Citation Nr: 21054537 Decision Date: 09/02/21 Archive Date: 09/02/21 DOCKET NO. 17-31 863 DATE: September 2, 2021 ORDER Entitlement to a rating in excess of 20 percent for status post patellectomy, left knee, resection of neuroma, with saphenous neuropathy, prior to July 15, 2013, is denied. Entitlement to a rating in excess of 10 percent for left knee surgical scars since July 15, 2013 is denied. Entitlement to a compensable rating for left leg saphenous neuropathy since July 15, 2013 is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, claimed as post-traumatic stress disorder (PTSD), is remanded. Entitlement to service connection for fibromyalgia is remanded. Entitlement to service connection for a low back disability is remanded. Entitlement to service connection for a right knee disability is remanded. Entitlement to a higher rating for left knee instability under Diagnostic Code 5257, rated as 10 percent disabling since July 15, 2013, is remanded. Entitlement to a higher rating for left knee limitation of flexion under Diagnostic Code 5260, rated as 10 percent disabling from March 25, 2015 to May 4, 2015 and noncompensable thereafter, is remanded. Entitlement to a higher rating for left knee limitation of extension under Diagnostic Code 5261, rated as 10 percent disabling from July 15, 2013 to March 24, 2015; 40 percent disabling from March 25, 2015 to May 4, 2015; and 10 percent disabling thereafter, is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. There is no competent evidence that makes it factually ascertainable that the Veteran experienced a definitive increase in his service-connected left knee disability in the one-year period prior to his July 15, 2013 increased rating claim for the disability. 2. The Veteran's two left knee surgical scars are painful, but the preponderance of evidence is against a finding that they involve an area of at least 39 square centimeters, have been unstable, or have resulted in any disabling effects, other than pain, at any point in the appeal period. 3. The preponderance of evidence is against a finding that the Veteran has had severe neuritis of the internal saphenous nerve or a higher level of impairment at any point in the appeal period. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for status post patellectomy, left knee, resection of neuroma, with saphenous neuropathy, prior to July 15, 2013, have not been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.71a, 4.118, 4.124a. 2. The criteria for a rating in excess of 10 percent for a left knee scar since July 15, 2013 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.118, Diagnostic Codes 7800-05. 3. The criteria for a compensable rating for left leg saphenous neuropathy since July 15, 2013 have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a., Diagnostic Code 8627. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2014 rating decision. The Veteran appeared at a hearing before the undersigned in November 2019. In February 2020, the Board remanded the issues on appeal for further development, which will be discussed in more detail, as relevant, below. 1. Entitlement to a rating in excess of 20 percent for status post patellectomy, left knee, resection of neuroma, with saphenous neuropathy, prior to July 15, 2013, is denied. The March 2014 rating decision that led to the present appeal adjudicated the Veteran's July 15, 2013 increased rating claim for his service-connected left knee disability. While the disability was previously rated solely under 38 C.F.R. § 4.71a, Diagnostic Code 5257, relating to recurrent subluxation or instability, separate ratings are now assigned under Diagnostic Codes 5257 (instability), 5260 (limitation of flexion), 7005 (scar), and 8627 (saphenous neuropathy) for various aspects of the disability, representing an increase in compensation for the disability. The effective date for an award of increased compensation is generally the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Yet, if an increase in disability is factually ascertainable within one year prior to the receipt of the claim for increased compensation, the rating will be effective as of the date of increase; however, if the increase occurred more than one year prior to receipt of the claim, the increase will be effective on the date of claim. 