Citation Nr: A24029767 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 210302-144010 DATE: June 6, 2024 ORDER An initial compensable disability rating for service-connected right knee scar, status post meniscectomy, is denied. FINDING OF FACT The evidence persuasively establishes that the Veteran's right knee scar measures no more than .5 square centimeters (cm); is not deep and nonlinear; is not associated with underlying soft tissue damage; and is not unstable or painful. CONCLUSION OF LAW The criteria for an initial compensable disability rating for service-connected right knee scar, status post meniscectomy, have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.118, Diagnostic Codes 7800-7804. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1988 to May 1989, September 1990 to April 1991, March 2003 to June 2003, and March 2005 to June 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2020 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In the March 2021 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the evidence submission docket. The Board observes that the decision on appeal was issued on February 18, 2020, but the Veteran was notified on March 4, 2020. Therefore, the VA Form 10182 of March 2021 is considered timely. The Board may only consider the evidence of record at the time of the February 2020 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. An initial compensable disability rating for service-connected right knee scar, status post meniscectomy, is denied. The Veteran currently has a noncompensable rating under Diagnostic Code (DC) 7802 for his service-connected right knee scar, status post meniscectomy of October 2009. He seeks a higher rating. Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Scars in general are evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.118, DCs 7800-7805. The Board notes that the rating criteria for scars were amended on August 13, 2018. Generally, in a claim for an increased rating, the Board considers both the former and current criteria where the rating criteria are amended during the course of an appeal. As such, the Board will consider the Veteran's scar under the criteria in effect both before and after August 12, 2018. DC 7800 deals with scars and disfigurement of the head, face, or neck. Therefore, discussion of the Veteran's right knee scar under DC 7800 is not necessary in this case. DC 7801 evaluates burn scars or scars due to other causes, not of the head, face, or neck, that are deep and nonlinear (prior to August 2018) or associated with underlying soft tissue damage (since August 2018). Under these criteria, a scar with an area or areas of at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.) warrants a 10 percent rating. A scar with an area or areas of at least 12 square inches (77 sq. cm.) but less than 72 square inches (465 sq. cm.) warrants a 20 percent rating. Higher ratings are available if larger areas are affected. Prior to August 2018, Note 1 instructed that a deep scar is one associated with underlying soft tissue damage. The pre- and post-August 2018 codes also differ regarding instructions for totalling the area affected when there is more than one qualifying scar. DC 7802 evaluates burn scars or scars due to other causes, not of the head, face, or neck, that are superficial and nonlinear (prior to August 2018) or not associated with underlying soft tissue damage (since August 2018). Under these criteria, a scar with an area or areas of 144 square inches (929 sq. cm.) or greater warrants a 10 percent rating. 38 C.F.R. § 4.118. No higher ratings are available under either version of this code. Prior to August 2018, a "superficial scar" is defined as one not associated with underlying soft tissue damage. The pre- and post-August 2018 codes also differ regarding instructions for totalling the area affected when there is more than one qualifying scar. Under DC 7804, one or two scars that are unstable or painful scars warrants a 10 percent rating. Three or four scars that are unstable or painful scars warrants a 20 percent rating. Five or more scars that are unstable or painful warrants a 30 percent rating. 38 C.F.R. § 4.118. Note 1 to Diagnostic Code 7804 instructs that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Note 2 instructs that if one or more scars are both unstable and painful, 10 percent is added to the evaluation based on the total number of unstable and painful scars. Id. Diagnostic Code 7804 was not changed by the August 2018 amendments. Under the pre- and post-August 2018 codes, DC 7805 provides that a scar may be rated on any disabling effect(s) not considered as part of DCs 7800 to 7804. In the present case, the evidence is clearly against an initial compensable rating for the Veteran's right knee scar. In a June 2014 VA knee examination, the Veteran reported a history of right knee surgery and complained of right knee pain during long distance walking. The examiner noted that the Veteran had a right knee scar related to his October 2009 arthroscopic surgery. The examiner indicated that the scar was not painful, unstable, or of a total area greater than 39 square cm. No other pertinent physical findings, complications, signs, or symptoms were noted. In a February 2015 VA examination, the Veteran reported bilateral knee pain worse after walking and using stairs. The examiner noted that the Veteran had a history of right knee arthroscopy with residual symptoms of pain and decreased range of motion. The examiner noted that the Veteran had a right knee scar that measured 1 cm by 0.1 cm. The examiner indicated that the right knee scar was not painful, unstable, or having a total area of greater than 39 cm. No other pertinent physical findings, complications, signs, or symptoms were noted. In a December 2019 VA examination, the Veteran reported increased knee pain with prolonged standing, walking, or bending. The examiner noted the Veteran's history of meniscectomy and that the Veteran had a right knee scar that measured 1 cm by 0.5 cm. The examiner indicated that there was no objective evidence that the scar was painful, unstable, or had a total area equal to or greater than 39 square cm. No other pertinent physical findings, complications, signs, or symptoms were noted. The Board notes that the claims file also contains VA treatment records encompassing the entire appeal period. However, these treatment records do not contain any relevant information as to the characteristics or severity of the Veteran's right knee scar. Neither do the records document any complaints or treatment related to the right knee scar. In May 2021, the Veteran's representative submitted an affidavit, signed by the Veteran in February 2021. In it, the Veteran reported that the scar on his right knee causes pain and discomfort and has ever since 2009. He further asserted that the scar is sensitive to the touch and to his pants brushing against it when he dresses. After careful review of the evidence, the Board finds that entitlement to an initial compensable disability rating for the Veteran's right knee scar is not warranted. The evidence persuasively establishes that the scar has not been unstable or painful throughout the appeal period. The Board acknowledges the Veteran's February 2021 statements contending that his right knee scar is painful and has been since 2009. However, his contentions are contradicted by contemporaneous evidence of record. In each of three VA examinations for the Veteran's knee, the examiner found no objective evidence that the Veteran's right knee scar was painful or unstable, and the right knee scar was not noted as painful or unstable by any VA examiner. In each of the VA examinations, the Veteran reported a history of right knee pain with prolonged walking but did not report symptoms of a painful right knee scar. In this regard, the Board notes that, had the Veteran been experiencing pain associated with his right knee scar, it would be expected that he would have described such symptoms when his right knee and right knee scar were evaluated by the June 2014, February 2015, and December 2019 VA examiners. Instead, the records indicate that the Veteran's scar was not painful. Therefore, the Board finds that the Veteran's assertion that his right knee scar has been painful since 2009 is not credible and affords it no probative weight. The Board has also considered the other diagnostic codes pertaining to scars. However, the evidence establishes that the Veteran has one right knee scar that is not of the head, face, or neck, is not noted as deep or nonlinear, and is not associated with underlying soft tissue damage. Not only is the right knee scar superficial and not associated with underlying soft tissue damage, it also does not cover an area or areas of 144 square inches or greater. Therefore, DCs 7800 through 7802, both prior to and from August 13, 2018, are not applicable. Finally, the evidence of record shows there are no other disabling effects not considered in a rating provided under DCs 7800-04 as contemplated under both pre- and post-August 13, 2018, DC 7805. Accordingly, the Board finds the evidence of record persuasively weighs against the grant of an initial compensable rating for the Veteran's service-connected right knee scar. As the evidence is against the award of an initial compensable rating, the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b). M. Donohue Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Brunner, 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.