Citation Nr: 22040184 Decision Date: 07/13/22 Archive Date: 07/13/22 DOCKET NO. 19-00 269A DATE: July 13, 2022 ORDER Entitlement to an increased, 10 percent disability evaluation for residuals, scar, status-post meniscectomy of the left knee, is granted. FINDING OF FACT The Veteran's residuals, scar, status-post meniscectomy of the left knee, is painful, but is not at least 6 inches square, deep and nonlinear, unstable, and there are no disabling effects due to the scars. CONCLUSION OF LAW The criteria for an initial disability evaluation of 10 percent, but no higher, for residuals, scar, status-post meniscectomy of the left knee, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.118, Diagnostic Codes 7801 7805 (2017, 2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from March 1986 to November 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision of the Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In pertinent part, the April 2018 rating decision granted service connection for residuals, scar, status-post meniscectomy of the left knee, and assigned a noncompensable disability evaluation, effective June 12, 2017. In March 2022, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that proceeding is associated with the Veteran's claims file. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board ... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased disability evaluation for residuals, scar, status-post meniscectomy, left knee, currently rated as noncompensable (0 percent) disabling. The Veteran's service-connected residuals, scar, status-post meniscectomy of the left knee, is currently assigned a noncompensable disability rating pursuant to Diagnostic Code 7805 for the entire appeal period. The Board acknowledges that the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). In this regard, the Board observes that the Veteran was granted service connection for the scar as part of the adjudication of his claim for an increased disability evaluation for his service-connected left knee meniscectomy; the AOJ noted that it assigned a disability rating pursuant to Diagnostic Code 7805 because the Veteran's surgical scar is linear and superficial, and measures 0.5 inch (3.3 cm). Nevertheless, as will be explained below, the evidence demonstrates that the Veteran's scar is painful. As such, the Board finds that the Veteran's residuals, scar, status-post meniscectomy of the left knee is more appropriately rated pursuant to Diagnostic Code 7804. The Board notes that on July 13, 2018, VA published a final rule amending its regulations on skin disabilities. 83 Fed. Reg. 32592 (July 13, 2018). The effective date of the final rule is August 13, 2018. However, for this final rule, VA's intent is that the 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. For applications filed on or after the effective date, only the new criteria will be applied. As the Veteran filed his claim before the August 13, 2018 effective date, the Board will consider whether either the old or new rating criteria is more favorable to the Veteran. The prior version of Diagnostic Code 7801 provides 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. The current version of 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. Both the old and new criteria provide that a 10 percent rating is awarded when the area of the scar(s) covers at least 6 square inches (39 square cm) but less than 12 square inches (77 square cm). A 20 percent rating is warranted when the area of the scar(s) covers at least 12 square inches (77 square cm) but less than 72 square inches (456 square cm). A 30 percent rating is warranted when the area of the scar(s) covers at least 72 square inches (456 square cm) but less than 144 square inches (929 square cm). A 40 percent rating is assigned when the area of the scar(s) covers at least 144 square inches (929 square cm) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7801. Note (1) to the pre-amended Diagnostic Code 7801 stated that a deep scar is one associated with underlying soft tissue damage. Prior to 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 Code 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. Both versions state that a 10 percent disability rating is warranted when the area of the scar covers 144 square inches (929 square cm) or greater. Under both the old and new rating criteria, Diagnostic Code 7804 provides disability ratings for scars that are unstable or painful. A 10 percent rating for is assigned for one or two such scars. A 20 percent rating is warranted for three to four such scars, and a 30 percent disability rating is assigned for five or more scars. 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 Code 7804. Under the old rating criteria, 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. 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. After a review of all the evidence, the Board finds that the Veteran's residual scar, status-post meniscectomy of the left knee, most closely approximates the criteria for a 10 percent disability evaluation, but no higher, for the entire rating period on appeal under Diagnostic Code 7804. A higher disability evaluation is unavailable under Diagnostic Codes 7801 or 7805. The objective clinical evidence of record, namely the February 2021 VA examination reports, and March 2021 addendum, show that the Veteran's residual, scar, status-post meniscectomy of the left knee, is manifested by a linear scar that measures 11 cm by .3 cm; the April 2018 VA examiner indicated that the total area was .5 square inches or 3.3 square centimeters. As such, the Veteran's scar does not exceed 6 square inches. Likewise, the scar is superficial, without skin breakdown, keloid formation, inflammation, or edema. Furthermore, although the medical evidence indicates that his scar is painful, there is no evidence of unstable skin in the area of his scar upon evaluation. Additionally, the scar is not productive of adherence, and the Veteran's scar does not cause limitation of motion or disfigurement. The Board observes that the Veteran has not made any complaints related to his residual scar, status-post meniscectomy of the left knee, other than pain, and that his VA treatment records do not show any related treatment. Therefore, a 10 percent disability rating, but no higher, is warranted for his residual scar, status-post meniscectomy of the left knee, under Diagnostic Code 7804. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.