Citation Nr: 1743982	
Decision Date: 09/15/17    Archive Date: 10/10/17

DOCKET NO.  09-46 805	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1.  Entitlement to service connection for a left hip disability, to include as secondary to service-connected disabilities.

2.  Entitlement to service connection for an acquired psychiatric disorder, to include a substance-induced mood disorder, and to include as secondary to service-connected disabilities.  

3.  Entitlement to an evaluation in excess of 10 percent from October 26, 2007 to January 21, 2009, and an evaluation in excess of 30 percent from January 22, 2009, for status post right knee meniscus and anterior cruciate ligament (ACL) repair.  

4.  Entitlement to a compensable evaluation from October 26, 2007 to January 21, 2009, and an evaluation in excess of 10 percent from January 22, 2009, for scars on anterior and lateral right knee status post right knee ACL repair.  



REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

Journet Shaw, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the U.S. Army from September 1991 to February 1992 and a period of active duty for training in the U.S. Army Reserves from June 1993 to July 1993.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2008 and February 2009 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.  

During the pendency of the appeal, the RO issued a July 2010 rating decision granting a 30 percent evaluation for status post right knee meniscus and ACL repair, effective January 22, 2009; and granted a separate 10 percent evaluation for right knee degenerative joint disease (DJD) with limitation of extension, effective May 24, 2010.  The Veteran continues to appeal for a higher evaluation for status post right knee meniscus and ACL repair.  AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claimant is presumed to be seeking the maximum rating).  The Veteran has not appealed for a higher evaluation for right knee DJD with limitation of extension; therefore, that issue is not currently before the Board.  

The Veteran testified before a Veterans Law Judge (VLJ) at an April 2014 Travel Board hearing.  A transcript of this hearing is of record.  In April 2016, the Veteran was notified that the VLJ who held his April 2014 hearing was no longer employed by the Board.  The Veteran did not respond to the offer for another hearing.  38 C.F.R. § 20.717 (2016).

The Board, in pertinent part, has remanded the issues on appeal for additional development in June 2013, May 2015, and July 2016.  As discussed below, there has not been substantial compliance with the May 2015 remand instructions with regard to the service connection claims for a left hip disability and an acquired psychiatric disorder, so these matters must be remanded again.  However, there has been substantial compliance with regard to the remand instructions regarding the increased rating claims for status post right knee meniscus and ACL repair and right knee scars.  Accordingly, these matters have been properly returned to the Board for appellate consideration.  See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).  

The issues of entitlement to service connection for a left hip disability and entitlement to service connection for an acquired psychiatric disorder are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1.  From October 26, 2007 to January 21, 2009, the Veteran's status post right knee meniscus and ACL repair manifests symptoms of chronic pain with severe flare-ups occurring daily and right knee deformity, giving way, stiffness, weakness, and locking episodes.  

2.  From January 22, 2009, the Veteran's status post right knee meniscus and ACL repair manifests symptoms of chronic pain with severe flare-ups occurring weekly and right knee deformity, giving way, instability, stiffness, weakness, decreased speed of joint motion, episodes of dislocation or subluxation, locking episodes, repeated effusions and inflammation; flexion was no less than 110 degrees and extension was limited to 11 degrees.  

3.  From October 26, 2007 to January 21, 2009, the Veteran's right knee scars are not painful or unstable.  

4.  From January 22, 2009, the Veteran has one painful right knee scar.  


CONCLUSIONS OF LAW

1.  From October 26, 2007 to January 21, 2009, the criteria for an evaluation in excess of 10 percent for status post right knee meniscus and ACL repair have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2016).

2.  From January 22, 2009, the criteria for an evaluation in excess of 30 percent for status post right knee meniscus and ACL repair have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5257 (2016).

3.  From October 26, 2007 to January 21, 2009, the criteria for a compensable evaluation for scars on anterior and lateral right knee have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7803 (2007), Diagnostic Codes 7804 (2016).

4.  From January 22, 2009, the criteria for an evaluation in excess of 10 percent for scars on anterior and lateral right knee have not been met.  38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.118, Diagnostic Code 7803 (2007), Diagnostic Codes 7804 (2016).



REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Board has thoroughly reviewed all the evidence in the claims file, and has an obligation to provide an adequate statement of reasons or bases supporting its decision.  See 38 U.S.C.A. § 7104 (West 2014); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000).  While the Board must review the entire record, it need not discuss each piece of evidence.  Id.  The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  It should not be assumed that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000).  The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant.  Id.   

