Citation Nr: 22017290 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 17-53 283 DATE: March 24, 2022 ORDER A rating in excess of 30 percent for right knee injury status post right knee replacement prior to January 22, 2021, is denied. A rating in excess of 60 percent for right knee injury status post right knee replacement since January 22, 2021, is denied. A compensable rating for pilonidal cyst status post-surgical removal scar prior to November 26, 2019, is denied. A rating in excess of 10 percent for pilonidal cyst status post-surgical removal scar since November 26, 2019, is denied. FINDINGS OF FACT 1. The Veteran served on active duty from May 1984 to October 1991. 2. Prior to January 22, 2021, a right knee disability has been manifested by subjective complaints of pain and stiffness; objective findings include normal extension and intermediate degrees of residual weakness, pain, or limitation of motion. 3. Since January 22, 2021, the Veteran is assigned the highest allowable rating for a right knee disability subject to the amputation rule. 4. Prior to November 26, 2019, the pilonidal cyst scar was manifested by a painful scar, not involving the head, face, or neck, which was not deep, did not cause limitation of motion or function, did not exceed 144 square inches (sq. in.) (929 square centimeters (sq. cm.)), and had no other disabling effects. 5. Since November 26, 2019, the pilonidal cyst scar is manifested by a painful scar, not involving the head, face, or neck, is not deep, did not cause limitation of motion or function, did not exceed 144 square inches (sq. in.) (929 square centimeters (sq. cm.)), and had no other disabling effects. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for right knee injury status post right knee replacement prior to January 22, 2021, have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.59, 4.71a, Diagnostic Code (DC) 5055 (2021). 2. The criteria for a rating in excess of 60 percent since January 22, 2021, for the right knee injury status post right knee replacement have not been met. 38 U.S.C. §§ 1155, 5103, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.68, 4.7, 4.71a, DC 5055 (2020); 38 C.F.R. § 4.71a, DC 5055 (2021). 3. The criteria for a compensable rating for pilonidal cyst status post-surgical removal scar prior to November 26, 2019, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, DC 7804 (2021). 4. The criteria for a rating in excess of 10 percent for pilonidal cyst status post-surgical removal scar since November 26, 2019, have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, DC 7804 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal was previously before the Board in April 2019 when it was remanded for additional development. That development has been accomplished, and the claims have now been returned to the Board for further action. Stegall v. West, 11 Vet. App. 268 (1998). In a January 2022 letter, VA notified the Veteran that his private representative is no longer accredited. Because the representative is no longer accredited, VA may not recognize him as the Veteran's representative. The notice informed the Veteran of other options he could pursue if he wished to be represented. To date, the Veteran has not appointed a new representative. As such, he is proceeding pro se in this appeal. Increased Rating Claims Turning to the relevant laws and regulations, disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Right Knee The Veteran was assigned a 100 percent rating from October 8, 2016, until January 1, 2017, due to a right total knee replacement, followed by a 30 percent rating for the residuals of a total knee replacement from January 1, 2017, to January 22, 2021, at which point the rating was increased to 60 percent, the maximum rating assignable for the residuals of a total knee replacement. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, the relevant DCs for the Veteran's right knee disability have not been changed. As such, the amended regulations are not for application in this case. Prior to January 22, 2021 The Veteran was assigned a 30 percent rating for right knee injury status post right knee replacement from January 1, 2017, to January 22, 2021, after which it was increased to the maximum 60 percent for the remainder of the appeal period. Under DC 5055, a 100 percent rating is assigned with a subsequent minimum rating of 30 percent assigned thereafter. A higher rating is possible with intermediate degrees of residual weakness, pain, or limitation of motion rated by analogy to DCs 5256, 5261, or 5262. As such, a rating in excess of 30 percent will be warranted with: knee replacement (prosthesis) with chronic residuals consisting of severe painful motion or weakness in the affected extremity (60% under DC 5055); or, ankylosis in flexion between 10 degrees and 20 degrees (40% under DC 5256); or, extension of limitation to 30 degrees (40% under DC 5261); or nonunion of the tibia and fibula, with loose motion requiring a brace (40% under DC 5262). Turning to the medical evidence, at a January 2017 VA examination, the Veteran reported flare-ups of the right knee which consisted of a sharp pain needing stretching and rest before getting up. He noted that these flare-ups usually took place during a weather change and after extended use. He also noted previous issues with his right knee buckling. The VA examiner noted intermediate degrees of residual weakness, pain, or limitation of motion due to right knee replacement surgery. In November 2019, the Veteran reported recurrent knee pain with sharp pain during flare-ups, which impacted his ability to bear weight and engage in prolonged standing or walking. The VA examiner indicated intermediate degrees of residual weakness, pain, or limitation of motion due to right knee replacement surgery. Under DC 5055, a higher 60 percent rating is warranted for chronic residuals consisting of severe painful motion or weakness in the affected extremity. The above evidence does not reflect severe painful motion or weakness in the affected extremity. As such, the medical evidence does not support an increased rating on this basis. Further, the VA examiner and clinical providers reported no ankylosis of the right knee. In the absence of ankylosis, a rating in excess of 30 percent is also not warranted under DC 5256. As ankylosis (a fixation of the joint) is not shown, DC 5256 is not for application. In addition, the January 2017 VA examiner reported right knee extension from 85 degrees to 0 degrees. During a flare-up, extension