Citation Nr: 18131204
Decision Date: 08/31/18	Archive Date: 08/31/18

DOCKET NO. 14-28 668A
DATE:	August 31, 2018
ORDER
Entitlement to an increased rating for postoperative compartment syndrome (Muscle Groups XI and XII), left lower extremity, currently evaluated as 20 percent disabling is denied.
Entitlement to an increased rating for postoperative compartment syndrome (Muscle Groups XI and XII), right lower extremity, currently evaluated as 20 percent disabling is denied.
Entitlement to a 10 percent rating for an unstable scar of the right leg, effective January 29, 2018, is granted.
FINDINGS OF FACT
1. The Veteran’s postoperative compartment syndrome (Muscle Groups XI and XII), left lower extremity, is no more than moderately severe.
2. The Veteran’s postoperative compartment syndrome (Muscle Groups XI and XII), right lower extremity, is no more than moderately severe.
3. From January 29, 2018, the evidence shows one unstable scar of the right leg.
CONCLUSIONS OF LAW
1. The criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran’s service-connected postoperative compartment syndrome (Muscle Groups XI and XII), left lower extremity have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Codes 5311-5312.
2. The criteria for entitlement to a disability evaluation in excess of 20 percent for the Veteran’s service-connected postoperative compartment syndrome (Muscle Groups XI and XII), left lower extremity have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Codes 5311-5312. 
3. From January 29, 2018, the criteria for a 10 percent evaluation for an unstable scar of the right leg have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.118 and Code 7804.
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Board notes that in addition to his increased rating claims, the Veteran sought a total disability rating based on individual unemployability (TDIU).  The claim was denied by the RO in the February 2012 rating decision, which is the subject of this appeal.  The TDIU was granted by way of a March 2015 rating decision.  The effective date of the TDIU was August 20, 2014.  The Veteran disagreed with the effective date.  The RO then issued an October 2016 rating decision in which it granted an effective date of August 29, 2011 for the TDIU.  This is the date of the original increased rating claim.  This constitutes a full grant of the issue and thus it is not before the Board.  The Veteran did not dispute this effective date and did not render testimony on this issue at his May 2017 Board hearing.
At the Veteran’s May 2017 Board hearing, he raised the issue of entitlement to a separate rating for blood clots in his legs.  The issue has not been adjudicated by the Agency of Original Jurisdiction (AOJ).  Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action.  
The Board also notes that in an April 2018 rating decision, the RO adjudicated the issues of entitlement to service connection for right and left lower extremity peripheral neuropathy.  In the absence of a notice of disagreement, statement of the case, and substantive appeal, the Board does not have jurisdiction over the issues. 
Increased Ratings
Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the 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 evaluations shall be applied, the higher evaluation 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.  
In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition.  Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991).  However, 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 (2007).  The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods.  
Injuries to muscle group XI are rated under 38 C.F.R. § 4.73, Diagnostic Codes 5311. These muscles include the posterior and lateral crural muscles and muscles of the calf, including the triceps surae (gastrocnemius and soleus), tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus, popliteus, and plantaris. The functions of these muscles are propulsion, plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. 38 C.F.R. § 4.73, DC 5311.
Diagnostic Code 5312 pertains to impairment of Muscle Group XII, which includes muscles of the leg.  The function of this muscle group is dorsiflexion of the toes and stabilization of the arch.  38 C.F.R. § 4.73, Diagnostic Code 5312. 
Under Diagnostic Codes 5311 and 5312, a 10 percent rating is warranted for moderate injury. A 20 percent disability rating is assigned when the disability is moderately severe. A maximum schedular evaluation of 30 percent is in order when the disability is severe.  38 C.F.R. § 4.73, Diagnostic Codes 5311-5312.
A muscle injury rating will not be combined with a peripheral nerve paralysis rating of the same body part, unless the injuries affect entirely different functions. There will be no rating assigned for muscle groups which act upon an ankylosed joint, except for an ankylosed knee, if muscle group XIII is disabled (rated at the next lower level than would otherwise be assigned), and an ankylosed shoulder, if muscle groups I and II are severely disabled (evaluation under diagnostic code 5200 will be elevated to the level for unfavorable ankylosis, if not already assigned, but the muscle groups will not be rated). The combined rating of muscle groups acting upon a single unankylosed joint must be lower than the rating for unfavorable ankylosis of that joint, except in the case of muscle groups I and II acting upon the shoulder. For compensable muscle group injuries that are in the same anatomical region but do not act on the same joint, the rating for the most severely injured muscle group will be increased by one level and used as the combined rating for the affected muscle groups. For muscle group injuries in different anatomical regions that do not act upon ankylosed joints, each muscle group injury shall be separately rated and the ratings combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.55.
Muscle injuries are evaluated in accordance with 38 C.F.R. § 4.56. The pertinent provisions of 38 C.F.R. § 4.56 are as follows:
(a) An open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal.
(b) A through-and-through injury with muscle damage shall be rated as no less than a moderate injury for each group of muscles damaged.
(c) For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement.
(d) Under Diagnostic Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe as follows:
(1) Slight disability of muscles-(i) Type of injury. Simple wound of muscle without debridement or infection. (ii) History and complaint. Service department record of superficial wound with brief treatment and return to duty. Healing with good functional results. No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section. (iii) Objective findings. Minimal scar. No evidence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue.
(2) Moderate disability of muscles--(i) Type of injury. Through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection. (ii) History and complaint. Service department record or other evidence of in-service treatment for the wound. Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. (iii) Objective findings. Entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side.
