KNEE IMPAIRMENT OF

Summary

The Veteran, an Army Veteran who served from July 1998 to July 2002, appeals the denial of an increased rating for his service-connected right knee condition and right knee scar. The Board previously remanded these issues for additional development, including VA examinations. However, the Veteran failed to report for scheduled examinations in November 2022, June 2023, and June 2024. While the Veteran provided good cause for missing the November 2022 appointment due to a child's hospitalization, he failed to appear for subsequent scheduled examinations without providing good cause. The Board noted the Veteran's obligation to cooperate in developing his claim, citing Martinez v. Wilkie and Hilkert v. West. Due to the Veteran's failure to appear for necessary examinations, the Board denied the claim for an increased rating for the right knee condition as a matter of law, citing 38 C.F.R. § 3.655(b). For the right knee scar, the Veteran credibly reported pain, which was corroborated by his testimony and his spouse's testimony, despite a March 2017 VA examination noting the scar was not painful. The Board found the scar painful and applicable under Diagnostic Code 7804, warranting a 10 percent rating. However, the Board denied a rating in excess of 10 percent, as the evidence did not support a higher rating based on the single, painful, but not unstable scar.

Rationale

Failure to report for scheduled VA examinations; No good cause shown for failure to appear; Claim denied as a matter of law per 38 C.F.R. § 3.655(b)

Full Decision Text

Citation Nr: 25000983
Decision Date: 01/23/25	Archive Date: 01/23/25

DOCKET NO. 17-32 234
DATE: January 23, 2025

ORDER

Entitlement to a rating in excess of 10 percent for right knee condition is denied.  

Entitlement to an initial rating in excess of 10 percent for right knee scar is denied.  

FINDINGS OF FACT

1. The Veteran, without good cause, failed to appear for his scheduled VA examinations necessary to decide his claim for an increased rating for his right knee condition.  

2. The Veteran's right knee scar, associated with subcutaneous prepatellar bursitis with arthritis, is painful.    

CONCLUSIONS OF LAW

1. The appeal for a rating in excess of 10 percent for right knee condition is denied.  38 U.S.C. § 1155; 38 C.F.R. § 3.655(b).  

2. The criteria for a rating in excess of 10 percent for right knee scar have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.655(b), 4.1, 4.2, 4.7, 4.10, 4.118, Diagnostic Code 7804.    

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from July 1998 to July 2002.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO).  

In February 2021, the Veteran testified at a hearing before the undersigned Acting Veterans Law Judge.  

These matters were previously before the Board in June 2022 and December 2023 when they were remanded for additional development, including VA examinations.  

INCREASED RATING

Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability.  38 U.S.C. § 1155; 38 C.F.R. Part 4.

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.  

The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  A claimant may experience multiple distinct degrees of disability that may 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 (2007).  The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  

The rating of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14.  That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259 (1994).

1. Entitlement to a rating in excess of 10 percent for right knee condition is denied.  

Turning to the relevant laws and regulations, when a claimant, without showing good cause, fails to report for an examination scheduled in conjunction with a claim for an increased rating, the claim for an increased rating, the claim shall be denied.  See 38 C.F.R. § 3.655(b).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc.  38 C.F.R. § 3.655(a).  

If a claimant misses a scheduled examination, the Board must consider (1) whether the examination was necessary to decide the claim and (2) whether the veteran had good cause to miss the examination.  See Turk v. Peake, 21 Vet. App. 565, 569 (2008).  

In June 2022, the Board remanded this matter
 claim for an increased rating, the claim shall be denied.  See 38 C.F.R. § 3.655(b).  Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc.  38 C.F.R. § 3.655(a).  

If a claimant misses a scheduled examination, the Board must consider (1) whether the examination was necessary to decide the claim and (2) whether the veteran had good cause to miss the examination.  See Turk v. Peake, 21 Vet. App. 565, 569 (2008).  

In June 2022, the Board remanded this matter for a VA examination to determine the current nature and severity of his service-connected right knee condition, to evaluate his increased rating claim.  The examination was scheduled to occur in November 2022, but that examination was cancelled as the Veteran failed to report for the examination.  

In December 2022, the Veteran contacted the VA to reschedule his VA examination, providing good cause for missing his November 2022 appointment due to his child's hospitalization.  The Veteran was then scheduled for a new examination in June 2023, but that examination was also cancelled as the Veteran again failed to report for the examination.  

In June 2023, the RO sent a letter to the Veteran to see if the Veteran would be willing to attend a VA examination.  Subsequently, the RO denied the increased rating for the right knee condition in an August 2023 supplemental statement of the case.  

In December 2023, the Board remanded this matter for another VA examination to determine the current nature and severity of his service-connected right knee condition, to evaluate his increased rating claim.  The examination was scheduled to occur in June 2024, but that examination was cancelled as the Veteran was a no show.  

No statement has been submitted by the Veteran or on his behalf by his attorney reflecting that good cause has been shown for his failure and refusal to appear for the June 2023 and June 2024 VA examinations.  In addition, based on the lack of a contemporaneous examination to assess the severity of his right knee condition, an examination is necessary for a complete longitudinal picture of his disability.  In addition, in the December 2023 Board decision, the Board reminded the Veteran of the importance of attending examination to further adjudicate his issues on appeal.  