The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant.  Caluza v. Brown, 7 Vet. App. 498, 506 (1995).  Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value.  Gilbert v. Derwinski, 1 Vet. App. 49 (1990).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  Id.  

Duties to Notify and Assist

Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014);  38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2016).

Neither the Veteran nor his/her representative have 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).

Higher Evaluation

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.

The veteran's entire history is to be considered when making disability evaluations.  38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55 (1994).  Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made.  Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007).

The Veteran's status post right knee meniscus and ACL repair has been currently evaluated as 10 percent disabling, effective September 23, 2003, and 30 percent disabling, effective January 22, 2009, under 38 C.F.R. § 4.71a, Diagnostic Code 5257.  As discussed in the introduction above, the Veteran also has a separate 10 percent evaluation for right knee DJD with limitation of extension, effective May 24, 2010.  That evaluation is not on appeal and will not be addressed in the discussion below.   

VA is required to evaluate the Veteran's disability under the most appropriate rating criteria that will provide the most benefit to the Veteran.  The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case."  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, diagnosis, and demonstrated symptomatology.  Any change in diagnostic code by a VA adjudicator must be specifically explained.  See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992).

Diagnostic Code 5257 rates on the basis of recurrent subluxation or lateral instability.  38 C.F.R. § 4.71a, Diagnostic Code 5257 (2016).  Slight recurrent subluxation or lateral instability of the knee is rated as 10 percent disabling; moderate recurrent subluxation or lateral instability of the knee is rated as 20 percent disabling; and severe recurrent subluxation or lateral instability of the knee is rated as a maximum 30 percent disabling.  Id.  

The Board observes that the words "slight," "moderate," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just.  38 C.F.R. § 4.6 (2016).  Use of terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue.  All evidence must be evaluated in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6 (2016).

Diagnostic Code 5258 provides for a 20 percent evaluation on the basis of dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  38 C.F.R. § 4.71a, Diagnostic Code 5258 (2016).  This is the only available evaluation under this diagnostic code.

Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion.  See 38 C.F.R. § 4.71a, Plate II.  Diagnostic Codes 5260 and 5261 provide for ratings of 0, 10, 20, or 30 percent where there is limitation of flexion of the leg to 60, 45, 30, or 15 degrees, respectively, and for ratings of 0, 10, 20, 30, 40, or 50 percent for limitation of extension of the leg to 5, 10, 15, 20, 30, or 45 degrees, respectively.

Other diagnostic codes pertaining to the knee and leg that provide for higher than 10 percent evaluations do not apply in this case, as the evidence does not demonstrate ankylosis of the knee (Diagnostic Code 5256) or impairment of the tibia and fibula (Diagnostic Code 5262).

An October 2007 VA treatment record documents that the Veteran's VA treating physician recommended that the Veteran receive an unloaded brace for his right knee.  

In March 2008, the Veteran underwent a VA orthopedic examination.  The Veteran reported his current right knee symptoms, including pain, deformity, giving way, stiffness, weakness, locking episodes several times a year but less than monthly, inflammation symptoms (swelling and tenderness), and daily, severe flare-ups lasting for hours.  His pain was treated with medication three times a day with fair control.  The Veteran constantly used a brace and cane for walking.  He was able to stand for more than one hour, but less than three hours.  Walking was limited to one-quarter of a mile.  Upon objective evaluation, the VA examiner observed that the Veteran could walk unaided, and that there was no evidence of abnormal weight bearing.  No redness, palpable heat, edema, effusion, dislocation, or subluxation of the right knee was visualized.  Range of motion testing could not be performed, because the Veteran kept putting resistance to the examiner claiming severe pain upon light touch.  The VA examiner continued the diagnosis for right knee meniscus and ACL tear repair.  

In September and December 2008, the Veteran sought VA clinic treatment for right knee pain.  Objective evaluation results showed that his range of motion was intact, muscle tone was adequate, and there were no deformities, swelling, or crepitus.  A December 2008 MRI report revealed that the Veteran's graft status post ACL reconstruction was intact; the non-visualized lateral meniscus anterior horn and posterior horn central root insertion were felt to be torn; areas of cartilage thinning and loss were found at the patellofemoral and femorotibial joints; and thickened proximal medial collateral ligament was a likely residual from prior injury.  