38 U.S.C. § 5110(b); 38 C.F.R. § 3.400(o); see also Harper v. Brown, 10 Vet. App. 125 (1997); VAOPGCPREC 12- 98 (1998). In making this determination, VA must consider all evidence of record, including that received prior to previous final decisions. See Hazan v. Gober, 10 Vet. App. 511 (1997). Here, there is no competent evidence that makes it factually ascertainable that the Veteran experienced a definitive increase in his service-connected left knee disability in the one-year period prior to his July 15, 2013 increased rating claim for the disability. There are no treatment records documenting an increase in left knee disability in the one-year period prior to the Veteran's July 15, 2013 increased rating claim. In February 2020, the Board remanded the Veteran's claim so the AOJ could provide him assistance with obtaining any records that may be available from a private provider, Dr. S., who was referenced in a July 2013 letter written by a VA provider, R.R., M.D. The AOJ sent the Veteran two development letters after the Board's remand soliciting a release to obtain any records that may be available for Dr. S., but the Veteran has not submitted the necessary releases or requested further VA assistance in the development of private treatment records. The Veteran has also not reported experiencing a definitive increase in disability in the one-year period prior to his July 15, 2013 increased rating claim. As a result, the provisions of 38 C.F.R. § 3.400(o) are not for application in the context of the Veteran's appeal. Accordingly, a rating in excess of 20 percent for status post patellectomy, left knee, resection of neuroma, with saphenous neuropathy, prior to July 15, 2013, is not warranted. To that extent, the Veteran's appeal is denied. 2. Entitlement to a rating in excess of 10 percent for left knee surgical scars since July 15, 2013 is denied. The Veteran is entitled to a 10 percent rating for left knee surgical scars since July 15, 2013. The rating criteria for scars are outlined in Diagnostic Codes 7800 through 7805 in the VA Rating Schedule. 38 C.F.R. § 4.118. Diagnostic Code 7800 relates to scars of the head, face, or neck and is therefore not applicable in the Veteran's case. Multiple VA examination reports indicate the Veteran's left knee scar covers an area of less than 39 square centimeters. For scars to be compensable under Diagnostic Codes 7801 and 7802, they must cover at least 39 square centimeters; therefore, Diagnostic Codes 7801 and 7802 are also inapplicable in the Veteran's case. Diagnostic Code 7803 was eliminated from the VA Rating Schedule prior to the effective date of service connection for the Veteran's scars with some of its provisions being subsumed into Diagnostic Code 7804. See 73 Fed. Reg. 54710 (Oct. 23, 2008). The Veteran's left knee scars are currently rated under Diagnostic Code 7804, which provides progressively higher ratings based on the number of unstable and/or painful scars. Diagnostic Code 7804 provides a 10 percent rating for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable or painful. A 30 percent rating is authorized when there are five or more scars that are unstable or painful. Note 1 to Diagnostic Code 7804 explains an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 indicates that, if one or more scars are both unstable and painful, a 10 percent rating should be added to the evaluation that is based on the total number of unstable or painful scars. 38 C.F.R. § 4.118. A March 2015 examination report indicates the Veteran has two painful left knee scars; however, there is no indication the scars are unstable. Evidence obtained in accordance with the Board's February 2020 remand directives fails to establish scarring beyond that assessed by the March 2015 examiner or provide any indication that the Veteran's scars are unstable. The Board acknowledges the Veteran has a service-connected left foot scar, but an unappealed January 2018 rating decision denied a compensable rating for this scar, finding it was neither painful nor unstable. Thus, a rating in excess of 10 percent is not warranted under Diagnostic Code 7804 because the preponderance of evidence is against a finding that the Veteran has more than two painful scars, as well as finding that any of the Veteran's scars are unstable. The Board also finds consideration of Diagnostic Code 7805 is not warranted, as it only authorizes ratings for disabling effects that are not contemplated by Diagnostic Codes 7800 through 7804. The record provides no indication the Veteran's left knee scars have resulted in disabling effects, other than pain, at any point in the appeal period. In sum, the Board finds a rating in excess of 10 percent is not warranted for the Veteran's service-connected left knee scars. The Veteran's two left knee surgical scars are painful, but the preponderance of evidence is against a finding that they involve an area of at least 39 square centimeters, have been unstable, or have resulted in any disabling effects, other than pain, at any point in the appeal period. Accordingly, the appeal of the rating assigned for left knee scars is denied. 3. Entitlement to a compensable rating for left leg saphenous neuropathy since July 15, 2013 is denied. The Veteran's left leg saphenous neuropathy is currently evaluated as noncompensable pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8627. Under Diagnostic Code 8627, a noncompensable rating is warranted for mild to moderate neuritis of the internal saphenous nerve. A 10 percent rating is warranted for severe to complete neuritis of the internal saphenous nerve. A 10 percent rating is the maximum schedular rating available under Diagnostic Code 8627. 