While the VA system is non-adversarial and pro-claimant, a veteran still has an obligation to assist in developing his or her claim.  See Turk v. Peake, 21 Vet. App. 565, 568 (2008).  

While the Board acknowledges the November 2024 Informal Hearing Presentation from the Veteran's accredited representative, here, the Veteran has failed to cooperate to acquire all of the information necessary to adjudicate his claim for increased rating.  The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate by appearing for an examination to support his claim. See Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("[t]he duty to assist is not always a one-way street.")); see also Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc).

In light of the foregoing, good cause has not been shown for the Veteran's failure to appear for the VA examinations and the claim for an increased rating for his right knee condition is denied as a matter of law.  See 38 C.F.R. § 3.655(b); see also Kyhn v. Shinseki, 24 Vet. App. 228, 238 (2011); Engelke v. Gober, 10 Vet. App. 396. 399 (1997).  Thus, the appeal is denied.  

2. Entitlement to an initial rating in excess of 10 percent for right knee scar is denied.  

In support of his claim, the Veteran credibly reported that his right knee scar was painful, tender and gets aggravated by his daily activities.  See February 2021 Board hearing transcript.  

When this matter was previously before the Board in December 2023, the Board remanded the claim for a VA examination to determine the current nature and severity of his service-connected right knee condition, to evaluate his increased rating claim.  As discussed above, the Veteran failed to report to his June 2023 and June 2024 VA examinations for his right knee condition including his right knee scar.  

To date, neither the Veteran, nor his representative
 Entitlement to an initial rating in excess of 10 percent for right knee scar is denied.  

In support of his claim, the Veteran credibly reported that his right knee scar was painful, tender and gets aggravated by his daily activities.  See February 2021 Board hearing transcript.  

When this matter was previously before the Board in December 2023, the Board remanded the claim for a VA examination to determine the current nature and severity of his service-connected right knee condition, to evaluate his increased rating claim.  As discussed above, the Veteran failed to report to his June 2023 and June 2024 VA examinations for his right knee condition including his right knee scar.  

To date, neither the Veteran, nor his representative have provided any good cause for not cooperating in scheduling the Veteran's examination for his right knee scar. Thus, the Veteran's claim for entitlement to a rating in excess of 10 percent for right knee scar shall be rated based on the evidence of record.  38 C.F.R. § 3.655(b).  

The latest VA examination in March 2017 shows that the Veteran has one scar that is 2.5 cm in length and 2.5 cm in width.  Additionally, the examiner state that the scar was not painful.  However, the Veteran and his spouse credibly testified that his right knee scar was painful and of continuous trouble in his daily activities.  See February 2021 Board hearing transcript.  Based on this, in the June 2022 Board decision, the Board found that the Veteran's right knee scar should be evaluated under Diagnostic Code 7804 and rated the Veteran's right knee scar as 10 percent disabling as the Veteran had one painful scar.  

In evaluating skin and scar residuals, the Board notes that during the appeal period, changes were made to certain Diagnostic Codes under 38 C.F.R. § 4.118. Effective August 13, 2018, VA amended its regulations governing skin disabilities. 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.83 Fed. Reg. 32592 (July 13, 2018). 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 are more favorable to the Veteran.  

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 is warranted for one or two scars that are unstable or painful.  A 20 percent rating is warranted for three or four scars that are unstable or painful.  A 30 percent rating is warranted for five or more scars that are unstable or painful. 

An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar.  In addition, 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.  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.

The Board notes that the Veteran is certainly competent to report pain.  Jandreau v. Nicholson, 492 F. 3d 1372, 1376077 (Fed. Cir. 2007).  The Board acknowledges the March 2017 VA examination wherein it is recorded that the right knee scarring is not painful.  However, given the Veteran's report of pain and symptoms discussed at the hearing, the Board finds that the evidence supports a 10 percent disability rating for the Veteran's right knee scar under Diagnostic Code 7804.  

However, as the only manifestation of the right knee scar is pain that affect daily activity as reported by the Veteran, the evidence is persuasively against finding that the manifestations more nearly approximate the criteria for a higher rating.  There is only one scar, and it is painful but not unstable.    As such, a 10 percent rating, and no higher, is warranted for the right knee scar.  A rating in excess of 10 percent is denied.  

While the Board again acknowledges the November 2024 Informal Hearing Presentation from the Veteran's accredited representative, here, the Veteran has failed to cooperate to acquire all of the information necessary to adjudicate his claim for increased rating.  The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate by appearing for an examination to
 by the Veteran, the evidence is persuasively against finding that the manifestations more nearly approximate the criteria for a higher rating.  There is only one scar, and it is painful but not unstable.    As such, a 10 percent rating, and no higher, is warranted for the right knee scar.  A rating in excess of 10 percent is denied.  

While the Board again acknowledges the November 2024 Informal Hearing Presentation from the Veteran's accredited representative, here, the Veteran has failed to cooperate to acquire all of the information necessary to adjudicate his claim for increased rating.  The Board is presented with a less-than-complete evidentiary picture, made so by the Veteran's failure to cooperate by appearing for an examination to support his claim. See Martinez v. Wilkie, 31 Vet. App. 170, 178 (2019) (quoting Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) ("[t]he duty to assist is not always a one-way street.")); see also Hilkert v. West, 12 Vet. App. 145, 151 (1999) (en banc).

 

N. Rippel

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	S. Nettles, 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.