In February 2009, the Veteran underwent a VA examination of his right knee scars.  Upon objective evaluation, the VA examiner found one scar located in the anterior aspect of the right knee.  The scar was superficial, linear and measured six centimeters (cm.) by one cm.  Pain in the scar was shown on examination.  The scar was not unstable.  No limitation of motion, adherence to underlying tissue, or hyperpigmentation was found.  

In May 2010, the Veteran was afforded another VA orthopedic examination.  The Veteran reported his current right knee symptoms, including chronic pain, deformity, giving way, instability, stiffness, weakness, decreased speed of joint motion, episodes several times a week of dislocation or subluxation, locking episodes several times a week, repeated effusions, inflammation symptoms (warmth, swelling, tenderness).  The Veteran had weekly, severe flare-ups, which lasted for hours and were precipitated by prolonged standing and walking and climbing stairs.  Due to flare-ups of right knee pain, the Veteran said he had functional impairment exhibited by decreased range of motion and decreased ambulation.  He was reportedly unable to stand for more than a few minutes, but able to walk more than one-quarter of a mile but less than one mile.  For assistance, the Veteran constantly used one cane and knee brace.  Treatment included taking daily prescription medications.  

Upon objective evaluation, the May 2010 VA examiner found that the Veteran had an antalgic gait and poor propulsion.  There was no other evidence of abnormal weight bearing.  Crepitus, subpatellar tenderness, pain at rest, weakness, guarding of movement, grinding, effusion and evidence of a meniscal tear was observed.  A positive McMurray's test was noted.  There was no ankylosis.  Range of motion testing of the right knee revealed flexion at 119 degrees with pain and extension limited by 11 degrees with pain.  Pain was found following repetitive use testing.  The examiner diagnosed the Veteran with right knee ACL tear status post repair, right knee meniscus tear, and right knee DJD.  

In May 2013, the Veteran was afforded another VA orthopedic examination.  The Veteran reported that his current right knee pain had worsened since his last VA examination.  He also reported having symptoms of a giving way sensation and burning sensation at the right knee joint.  The Veteran had flare-ups which caused difficulty walking and using a bicycle.  A one point cane was regularly used for assistance.  Upon objective evaluation, the VA examiner found tenderness, but normal muscle strength and joint stability testing results.  Range of motion testing of the right knee revealed flexion at 110 degrees with pain and extension at zero degrees with pain.  Diagnostic testing documented arthritis, but no evidence of patellar subluxation.  Right knee scars were not painful, unstable, or greater than 39 square cm.  

At an August 2015 VA orthopedic examination, the Veteran reported symptoms of constant right knee pain and a locking sensation.  Giving way sensation was denied.  The Veteran also reported having flare-ups, which made him unable to walk long distances.  The Veteran regularly used a knee brace and a cane to assist with pain.  Upon objective evaluation, the VA examiner found crepitus, but no tenderness.  Normal muscle strength testing results were noted.  No muscle atrophy or ankylosis was found.  Joint stability tests were negative.  The VA examiner found that the Veteran had right knee meniscal tear residuals of right knee pain and locking pain sensation.  Two scars located at the anterior and lateral aspect of the right knee were found, but they were not painful, unstable, or have a total area greater than 39 square cm.  Range of motion testing of the right knee revealed flexion at 125 degrees with pain and extension at zero degrees without pain.  There was evidence of pain with weight-bearing.  An additional five degrees of loss in range of flexion motion was found upon repetitive use testing.  Functional loss due to pain was observed.  The VA examiner was unable to say without resorting to speculation whether pain significantly limited functional ability with repeated use over a period of time.  No evidence of fatigability, incoordination, muscle weakness or pain was found during physical examination.  Because flare-ups were not present during examination, no opinion as to whether pain significantly limited functional ability with flare-ups could be provided without resorting to mere speculation.  

Based on a careful review of the subjective and clinical evidence, the Board finds that from October 26, 2007 to January 21, 2009, the evidence does not demonstrate that the Veteran's status post right knee meniscus and ACL repair warrants a higher than 10 percent evaluation.  Although range of motion testing could not be conducted at his March 2008 VA examination, subsequent VA treatment records in September and December 2008 found that the Veteran's right knee range of motion was intact.  Aside from pain, no other symptoms were reported.  Therefore, the evidence does not show that the Veteran's right knee range of motion was so abnormal during this appeal period to suggest that a higher 20 percent evaluation for limitation of flexion (limited to 30 degrees) or limitation of extension (limited to 15 degrees) under Diagnostic Codes 5260 and 5261 is warranted.  

