Case A26040018

Summary

The veteran, who served from July 1974 to July 1977, appeals the denial of a compensable rating for a scar on his left knee, residual of a meniscectomy. The Board reviewed the evidence of record as of a December 16, 2024, decision, which had been subject to a higher-level review. The veteran sought an increased rating for the scar, which was denied by the agency of original jurisdiction in December 2024. The Board examined the criteria for rating scars under 38 C.F.R. § 4.118, specifically diagnostic codes 7801, 7802, 7804, and 7805. The Board found the November 2024 VA Scars/Disfigurement Disability Benefits Questionnaire persuasive, noting the scar measured 1 cm by 1 cm, was not painful or unstable, and did not cause functional impairment. The Board concluded that the evidence weighed against the claim, denying the compensable rating and stating the benefit-of-the-doubt rule did not apply. The case also involves a remand for entitlement to a rating in excess of 10 percent for left ankle disability and for entitlement to TDIU. The remand is due to duty to assist errors concerning the adequacy of the November 2024 VA Ankle Conditions DBQ, which did not discount the ameliorative effects of medication as required by Jones and Ingram.

Full Decision Text

Citation Nr: A26040018
Decision Date: 04/29/26	Archive Date: 04/29/26

DOCKET NO. 251222-617444
DATE: April 29, 2026

ORDER

A compensable rating for service-connected scar, residual of left knee meniscectomy, is denied. 

REMANDED

Entitlement to a rating in excess of 10 percent for service-connected achilles tendonitis of the left ankle (hereinafter left ankle disability) is remanded. 

Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. 

FINDING OF FACT

The Veteran's scar of the left knee, status post left knee meniscectomy, is not more nearly manifested by underlying soft tissue damage or cover an area or areas of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.); or not associated with underlying soft tissue damage, but cover an area or areas of 144 square inches (929 sq. cm.) or greater; or that is painful or unstable; or that cause limitation of function of the affected part. 

CONCLUSION OF LAW

The criteria for a compensable rating for service-connected scar, residual of left knee meniscectomy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7802.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1974 to July 1977. 

In January 2025, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a December 16, 2024, decision. On April 14, 2025, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior December 16, 2024, decision. 

In the December 2025 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the December 16, 2024, AOJ decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 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 of entitlement to a compensable rating for service-connected residual scar of the left knee, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. 

However, because the Board is remanding the claim of entitlement to a rating in excess of 10 percent for service-connected left ankle disability and entitlement to TDIU, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

Evaluations

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The 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. § 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 
, 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. § 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran's medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999).

Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous." Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev'd in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009).

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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3.

Entitlement to a compensable rating for scar of the left knee, residual of meniscectomy.

A January 2018, rating decision granted service connection for scar, residual of left knee meniscectomy, and assigned noncompensable rating, effective February 6, 2017. An October 2018 rating decision continued the noncompensable rating for scar left knee. Note that the rating decisions and codesheets reflect "scars" however, the medical evidence reflects a single scar of the left knee on October 2018 and November 2024 Scar/Disfigurement Disability Benefits Questionnaires (DBQs).

In August 13, 2024, VA received the Veteran's claim for increase; and a  December 16, 2024, rating decision denied the claim. In January 2025, the Veteran submitted  Form 20-0996 Higher Level Review request of that VA decision. An April 14, 2025 HLR decision denied the claim for a noncompensable rating for scar, left knee, This appeal arises from the Veteran's disagreement with that decision. See VA Form 10182 (December 2025). Thus, the rating review period begins on August 13, 2024, the date VA received his claim for increased rating, with a one year look back-and it ends on December 16, 2024, the date of the rating decision that was subject to HLR.

The Board
  December 16, 2024, rating decision denied the claim. In January 2025, the Veteran submitted  Form 20-0996 Higher Level Review request of that VA decision. An April 14, 2025 HLR decision denied the claim for a noncompensable rating for scar, left knee, This appeal arises from the Veteran's disagreement with that decision. See VA Form 10182 (December 2025). Thus, the rating review period begins on August 13, 2024, the date VA received his claim for increased rating, with a one year look back-and it ends on December 16, 2024, the date of the rating decision that was subject to HLR.