(3) Moderately severe disability of muscles--(i) Type of injury. Through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Entrance and (if present) exit scars indicating track of missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with sound side. Tests of strength and endurance compared with sound side demonstrate positive evidence of impairment.
(4) Severe disability of muscles--(i) Type of injury. Through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. (ii) History and complaint. Service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. Ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function.
If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56.
Turning to the evidence in this case, the Veteran underwent a VA examination in December 2011.  The examiner noted that there was no penetrating muscle injury, such as a gunshot or shell fragment wound (SFW).  The Veteran reported constant and increasing pain in his legs.  He tried working in the past but had difficulty with swelling in his leg.  He stated that he had not worked since 2008.  He was able to perform activities of daily living.  Upon examination, the examiner found that the injuries did not affect muscle substance or function.  The examiner noted that the disabilities were manifested by occasional weakness; and consistent fatigue/pain.  There was no loss of power; lowered threshold of fatigue; impairment of coordination; or uncertainty of movement.  Muscle strength testing was 4/5 bilaterally for both muscle groups (XI and XII).  There was no atrophy.  The Veteran did not use any assistive devices.  There was no x-ray evidence of retained metallic fragments.  There was no diminished muscle excitability to pulsed electrical current.  There were no scars that were painful, unstable, or that caused functional impact.  
The Veteran underwent another VA examination in June 2014.  Once again, the examiner noted that the Veteran did not have a penetrating muscle injury, such as a gunshot or SFW.  The Veteran continued to complain of pain and swelling in the lower extremities.  Upon examination, the examiner found that the injuries did not affect muscle substance or function.  The examiner noted that the disabilities were manifested by consistent weakness; and consistent fatigue/pain.  There were no findings regarding loss of power; lowered threshold of fatigue; impairment of coordination; or uncertainty of movement.  Muscle strength testing remained 4/5 bilaterally for both muscle groups (XI and XII).  There was no atrophy.  The Veteran did not use any assistive devices.  There was no x-ray evidence of retained metallic fragments.  The examiner found that the muscle injuries did not impact the Veteran’s ability to work.  There were no scars that were painful, unstable, or that caused functional impact.  The scars were described as well healed with hyperpigmentation.  
Next, the Veteran underwent a VA examination in July 2016.  He continued to report pain, discomfort and swelling in bilateral lower extremities not related to activities.  He stated that his symptoms were exacerbated with prolonged standing, squatting, weight-bearing, walking, and sitting. He also reported intermittent numbness in both lower extremities.  Examination findings were consistent with the June 2014 examination.  Once again, the disabilities were manifested by consistent weakness; and consistent fatigue/pain.  The examiner found that the injuries did not affect muscle substance or function.  Muscle strength testing remained 4/5 bilaterally for both muscle groups (XI and XII).  There was no atrophy.  The Veteran did not use any assistive devices.  Scars were noted to be minimal, with very slight hypo-pigmentation.  There was no additional disability as the result of scars.  
The examiner noted that a September 2012 muscle biopsy of the right gastrocnemius showed mixed patterns consisting of significant chronic myopathy with necrotizing myositis, as well as probable denervation atrophy.  Considering the age of the patient and significant myopathic changes, muscular dystrophy could not be ruled out.
The Veteran underwent yet another VA examination in January 2018.  The examiner noted that the Veteran’s disability worsened over time, “now improved.”  The Veteran reported that his legs swell and burn if seated, walking, or standing too long.  He also reported pain in his legs at night.  He stated that this had been going on for 10 years and that they hurt the more he does.  Upon examination, the examiner found that the injuries did not affect muscle substance or function.  The disabilities were not manifested by weakness; fatigue/pain; loss of power; lowered threshold of fatigue; impairment of coordination; or uncertainty of movement.  Muscle strength testing was 5/5 bilaterally for both muscle groups (XI and XII).  There was no atrophy.  The Veteran did not use any assistive devices.  
Examination of the Veteran’s scars revealed that the right leg scar bothered him.  He stated that there was some itching and that he felt air when he pushed on it.  There were no painful scars. The right leg scar was described as unstable, with frequent loss of skin covering.  The examiner noted that the skin often would peel off.  There was no additional disability as the result of scars.  It is noted that noncompensable ratings are already in effect for scars on each leg.  However, as the most recent VA examination showed a scar of the right leg to be unstable, the Board finds that a 10 percent evaluation is warranted effective January 29, 2018.  As less than 3 scars are either unstable or painful, the next-higher 20 percent rating is not warranted.  This conforms with the criteria under Diagnostic Code 7804.  There is no basis for a higher evaluation for any other the scars, including consideration of the characteristics of disfigurement under Diagnostic Code 7800.    
The Board notes that in order to warrant ratings in excess of 20 percent, the Veteran’s muscle disabilities would have to be severe in degree.  Severe muscle injuries are typically manifested by through and through or deep penetrating wounds due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring.  None of the four VA examination reports (nor the outpatient treatment reports) reflect that any of these criteria are met.  Additionally, service treatment records do not reflect hospitalization for a prolonged period for treatment of wound.  Finally, there are no objective findings of ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track.  There is no indication of loss of deep fascia or muscle substance, or soft flabby muscles in wound area.  The Veteran has reported swelling of the legs.  However, tests of strength, endurance, or coordinated movements fail to indicate severe impairment of function.
For the foregoing reasons, the Board finds that the criteria for a rating in excess of 20 percent have not been met for the muscle injuries of either leg.  As the preponderance of the evidence is against this claim, the benefit-of-the-doubt doctrine does not apply, and the claim for increased ratings in excess of 20 percent for postoperative compartment syndrome (Muscle Groups XI and XII), left and right lower extremities must be denied.  See Gilbert v. Derwinski, 1 Vet. App 49 (1990).  However, a 10 percent rating for an unstable scar of the right lower extremity is warranted from January 29, 2018.

 
Eric S. Leboff
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	M. Prem, Counsel 

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