Citation Nr: 0814054 Decision Date: 04/29/08 Archive Date: 05/08/08 DOCKET NO. 06-03 470 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for residuals of a left quadriceps muscle tear. 2. Entitlement to service connection for short leg syndrome. ATTORNEY FOR THE BOARD M. Riley, Associate Counsel INTRODUCTION The veteran served on active duty from March 1992 to March 1993, June 1996 to March 1997, and from March 2002 to June 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a October 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania, which, in pertinent part, granted service connection for residuals of a left quadriceps muscle tear with a noncompensable rating, effective June 11, 2004, and denied entitlement to service connection for short leg syndrome. In a December 2005 rating decision, the veteran was awarded a 10 percent rating for residuals of the left quadriceps muscle tear, effective June 11, 2004. A veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the claim for a higher initial rating remains before the Board. The veteran's December 2005 notice of disagreement also initiated an appeal with respect to the issue of entitlement to service connection for sacroiliac joint dysfunction with low back pain. Service connection for this disability was granted in a December 2005 rating decision. This constitutes a full grant of the benefits on appeal. FINDINGS OF FACT 1. Residuals of a left quadriceps muscle tear are manifested by a muscle injury that more nearly approximates moderate than moderately-severe and no more than mild incomplete paralysis of the left anterior crural nerve. 2. The veteran does not have short leg syndrome. CONCLUSIONS OF LAW 1. The schedular criteria for a rating in excess of 10 percent for muscle injury residuals of a left quadriceps muscle tear have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.7, 4.14, 4.55, 4.56, 4.73, Diagnostic Code 5314 (2007). 2. Short leg syndrome was neither incurred in nor aggravated by active service. 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007) redefined VA's duty to assist the veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Under the VCAA, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in her possession that pertains to the claim. Pelegrini v. Principi (Pelegrini II), 18 Vet. App. 112, 120-21 (2004), see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). In a letter issued in January 2005, prior to the initial adjudication of the claims, the RO notified the veteran of the evidence needed to substantiate her claims for entitlement to service connection. The letter also satisfied the second and third elements of the duty to notify by informing the veteran that VA would try to obtain medical records, employment records, or records held by other Federal agencies, but that she was nevertheless responsible for providing any necessary releases and enough information about the records to enable VA to request them from the person or agency that had them. With respect to the fourth element of VCAA notice, the January 2005 letter contained a notation that the veteran should submit any evidence in her possession pertinent to the claims on appeal. The veteran has substantiated her status as a veteran and was notified of the second and third elements of the Dingess notice by the January 2005 letter. While she did not receive information regarding the effective date or disability rating elements of her claims until March 2008, the claims are being denied, no disability rating or effective date will be assigned. Therefore, she is not prejudiced by the delayed notice on these elements. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the veteran has been prejudiced thereby). With respect to the veteran's appeal for an increased rating, it arises from disagreement with the initial evaluation following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Duty to Assist The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has obtained records of treatment reported by the veteran, including service medical records, records from various federal agencies, and private medical records. Additionally, the veteran was provided a proper VA examination in August 2005 in response to her claims. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The appeal is thus ready to be considered on the merits. Increased Rating Claim Legal Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7 (2007). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2007). In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Evaluation of injury includes consideration of resulting impairment to the muscles, bones, joints and/or nerves, as well as the deeper structures and residual symptomatic scarring. See 38 C.F.R. §§ 4.44, 4.45 (2007). Muscle Group (MG) damage is categorized as mild, moderate, moderately severe, and/or severe, and evaluated accordingly. 38 C.F.R. § 4.56 (2007). Thirty-eight C.F.R. § 4.55(a) provides that 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. The provisions of 38 C.F.R. § 4.56, as applicable to the pending claim, are as follows: (b) A through-and-through injury with muscle damage shall be evaluated 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 Code 5301 through Diagnostic Code 5323, disabilities resulting from muscle injuries shall be classified as follows: (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. Disability involving a neurological disorder is ordinarily to be rated in proportion to the impairment of motor, sensory, or mental function. When the involvement is wholly sensory, the rating should be for the mild, or, at most, the moderate degree. 38 C.F.R. §§ 4.120, 4.124a (2007). In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. In Fenderson, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the initial evaluation period. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background Service treatment records show that the veteran incurred a contusion to the left quadriceps muscle in a bicycle accident in July 2002. As a result, she experienced weakness of the left thigh, and reduced range of motion of the left leg and knee. The veteran underwent several months of physical therapy. At her March 2004 Medical Board examination, she reported having increased pain in her left lower extremity, loss of sensation over the left foot, and hypersensitivity over the left thigh. A December 2003 electromyographic (EMG) examination was negative for evidence of nerve impairment in the left lower extremity. The examiner noted that as a result of the accident, the veteran incurred a left quadriceps muscle belly tear. She did not have a quadriceps tendon tear and there was no evidence of hip dislocation. Clinical examination of the veteran showed full strength and reflexes in the bilateral lower extremities. There was hyperesthesia on the lateral aspect of the left thigh and decreased sensation over the left shin and foot. Muscle bulk of the left lower extremity was normal. Active range of motion of the left knee and hip was full. X-rays were normal. The veteran was provided a VA examination in August 2005. She reported left leg and bilateral hip pain, as well as numbness in the left leg and foot with involuntary movements or left leg jerks. She stated that walking, standing, and sitting increased her left leg and hip pain. She reported flare-ups on a daily basis with pain escalating to a 5 or 6 out of 10. The veteran complained of tenderness in the left lateral quadriceps with weakness and stiffness. She also stated that her knee was unstable and would lock. Physical examination showed an indentation in the left lateral quadriceps muscle. Sensation and vibratory sensation was intact to monofilament testing in both feet with the exception of the left great toe. Reflexes were full and strength was 3/5 for the left lower extremity. There was pain in the lateral quadriceps with left knee range of motion. Flexion of the left knee was to 120 degrees with 0 degrees extension. Following range of motion testing of all affected joints, the examiner found that there was no increased weakness with repetitive range of motion, although a minimal increase in pain was noted upon repetition when testing the knee. X-rays of the hips, left knee, femur, tibia, fibular, and foot were normal. The diagnoses were left quadriceps muscle tear with sacroiliac joint dysfunction, low back pain with myofascial pain, and left lateral femoral cutaneous syndrome. The examiner noted that the lateral femoral cutaneous nerve might be compressed or stretched at the iliac spine causing pain, paresthesias, and decreased sensation over the lateral thigh. There was no motor involvement or loss of patellar reflex. The examiner also noted that the veteran had complaints of myofascial pain with normal X-rays and MRI. The veteran was noted to walk with a cane and pronounced limp and to have pain that significantly impaired her life. Records of treatment from the VA Medical Center (VAMC) show that the veteran was treated for chronic back and leg pain from a pinched nerve. In November 2005, she had a normal motor and sensory examination of the lower extremities. During a March 2006 examination, the veteran's extremities were found to have optimum muscle tone and full range of motion in all joints. Analysis The veteran is currently in receipt of a 10 percent rating under Diagnostic Code 5314 pertaining to Muscle Group XIV. This Diagnostic Code rates moderate muscle injuries as 10 percent disabling and moderately-severe muscle injuries as 30 percent disabling. The Board finds that an increased rating is not warranted for the veteran's disability under 38 C.F.R. § 4.73, as any current muscle damage most nearly approximates moderate rather than moderately-severe. The medical evidence establishes that the veteran has been found to have an indentation in the left lateral quadriceps muscle, as well as hyperesthesia on the lateral aspect of the left thigh and decreased sensation over the left shin and foot. While service treatment records show that the veteran was treated for a contusion to the left quadriceps, there is no evidence of a deep penetrating wound or hospitalization following the veteran's injury. In addition, while there are complaints and some objective indications of muscle weakness, specifically from the August 2005 VA examination, strength of the left lower extremity was full at the March 2004 Medical Board examination and X-rays and range of motion of the various affected joints have been consistently normal. The record does not establish consistent complaints of the cardinal signs and symptoms of muscle disability other than weakness, and there is no evidence of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Furthermore, while the veteran was noted to have significant impairment to her life due to her left leg and back pain, the Board notes that tests of strength and endurance have not shown positive evidence of impairment due to her muscle injury. In fact, the August 2005 VA examiner found that there was no increase to weakness, endurance, or incoordination following repetitive range of motion testing of the left leg and hips. Therefore, the Board finds that the veteran's muscle impairment from her residual quadriceps muscle injury has not most nearly approximated moderate and an increased rating is not warranted. While the most recent examination yielded findings of possible anterior crural nerve (femoral) impairment, this nerve involves functions that overlap those controlled by Muscle Group XIV. According to Diagnostic Code 5314, Muscle Group XIV controls functions of the knee and hip. According to Diagnostic Code 8526, involves function of the quadriceps, which is located in the thigh and involves function of the hip and knee. The provisions of 38 C.F.R. § 4.55(a) would preclude separate evaluations for the muscle and nerve impairment. The evidence establishes the presence of no more than mild incomplete paralysis of the left lower extremity throughout the evaluation period. The veteran has complained of loss of sensation in her left leg and at the August 2005 VA examination, sensation was not intact over the left great toe with monofilament testing. The recent examiner noted that the lateral femoral