The Board concludes that the criteria for a compensable rating for scar, residual of left knee meniscectomy, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, DC 7802.

Scars are evaluated pursuant to DCs 7800, 7801, 7802, 7804, and 7805. 38 C.F.R. § 4.118. The Veteran's residual scar of the left knee is currently rated under DC 7802 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. 

DC 7801, 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 and cover 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. 38 C.F.R. § 4.118. DC 7802, 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, a 10 percent rating is assigned for an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118. DC 7804 provides compensable ratings for scars that are painful or unstable. 38 C.F.R. § 4.118. A 10 percent rating is provided for one or two scars that are unstable or painful. DC 7805 provides that other scars are to be rated on limitation of function of the affected part. 38 C.F.R. § 4.118.

Note (1) states that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. 38 C.F.R. § 4.118. Note (2) states that if one or more scars are both unstable and painful, 10 percent is to be added to the evaluation that is based on the total number of unstable or painful scars. Id. Note (3) states that scars evaluated under DCs 7800, 7801, 7802, or 7805 may also receive an evaluation under DC 7804, when applicable. Id.

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31.

The Board finds that the more persuasive evidence of record reflects that the Veteran's scar of the left knee, status post left knee meniscectomy, is not more nearly manifested by underlying soft tissue damage or cover an area or areas of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.); or not associated with underlying soft tissue damage, but cover an area or areas of 144 square inches (929 sq. cm.) or greater; or that is painful or unstable; or that causes limitation of function of the affected part. 

A November 2024 VA Scars/Disfigurement Disability Benefits Questionnaire (DBQ) reflects that the Veteran has single scar of the left knee that measures 1 cm. by 1 cm.,  for a combine total area of 1cm2 on his left knee. Evaluation reflects that the scar was not painful or unstable; or did not result in limitation of motion or functional impairment of the left knee. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms associated with residual scar of left knee. See C&P Exam at 2, 4, 6, and 9 (November 2024). There is no persuasive lay or medical evidence supporting that the scar of the left knee is painful or
 November 2024 VA Scars/Disfigurement Disability Benefits Questionnaire (DBQ) reflects that the Veteran has single scar of the left knee that measures 1 cm. by 1 cm.,  for a combine total area of 1cm2 on his left knee. Evaluation reflects that the scar was not painful or unstable; or did not result in limitation of motion or functional impairment of the left knee. There were no other pertinent physical findings, complications, conditions, signs and/or symptoms associated with residual scar of left knee. See C&P Exam at 2, 4, 6, and 9 (November 2024). There is no persuasive lay or medical evidence supporting that the scar of the left knee is painful or unstable. It defies belief that the Veteran would not have reported pain at his 2024 examination of the scar had it been painful. Further, the 2024 Scar DBQ shows that the scar did not impact the Veteran's ability to work, supporting that there was no functional impairment of the affected part due to scar.

On balance, the weight of the evidence is against the claim.

Accordingly, the claim is denied. As the evidence of record persuasively weighs against the claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (2021).

REASONS FOR REMAND

In remanding this matter, the Board makes no finding, implicit or otherwise, as to the credibility of the Veteran's assertions. Neither the Veteran's credibility nor any lack thereof should be presumed in this remand.

1. Entitlement to a rating in excess of 10 percent for service-connected left ankle disability is remanded. 

2. Entitlement to TDIU due to service-connected disabilities is remanded. 

A January 2018 rating decision granted service connection for Achilles tendonitis of the left ankle (left ankle disability and assigned an initial 10 percent rating effective December 31, 2013.

In August 2024, VA received the Veteran's claim for increase for left ankle disability and a TDIU. See VA Form 20-0995 (August 2024); VA 21-8940 (August 2024).