Furthermore, at his March 2008 VA examination, the VA examiner found no objective evidence of effusion, dislocation, or subluxation.  Notably, the VA examiner observed that the Veteran could walk unaided.  Infrequent subjective reports of locking and subjective symptoms of giving way without any further elaboration as to frequency do not support a finding that a higher 20 percent evaluation is warranted for moderate instability under Diagnostic Code 5257.  Nor does this evidence establish that the Veteran warrants a 20 percent evaluation under Diagnostic Code 5258 for dislocated semilunar cartilage with frequent episodes of "locking," pain, and effusion into the joint.  Accordingly, from October 26, 2007 to January 21, 2009, the Veteran's right knee meniscus and ACL repair is no more than 10 percent disabling.  

From January 22, 2009, the Board finds that the Veteran' right knee meniscus and ACL repair does not warrant a higher than 30 percent evaluation.  Under the rating criteria, a 30 percent evaluation is the maximum allowable evaluation under Diagnostic Codes 5257 and 5260.  Based on the Veteran's current symptomatology, only a higher evaluation for limitation of extension would be available.  However, as of May 24, 2010, the Veteran already receives a separate 10 percent evaluation for limitation of extension for right knee DJD.  That evaluation is not currently on appeal, so consideration of a higher evaluation under Diagnostic Code 5261 is not appropriate.  Furthermore, prior to May 24, 2010, the evidence does not establish that the Veteran had any limitation of extension of the right knee.  Therefore, the Board concludes that the Veteran's right knee meniscus and ACL repair is no more than 30 percent disabling.  

The Board has also considered whether the Veteran is entitled to a separate evaluation for his right knee meniscus and ACL repair for limitation of flexion.  Separate ratings may be assigned for limitation of flexion and limitation of extension of the same knee.  Specifically, where a Veteran has both a compensable level of limitation of flexion and a compensable level of limitation of extension of the same leg, the limitations must be rated separately to adequately compensate for functional loss associated with injury to the leg.  VAOPGCPREC 9-04 (Sept. 17, 2004).  VA's General Counsel has also concluded that limitation of motion and instability of a knee may be rated separately; in other words, evaluation of knee dysfunction based on both limitation of motion and instability does not amount to pyramiding under 38 C.F.R. § 4.14.  See VAOPGCPREC 23-97 (July 1, 1997) and VAOPGCPREC 09-98 (August 14, 1998).  In this case, the evidence during the entire appeal period does not establish that the Veteran's right knee flexion was less than 110 degrees.  Therefore, there is no basis upon which to award a separate compensable evaluation for right knee meniscus and ACL repair based on limitation of flexion under Diagnostic Code 5260.  

Finally, based on the clinical findings at his May 2010 VA examination, the Board recognizes that the Veteran's right knee symptoms include frequent episodes of "locking," pain and effusion to the joint, which would qualify for a separate 20 percent evaluation under Diagnostic Code 5258.  However, in this case, the Veteran may not be granted a separate rating under Diagnostic Code 5258, as to do so would violate the regulatory rule against pyramiding.  Diagnostic Code 5258 contemplates limitation of motion, and as previously discussed above, the Veteran is already being compensated for limitation of extension under Diagnostic Code 5261.  

In summary, the Board finds that from October 26, 2007 to January 21, 2009, the preponderance of the evidence weighs against finding in favor of a higher than 10 percent evaluation for right knee meniscus and ACL repair.  Furthermore, from January 22, 2009, the preponderance of the evidence weighs against finding in favor of a higher than 30 percent evaluation for right knee meniscus and ACL repair.  Therefore, the benefit-of-the-doubt rule does not apply; and the higher evaluation claim must be denied.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

	Scars on Anterior and Lateral Right Knee

The Veteran's right knee scars has been currently evaluated as noncompensable, effective September 23, 2003, under 38 C.F.R. § 4.118, Diagnostic Code 7803, and 10 percent disabling, effective January 22, 2009, under 38 C.F.R. § 4.118, Diagnostic Code 7804.  

38 C.F.R. § 4.118 was amended in 2008.  See 73 Fed. Reg. 54,708 (Sept. 23, 2008) (effective Oct. 23, 2008).  The October 2008 revisions did not substantially change Diagnostic Codes 7800, 7801, 7802, and 7805.  The general rating criteria under these diagnostic codes remained intact after the October 2008 amendment of 38 C.F.R. § 4.118 with only slight revisions to the wording in each diagnostic code and the addition of Notes (4) and (5) to Diagnostic Code 7800.  The major revisions effectuated by the October 2008 amendment of 38 C.F.R. § 4.118 involved Diagnostic Codes 7803 and 7804.  

