlement to service connection for bilateral knee condition is remanded. The Veteran contends that he is entitled to service connection for his bilateral knee disability, because the problem started in service. In May 2019, the Board remanded the Veteran's bilateral knee claim for additional development. The claim has since been returned to the Board for further appellate action. As part of the development, the Veteran was afforded a VA knee examination in January 2020. The VA examiner opined that the claimed condition was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale the examiner provided the following explanation: Review of the Veteran's c-file showed 5/14/1991 clinic note assessment-left knee overuse syndrome and 7/30/1992 Injury report right knee pain Impression-injury to medial collateral ligament tear. 7/10/2014 bilateral knee x-ray Impression-minimal degenerative change in the patellofemoral compartment of the right knee and remote posttraumatic changes with tricompartmental osteoarthritis. The records were further silent for knee complaints until after a 1994 motorcycle crash in which the Veteran sustained trauma to the left knee requiring surgery. The left knee complaint during service is separate and unrelated to the motorcycle crash post service. The Veteran's current left knee conditions are related to the post service motorcycle crash. The Veteran's current right knee condition is a separate condition from the 1992 in-service right knee injury. The records were further silent for continued care and treatment of a right knee condition. There is a gap and no evidence of chronicity of care. The minimal degenerative changes noted on x-ray is likely related to advanced age or the Veteran's occupation as a truck driver. A nexus has not been established. In other words, the examiner based the opinion, in part on the absence of evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (noting that the absence of contemporaneous medical documentation may go to the credibility and weight of Veteran's lay testimony, but the lack of such evidence does not, in and of itself, render the lay testimony incredible). At the Board hearing in December 2018, the Vet said he self-medicates with Naproxen and that he has received care in the past from a VA Dr. M. who tried cortisone and synovial fluid injections into the Veteran's knees, but neither had much benefit, so he did not continue. The Veteran also said that he goes to Roudebush for his knees but irregularly, because he was told there isn't much they can do without surgery, and he is too young for surgery. Because the 2020 examiner did not discuss the Veteran's explanation for sparseness of professional medical care since service or his self-medicating, the opinion is inadequate for rating purposes. For these reasons, the issue is remanded to the RO for another nexus opinion and to give the Veteran a chance to clarify and submit documents to the file showing what care and treatment he got since service for his bilateral knee disability, to include treatment records from Dr. M, and Roudebush. The matter is REMANDED for the following action: 1. Obtain and associate with the Veteran's claims file all outstanding VA treatment records since service, October 1992 to December 2013, documenting treatment for the Veteran's left or right knee, especially treatment records from Dr. M or Roudebush. Also please contact the Veteran or his representative and ask if the Veteran had any treatment outside of VA during that timeframe which is not part of the file. If so ask him to provide copies of treatment records or complete and return release forms and request copies of said documents and add those to the file. If any of the records requested remain unavailable, clearly document the claims file to that effect and notify the Veteran of any inability to obtain these records, in accordance with 38 C.F.R. § 3.159 (e). 2. After all available records have been associated with the claims file, forward the claims file to an appropriate examiner to determine the nature, onset, and likely etiology of any knee disabilities. The claims folder should be made available and reviewed by the examiner. A VA examination should be scheduled with the Veteran only if the examiner or Veteran feels it is necessary. All indicated studies should be performed. After reviewing the claims file, the examiner should offer the following opinion: (Continued on the next page) Is at least as likely as not (i.e. 50 percent or greater probability) that the Veteran's left or right knee disabilities had onset directly during service, or are otherwise causally related to any event or circumstance of the Veteran's active service? The examiner should discuss the Veteran's statements that he has been self-medicating with over-the-counter Naproxen, that treatments with cortisone and synovial were tried but were less effective, and because he was told the next treatment option would involve surgery and he is too young, he has not sought additional professional medical treatment. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. H. SEESEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Black, 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.