was from 80 degrees to 0 degrees. The November 2019 VA examiner reported right knee extension from 90 degrees to 0 degrees. The examiner noted that further loss of range of motion was not anticipated after repeated use over time or during a flare-up and only increased symptoms of pain. Even when considering factors such as pain, weakness, weakened movement, excess fatigability, and incoordination, the Veteran's motion far exceeded the levels required for compensable ratings in excess of the 30 percent currently assigned. As such, the medical evidence does not support an increased rating based on ankylosis or limited range of motion. Next, the VA examinations and clinical evidence do not show nonunion of the tibia and fibula. Specifically, no examiner has diagnosed the Veteran with a condition involving the tibia or fibula for the right knee. VA treatment records from this period reflect continued complaints of right knee pain but are otherwise silent for any notations of malunion or nonunion of the tibia or fibula, ankylosis, weakness of the right lower extremity or chronic severe pain. As such, the medical evidence does not support the claim for a rating in excess of 30 percent for a right knee disability prior to January 22, 2021. Right Knee Since January 22, 2021 The Veteran's right knee injury status post right knee replacement has been rated at 60 percent since January 22, 2021. As this the maximum schedular rating assignable under DC 5055 under the pre-amended and amended musculoskeletal rating criteria, and any higher rating would violate the amputation rule defined in 38 C.F.R. § 4.68, a higher rating for this period not warranted. Therefore, medical evidence, to include the January 2021 VA examination report need not be analyzed further. As such, there is no basis for a rating in excess of 60 percent for the period since January 22, 2021. Pilonidal Cyst Status Post-Surgical Removal Scar The Veteran's scar disability was rated at noncompensable under DC 7804 prior to November 26, 2019 and has been rated at 20 percent since November 26, 2019. The Board will consider all relevant diagnostic codes. A compensable rating will be warranted when the objective medical evidence shows the following: Scars not of the head, face, or neck that are associated with underlying soft tissue damage with an area or areas of at least 6 square inches (sq. in.) (39 sq. cm.) but less than 12 sq. in. (77 sq. cm.) (10% under DC 7801); Scars not of the head, face, or neck, that are not associated with underlying soft tissue damage with an area or areas of 144 sq. in. (929 sq. cm.) (10% under DC 7802); or Scars that are unstable or painful with one or two scars (10% under DC 7804). A rating in excess of 10 percent will be warranted when the objective medical evidence shows the following: three or more scars that are unstable or painful (20 percent under DC 7804); or other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under DCs 7800-7804 under an appropriate diagnostic code (DC 7805). Other diagnostic codes relating to scarring are DC 7800 (burn scars of the head, face, or neck), DC 7801 (burn scars to areas other than the head, face, or neck), 7802 (burn scars that are superficial). These disorders are not shown in the record for the period on appeal and application of those diagnostic codes is not warranted. Prior to November 26, 2019 Turning to the evidence, at the December 2016 VA examination, he had one scar at the gluteal cleft from the removal of a pilonidal cyst. The Veteran reported symptoms of redness, itching around the scar area, and an occasional dull pain in that area. The examiner did not find any functional impairment, the scar was not unstable, and no disfigurement was noted. Based on the above, a compensable rating prior to November 26, 2019 is not warranted. In this regard, there is no evidence of deep, nonlinear scars in an area of at least 6 sq. in. (39 sq. cm.) or superficial, nonlinear scars in an area or areas of 144 sq. in. (929 sq. cm.) or greater. Similarly, at no point has underlying tissue damage been shown. As such, the medical evidence does not support a higher rating prior to November 26, 2019. Since November 26, 2019 Turning to the evidence, on a November 2019 VA examination, the examiner diagnosed a status post pilonidal cyst excision with painful scar. The examiner indicated that the scar caused progressive recurrent discomfort with pain at the scar. The examiner found that the scar was described as a sharp, burning pain. The examiner noted that the Veteran did not have scars on his head, face, or neck. He indicated that the scar was not unstable with frequent loss of covering of skin over the scar, or due to burns. The length and width of the scar was measured at 5.0 cm by 0.75 cm and resulted in no other pertinent findings, complications, or limitations in functional impact. The combined total affected area was 3.75 sq. cm. Available treatment records were also reviewed. While sporadic complaints were noted, there was no evidence that suggested increased symptomatology than what was outlined in the referenced VA examinations. Based on the above, a rating in excess of 10 percent is not warranted. In this regard, a painful, scar was identified on the gluteal cleft; however, the scar did not have an area of at least 77 sq. cm. Furthermore, while pain was noted, the examination failed to identify three to four scars due to his pilonidal cyst excision. Further, DC 7805 is inapplicable because the Veteran's scar was not shown to have any disabling effects. Accordingly, the medical evidence does not support a rating in excess of 10 percent for pilonidal cyst status post-surgical removal scar. With regard to all claims, the Board has considered the Veteran's lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of the disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran's disabilities have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which the disabilities are evaluated. (Continued on the next page) Moreover, as the examiners have the requisite medical expertise to render medical opinions regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusion, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran's subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeals are denied. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board's consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). M. YACOUB Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Grzeczkowicz 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.