Under the pre-2008 rating criteria, superficial, unstable scars warranted a 10 percent evaluation under Diagnostic Code 7803.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2007).  An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  A superficial scar is one not associated with underlying soft tissue damage.  38 C.F.R. § 4.118, Diagnostic Code 7803 (2007).  The 10 percent rating is the only rating available under pre-2008 rating criteria under Diagnostic Code 7803.

Under the pre-2008 rating criteria, superficial scars, painful upon examination, warranted a 10 percent evaluation under Diagnostic Code 7804. 38 C.F.R. § 4.118 , Diagnostic Code 7804 (2007).  The 10 percent rating was the only rating available under pre-2008 rating criteria under Diagnostic Code 7804.  In the post-2008 rating criteria, Diagnostic Code 7804 is utilized to rate scars that are unstable or painful, subsuming Diagnostic Code 7803.  Under amended Diagnostic Code 7804, a 10 percent evaluation may be assigned where there are one or two scars that are unstable or painful; a 20 percent rating may be assigned where there are three or four scars that are unstable or painful; and a 30 percent rating may be assigned where there are five or more scars that are unstable or painful.  38 C.F.R. § 4.118, Diagnostic Code 7804 (2016).  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.  Note (2) to Diagnostic Code 7804 provides that if one or more scars are both unstable and painful, then 10 percent is added to the evaluation that is based on the total number of unstable or painful scars.  Note (3) to Diagnostic Code 7804 provides that scars evaluated under Diagnostic Code 7800, 7801, 7802, or 7805 may also receive an evaluation under this diagnostic code when applicable.

In the alternative, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are deep and nonlinear, are rated under Diagnostic Code 7801.  Note (1) provides that a deep scar is one associated with underlying soft tissue damage.  Under Diagnostic Code 7802, burn scar(s) or scar(s) due to other causes, not of the head, face, or neck, that are superficial and nonlinear, in an area or areas of 144 square inches (929 sq. cm.) or greater, warrant a 10 percent rating.  

For scars, other (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804, any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 are to be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805.

Based on a careful review of the subjective and clinical evidence, as detailed above, from October 26, 2007 to January 21, 2009, the Board finds that the Veteran's right knee scars do not warrant a compensable evaluation under either the pre-2008 or post-2008 rating criteria.  In other words, the evidence, during this relevant appeal period, does not demonstrate that the Veteran's right knee scars are painful, unstable, or have a total area greater than 39 square cm.  There were also no other symptoms related to his right knee scars identified.  Accordingly, the Veteran is not entitled to a compensable evaluation for his right knee scars from October 26, 2007 to January 21, 2009.  

In addition, from January 22, 2009, the Veteran's right knee scars do not warrant a higher than 10 percent evaluation.  The evidence demonstrates that the Veteran had one painful right knee scar (February 2009 VA examination).  The Veteran's two right knee scars were found to be stable, linear and superficial.  They also did not measure greater than 39 square cm.  Nor did the scars have any other disabling effects not considered under Diagnostic Codes 7801-7804.  Accordingly, the Board concludes that from January 22, 2009, the Veteran's right knee scars were no more than 10 percent disabling.  

In summary, the Board finds that from October 26, 2007 to January 21, 2009, the preponderance of the evidence weighs against finding in favor of a compensable evaluation for the Veteran's right knee scars.  In addition, from January 22, 2009, the preponderance of the evidence weighs against finding in favor of a higher than 10 percent evaluation for the Veteran's right knee scars.  Therefore, the benefit-of-the-doubt rule does not apply; and the higher evaluation claim must be denied.  38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

From October 26, 2007 to January 21, 2009, entitlement to an evaluation in excess of 10 percent for status post right knee meniscus and ACL repair is denied.

From January 22, 2009, entitlement to an evaluation in excess of 30 percent for status post right knee meniscus and ACL repair is denied.  

From October 26, 2007 to January 21, 2009, entitlement to a compensable evaluation for scars on anterior and lateral right knee is denied.

From January 22, 2009, entitlement to an evaluation in excess of 10 percent for scars on anterior and lateral right knee is denied.  