The Veteran has established service connection for the following disabilities: obstructive sleep apnea (50%); right knee patellar tendonitis with degenerative joint disease, limitation of flexion (20%); left knee degenerative arthritis, other than post traumatic, tendinitis with persistent instability (20%); left knee degenerative arthritis, other than post traumatic, tendinitis with limitation of flexion (10%); achilles tendonitis of the left ankle (10%); pseudofolliculitis barbae (0%); right knee limitation of extension (0%); and scar of the left knee (0%). His combined VA disability rating is 80% percent from August 13, 2024. See Rating Decision - Codesheet (April 2025).  

These matters are remanded to correct a duty to assist error that occurred prior to the April 2025 rating decision on appeal. 

VA's duty to assist claimants in the development of their claims includes obtaining an examination and/or opinion when necessary to decide the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Further, once an examination or opinion is obtained, VA must ensure that it is adequate. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that it is adequate).

Here, the November 2024 VA Ankle Conditions DBQ is inadequate for rating purposes because the range of motion (ROM) findings are not shown to have discounted the ameliorative effects of medication. Jones v. Shinseki, 23 Vet. App. 382, 389 (2010); cf. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). Under Jones v. Shinseki, 23 Vet. App. 382, 389 (2010), VA must discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use. More recently, the Court in Ingram v. Collins, 38 Vet. App. 130, 132 (2025), held that Jones applies to the evaluation of musculoskeletal conditions. Here, the November 2024 Ankle Conditions DBQ reflects that the Veteran reports symptoms of continued pain on and off over the years, with current symptoms of episodes of pain in the left ach
 (2010); cf. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). Under Jones v. Shinseki, 23 Vet. App. 382, 389 (2010), VA must discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use. More recently, the Court in Ingram v. Collins, 38 Vet. App. 130, 132 (2025), held that Jones applies to the evaluation of musculoskeletal conditions. Here, the November 2024 Ankle Conditions DBQ reflects that the Veteran reports symptoms of continued pain on and off over the years, with current symptoms of episodes of pain in the left achilles tendon that he treats with Tylenol as needed. See C&P Exam at 3 (November 2024). Given the Courts holding in Jones, and more recently, in Ingram, the Board is compelled to find that the November 2024 Ankle Conditions DBQ is inadequate for VA rating purposes. Thus, the AOJ had a duty to obtain retrospective findings that fully satisfy the requirements of Jones/Ingram. See Chotta v. Peake, 22 Vet. App. 80, 85-86 (2008) (discussing situations when it may be necessary to obtain a "retrospective" medical opinion to determine the date of onset or severity of a condition in years past; Vigil v. Peake, 22 Vet. App. 63 (2008) (holding that the duty to assist may include development of medical evidence through a retrospective medical evaluation where there is a lack of medical evidence for the time period being rated).  

Therefore, remand is necessary to correct the duty to assist errors on the part of the AOJ in satisfying its duties under 38 U.S.C. § 5103A, which occurred prior to the decision on appeal. See 38 C.F.R. § 20.802.

The duty to assist error attaches to the claim of TDIU as it is part-and-parcel of a claim for increase and inextricably intertwined with the outcome of the left ankle claim.  See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final Board decision cannot be rendered unless both are adjudicated).

The matters are REMANDED for the following action: 

Obtain retrospective findings from an appropriate clinician as to the Veteran's service-connected left ankle disability that supplement the November 2024 Ankle Conditions DBQ. 

If it is not possible to provide a specific measurement without speculation, the clinician must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training).

In rendering the below, the clinician should estimate the effective ROM for the disability and present the results of ROM tests in a written report which complies with 38 C.F.R. § 4.59 by recording separate sets of the ROM test results for both active and passive motion, and in weightbearing and non-weightbearing.

(a.) For the November 2024 DBQ, provide separate estimates as to the amount in degrees of ROM lost due to pain in both weightbearing and non-weight bearing positions, and on both active and passive motion based on the evidence of record and the Veteran's statements and without considering the ameliorative effects of his medications.

(b.) For the November 2024 DBQ, provide separate estimates as to the amount in degrees of ROM due to repeated use overtime experienced by the Veteran based on the evidence of record and the Veteran's statements and without considering the ameliorative effects of his medications.

 

C.A. SKOW

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Kenney, K.A.

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.