38 C.F.R. § 4.124a, Diagnostic Code 8627. The term "incomplete paralysis" with this disability and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Here, the preponderance of evidence is against a finding that the Veteran has had severe neuritis of the internal saphenous nerve or a higher level of impairment at any point in the appeal period. A March 2015 peripheral nerve examination documents moderate incomplete paralysis of the left internal saphenous nerve, which was wholly sensory in nature, consistent with the Veteran's lay reports of experiencing tingling in his leg. A previous examiner in February 2014 reported symptoms similar to the March 2015 examiner but failed to provide an explicit assessment of the level of paralysis of the left internal saphenous nerve; therefore, the March 2015 peripheral nerve examination is the most probative evidence in this regard. Evidence obtained in accordance with the Board's February 2020 remand directives fails to establish impairment of the left internal saphenous nerve beyond that assessed by the March 2015 examiner. Thus, a compensable rating for left leg saphenous neuropathy since July 15, 2013 is not warranted. To that extent, the Veteran's appeal is denied. REASONS FOR REMAND 1. Entitlement to service connection for an acquired psychiatric disorder, claimed as PTSD, is remanded. In February 2020, the Board remanded the Veteran's service connection claim for an acquired psychiatric disorder to obtain an opinion addressing both direct and secondary service connection. In November 2020, a VA examiner diagnosed the Veteran as having schizoaffective disorder, which the examiner concluded is not the result of service or proximately due to, or aggravated by, a service-connected disability. While the November 2020 examiner referenced some of the other psychiatric diagnoses in the record, she did not adequately address whether the previous diagnoses, most notably the explicitly claimed PTSD, were provided in error or have since resolved. When a claimed disability has been diagnosed during the appeal period, VA is required to obtain a medical opinion that resolves the discrepancies between the two potentially competing medical opinions, to include discussion of whether the previous diagnosis was made in error or whether the previously diagnosed condition has since resolved. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293 (2013). Thus, an addendum to the November 2020 psychiatric examination report is necessary to ensure the decision on the Veteran's claim is fully informed. 2. Entitlement to service connection for fibromyalgia is remanded. In February 2020, the Board remanded the issue of service connection for fibromyalgia for a direct service connection opinion. The November 2020 direct service connection opinion the AOJ obtained is inadequate to make an informed decision on the Veteran's claim because the examiner's rationale was limited solely to a lack of documented treatment for fibromyalgia in service treatment records. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (explaining a lack of documented treatment in service cannot be the sole basis for a negative nexus opinion). The Board acknowledges the Veteran's June 2021 informal hearing presentation appears to raise a theory of secondary service connection for fibromyalgia, but there is currently no competent evidence of record to suggest any of the Veteran's service-connected disabilities could cause or aggravate fibromyalgia. If the Veteran intends to pursue secondary service connection for fibromyalgia, he is advised to submit competent evidence that suggests a link between fibromyalgia and his service-connected disabilities. See Waters v. Shinseki, 601 F.3d 1274, 1278 (2010) (indicating a conclusory lay statement regarding a nexus is insufficient to trigger VA's duty to provide an examination or obtain an opinion regarding a claim). 3. Entitlement to service connection for a low back disability is remanded. In February 2020, the Board remanded the issue of service connection for a low back disability for a secondary service connection opinion. The November 2020 opinion the AOJ obtained is inadequate to make an informed decision on the Veteran's claim because the examiner failed to provide a rationale to support her conclusion that the claimed low back disability has not been aggravated by the Veteran's service-connected left knee disability. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (holding an opinion that fails to adequately address aggravation is inadequate to adjudicate a secondary service connection claim). Thus, an addendum to the November 2020 examination report is necessary. 4. Entitlement to service connection for a right knee disability is remanded. The Board notes an October 2020 post-remand examiner provided a positive secondary service connection opinion regarding the Veteran's claimed right knee disability; however, the October 2020 examiner erroneously referenced pes planus as a service-connected disability, when the Veteran is entitled to service connection for bilateral bunions rather than pes planus. The AOJ obtained a new opinion regarding the Veteran's claim in February 2021 due to the erroneous reference to pes planus; however, the February 2021 examiner provided a negative opinion indicating "there is no clear evidence from review of orthopedic literature . . . to suggest that an injury to one joint would have any significant impact on another or opposite uninjured joint or limb, unless the injury resulted in a major muscle or nerve damage causing partial or complete paralysis or shortening of the injured limb resulting in length discrepancy of more than 5cm so that the individuals gait pattern has been altered to the extent that clinically there is an obvious Trendelenburg gait." The Board notes this rationale appears inconsistent with the opinion provided by the October 2020 examiner, which explicitly states a bilateral foot condition like pes planus could cause the claimed right knee disability. Further, the Veteran has nerve damage causing partial paralysis in the left leg (service-connected left leg saphenous neuropathy), a fact which was not adequately addressed by the February 2021 examiner. Thus, the Board finds a new opinion is necessary to ensure the decision on the Veteran's claim is fully informed. 5. Entitlement to a higher rating for left knee instability under Diagnostic Code 5257, rated as 10 percent disabling since July 15, 2013, is remanded. 6. Entitlement to a higher rating for left knee limitation of flexion under Diagnostic Code 5260, rated as 10 percent disabling from March 25, 2015 to May 4, 2015 and noncompensable thereafter, is remanded. 7. Entitlement to a higher rating for left knee limitation of extension under Diagnostic Code 5261, rated as 10 percent disabling from July 15, 2013 to March 24, 2015; 40 percent disabling from March 25, 2015 to May 4, 2015; and 10 percent disabling thereafter, is remanded. In February 2020, the Board remanded the Veteran's appeal of the ratings assigned for his service-connected left knee disability so the AOJ, in pertinent part, could obtain an examination report that complies with the holding in Sharp v. Shulkin, 29 Vet. App. 26 (2017) because previous examiner failed to adequately assess the effects of flare-ups of the Veteran's disability. The Veteran's October 2020 post-remand examiner indicated the Veteran did not report flare-ups at the time of that examination; however, this does not necessarily resolve the inadequacies of the previous examination reports, which suggest the Veteran has experienced flare-ups of his service-connected left knee disability during the appeal period. Thus, the Board finds a new examination should be scheduled to reconcile the inconsistency in the record with regard to knee flare-ups and to potentially obtain a retrospective estimate of additional range-of-motion-loss for any period in which it is determined he did experience flare-ups. 8. Entitlement to TDIU is remanded. In the previously noted June 2021 informal hearing presentation, the Veteran's representative asserted VA has not adequately addressed the Veteran's employment status in the context of his appeal of the ratings assigned for his service-connected disabilities. The Board concedes the record reflects the Veteran has been unemployed during the appeal period. As result, the Board finds unemployability has been raised by the record, requiring consideration of TDIU as an element of the Veteran's appeal of the rating assigned for his service-connected disabilities in accordance with the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009). This issue is inextricably intertwined with the other issues being remanded to the AOJ for further development because the Veteran does not currently meet the schedular percentage requirements for TDIU outlined in 38 C.F.R. § 4.16. See Harris v. Derwinski, 1 Vet. App. 180 (1991). Further, the AOJ should develop and adjudicate the issue in the first instance to ensure the Veteran is afforded due process. See Disabled Am. Veterans v. Sec'y of Veterans Affairs, 327 F.3d 1339, 1347 (Fed. Cir. 2003) The matters are REMANDED for the following action: 1. Obtain an addendum to the November 2020 psychiatric examination report that addresses the psychiatric diagnoses in the appeal period other than schizoaffective disorder. If a previously diagnosed psychiatric disorder (other than schizoaffective disorder), to include, but not limited to, PTSD and major depressive disorder, is not found currently, the examiner must address whether the previous diagnosis was made in error or whether the previously diagnosed condition has since resolved. If it is determined a previously diagnosed psychiatric disorder has resolved or was not otherwise provided in error, the examiner must still provide an opinion addressing whether that disorder is at least as likely as not the result of an in-service disease or injury; or proximately due to, or aggravated by, a service-connected disability. The secondary service connection opinion must explicitly address both causation and aggravation to be deemed adequate. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. If the November 2020 examiner is unavailable or cannot otherwise provide the requested addendum, it may be obtained from another equally well-qualified examiner. The addendum must include a complete rationale to support all conclusion contained therein. 2. Schedule the Veteran for an examination to obtain a new opinion regarding his service connection claim for fibromyalgia, preferably with an examiner who has not previously examined him. The selected examiner must provide an opinion addressing whether fibromyalgia at least as likely as not (1) began during active service, (2) manifested within one year after discharge from service, (3) was noted during service with continuity of the same symptomatology since service, or (4) is otherwise the result of an in-service disease or injury. The examiner must be advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. The examination report must include a complete rationale for the opinion provided. 3. Obtain an addendum to the November 2020 opinion regarding the issue of service connection for a low back disability that includes a rationale for the examiner's conclusion that the Veteran's low back disability has not been aggravated by his service-connected disabilities. If the November 2020 examiner is unavailable or cannot otherwise provide the requested addendum, it may be obtained from another examiner. The addendum must include a complete rationale to support all conclusion contained therein. 4. Schedule the Veteran for an examination to obtain a new opinion regarding the issue of service connection for a right knee disability, preferably with an examiner who has not previously examined him. The selected examiner must provide an opinion addressing whether the Veteran's current right knee disability is at least as likely as not proximately due to, or aggravated by, his service-connected disabilities. The opinion must explicitly address both causation and aggravation to be deemed adequate. The examiner must be advised aggravation means an increase in the severity of the underlying disability beyond its natural progression. If aggravation is found, the examiner should attempt to quantify the degree of additional disability resulting from the aggravation. The examiner must be further advised the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so. In the context of the opinion, the examiner is specifically asked to resolve the conflict between the October 2020 and February 2021 opinion as to whether a bilateral foot condition could cause or aggravate the claimed right knee disability. In addressing this issue, the examiner must explicitly acknowledge the Veteran is entitled to service connection for bilateral bunions rather than pes planus as erroneously noted by the October 2020 examiner. The examination report must include a complete rationale for the opinion provided. 5. Schedule the Veteran for a new examination to assess the severity of his service-connected left knee disability, preferably with an examiner who has not previously examined him. The selected examiner should conduct all indicated tests and studies, to include range of motion testing. The knees should be tested in both active and passive motion and in weight-bearing and nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present. The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time. Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up or after repeated use over time. If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). If the examiner determines the Veteran does not currently experience flare-ups, the examiner must explicitly reconcile this report with the examination reports earlier in the appeal period and then provide the requested estimate of potential additional range-of-motion loss during any period in which it is determined the Veteran did experience flare-ups to the extent possible based on the available evidence. 6. Readjudicate the issues on appeal, to include TDIU as an element of the Veteran's appeal of the ratings assigned for his service-connected disabilities, providing extra-schedular consideration, as necessary, for any period in which it is determined the Veteran does not meet the schedular percentage requirements outlined in 38 C.F.R. § 4.16. M. HYLAND Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. S. Kyle, 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.