REMAND

In its May 2015 remand, the Board instructed the VA examiner to provide an etiological opinion as to whether it is at least as likely as not that the Veteran's psychiatric disorder is caused or aggravated by his service-connected right knee disability.  In a July 2015 VA opinion, the VA examiner opined that the Veteran's diagnosed cocaine use disorder and cocaine induced depressive disorder was less likely than not proximately due to or the result of the Veteran's service-connected right knee disability.  No opinion was provided that addressed whether the Veteran's psychiatric disorder was aggravated by a service-connected disability.  Secondary service connection is a two-part issue that involves an analysis of both causation and aggravation.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310 (2016).  Accordingly, the Board finds that the July 2015 VA examiner's opinion is both inadequate and did not substantially comply with the May 2015 remand instructions, therefore another remand is required.  See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  Notably, since the July 2015 VA examination, the Veteran has been service-connected for additional disabilities (degenerative joint disease of the lumbar spine and right hip arthralgia).  As such, on remand, consideration of secondary service connection should also address these disabilities.  

Moreover, the July 2015 VA examiner suggested that the Veteran may have other psychiatric disorders, other than cocaine use disorder or cocaine induced depressive disorder.  But, the VA examiner explained that another diagnosis could not be provided until the Veteran was completely drug free.  Accordingly, on remand, the Veteran should be afforded another VA examination to determine the nature and etiology of any current psychiatric disorder.  

With regard to the Veteran's service connection claim for a left hip disability, the Board, in its May 2015 remand, instructed the VA examiner to provide an opinion as to whether his left hip disability was caused or aggravated by his service-connected right knee disability.  At his July 2015 VA examination, the VA examiner did not provide a current left hip diagnosis, and thus no etiological opinion was provided.  The record shows that at his March 2008 VA examination, the Veteran was diagnosed with left hip subtrochanteric bursitis.  The July 2015 VA examiner failed to discuss this prior diagnosis.  Accordingly, the Board finds that the July 2015 VA examination is both inadequate and did not substantially comply with the May 2015 remand instructions, therefore another remand is required.  See Stegall v. West, 11 Vet. App. 268 (1998); Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).  

Finally, the Veteran testified at his April 2014 Board hearing that the record was missing service records for his periods of service in the U.S. Army Reserves from 1994, 1995, 1996, and 1997 when he participated in drills as a combat medic.  Currently, the claims file includes some service treatment records from 1993.  As these records may include potentially relevant information to his service connection claims, an attempt must be made to obtain these records on remand.  

Accordingly, the case is REMANDED for the following actions:

1.  Perform the necessary steps and contact the appropriate sources to obtain the following relevant federal records: 

a.  Verify all of the Veteran's periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the U.S. Army Reserves.  

b.  Contact the appropriate sources to obtain the Veteran's complete military personnel records and service treatment records for his periods of service with the U.S. Army Reserves, to include the periods from 1993 to 1997.  

c.  Obtain all of the Veteran's outstanding VA treatment records for his psychiatric disorder and left hip disability that are not currently of record.  

2.  After the above is completed, to the extent possible, schedule the Veteran for a VA psychiatric examination and a VA orthopedic examination by an appropriately qualified examiner.  Provide the examiner with the claims file, including a copy of this REMAND, for review.  

After a review of the claims file, the examiner should respond to the following: 

a.  Is it at least as likely as not (50 percent probability or greater) that any of the Veteran's current psychiatric disorders are etiologically related to his active duty service?  

b.  Is it at least as likely as not (50 percent probability or greater) that any of the Veteran's current psychiatric disorders were caused or, alternatively, aggravated (increased beyond the natural progression of the disability) by his service-connected right knee disability, lumbar spine disability, and/or right hip disability?  

c.  Is it at least as likely as not (50 percent probability or greater) that the Veteran's left hip disability was caused or, alternatively, aggravated (increased beyond the natural progression of the disability) by his service-connected right knee disability, lumbar spine disability, and/or right hip disability?  

In providing the above opinion, the VA examiner must address the Veteran's diagnosis for left hip subtrochanteric bursitis provided at his March 2008 VA examination.  

A complete rationale for any opinion expressed must be provided.  If an opinion cannot be expressed without resort to speculation, discuss why this is the case.  

3.  Then, readjudicate the claims.  If the benefits sought on appeal remain denied, in whole or in part, the Veteran and his representative should be provided a supplemental statement of the case.  Then, return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).




______________________________________________
LESLEY A. REIN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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