cutaneous nerve might be compressed causing decreased sensation over the lateral thigh. There was no motor involvement or loss of patellar reflex. All of the findings have been subjective, and the negative EMG casts doubt on the examiner's opinion that there is nerve impairment. Accepting the examiner's opinion, there is no basis for finding more than mild incomplete paralysis. Such impairment would not warrant more than the current 10 percent rating. Hence, nerve impairment could not serve as the basis for an increased rating. The Board has considered whether there is any other schedular basis for granting higher ratings, but has found none. In addition, the Board has considered the doctrine of reasonable doubt but has determined that it is not applicable to this period because the preponderance of the evidence is against the claim. Under the provisions of 38 C.F.R. § 3.321(b) (2007), in exceptional cases an extraschedular evaluation can be provided in the interest of justice. The governing norm in such a case is that the case presents such an unusual or exceptional disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impracical the application of regular schedular standards. In this case marked interference with employment has not been shown and the veteran's disability has not required any periods of recent hospitalization. Service Connection Claim Legal Criteria Service connection will be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third Shedden/Caluza element is through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007); see Savage 10 Vet. App. 488, 495-97 (1997); see also Clyburn v. West, 12 Vet. App. 296, 302 (1999). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage, 10 Vet. App. at 495-96; see Hickson, 12 Vet. App. at 253 (lay evidence of in-service incurrence sufficient in some circumstances for purposes of establishing service connection); 38 C.F.R. § 3.303(b). Lay persons are not competent to opine as to medical etiology or render medical opinions. Barr v. Nicholson; see Grover v. West, 12 Vet. App. 109, 112 (1999); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Lay testimony is competent, however, to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet); Espiritu, 2 Vet. App. at 494- 95 (lay person may provide eyewitness account of medical symptoms). "Symptoms, not treatment, are the essence of any evidence of continuity of symptomatology." Savage, 10 Vet. App. at 496 (citing Wilson v. Derwinski, 2 Vet. App. 16, 19 (1991). Once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno, supra (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2007). With chronic diseases shown as such in service, or within the presumptive period after service, so as to permit a finding of service connection, subsequent manifestation of the same chronic disease at any later date, however remote, are service connected unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Analysis The veteran contends that she incurred short leg syndrome as a result of a bicycle accident during service in July 2002. Service connection requires competent evidence showing the existence of a present disability. Shedden, 381 F.3d at 1163, 1167; see also Caluza, 7 Vet. App. at 498. With respect to the veteran's contentions that she has short leg syndrome, the Board finds that evidence of record is against a finding that there is a current disease or disability. Service treatment records show that the veteran fell off her bike in July 2002 in order to avoid being hit by a car. She incurred a contusion to the left quadriceps muscle. In March 2003, she began physical therapy for a quadriceps tear. Her doctor noted a relative leg length discrepancy of the lower extremities resulting in an altered gait pattern. In September 2003, her physical therapist diagnosed short leg syndrome of the left lower extremity. However, in December 2003, her leg lengths were found to be equal. Prior to her separation from active duty service, the veteran was provided a March 2004 examination by the Medical Board. Upon clinical examination, the examiner found that there was no palpable defect within the lateral aspect of the left thigh and no leg length discrepancy. The diagnosis was left lower extremity pain. The post-service medical evidence of record is negative for findings of short leg syndrome. Upon VA examination in August 2005, the veteran reported that she had been told by her physical therapist that her left leg was shorter than the right. Upon physical examination, the examiner found that there was no leg length discrepancy. In addition, records of outpatient treatment at the VAMC do not show that the veteran has been found to have a leg length discrepancy. While there is some evidence that the veteran had short leg syndrome, as shown by the diagnosis of this condition in September 2003. Both the Medical Board and VA examiner have determined that the veteran does not currently have a leg length discrepancy. To satisfy the requirement for a current disability, the evidence must show the condition at the time of the claim for service connection as opposed to some time in the past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Board is also mindful of the veteran's statements and testimony regarding her lower extremities. While a leg length discrepancy may be a condition observable by a lay person; the observations by medical professionals are more probative than those of the veteran. The medical professionals have greater expertise than the veteran in determining whether a leg length discrepancy is present, and are in agreement. The Board therefore finds that the balance of the evidence establishes that the veteran does not have short leg syndrome. Absent a finding of a current disability, a necessary element for service connection is not shown. Accordingly, the Board must conclude that the preponderance of the evidence is against the claim. ORDER An initial rating in excess of 10 percent for residuals of a left quadriceps muscle tear is denied. Entitlement to service connection for short leg syndrome is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs