Citation Nr: 1318168 Decision Date: 06/04/13 Archive Date: 06/11/13 DOCKET NO. 06-23 921 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a compensable initial rating for bilateral lower extremity fasciotomy. 2. Entitlement to a compensable initial rating for muscle herniation with partial paresis of the superficial nerve of the left lower extremity. 3. Entitlement to a compensable initial rating for muscle herniation with partial paresis of the superficial nerve of the right lower extremity. REPRESENTATION Appellant represented by: Joon H. Sung, Attorney at Law ATTORNEY FOR THE BOARD L. Barstow, Counsel INTRODUCTION The Veteran had active military service from September 1990 to September 1994. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2005 and June 2012 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. A Board decision in July 2008 denied an initial compensable rating for bilateral lower extremity fasciotomy. The Veteran thereafter appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In a Memorandum Decision dated in March 2010, the Court vacated the Board's denial of this initial rating claim and remanded the case for readjudication in accordance with the decision. In September 2010, the case was remanded to obtain additional treatment records and afford the Veteran new VA examinations. Review of the record indicates substantial compliance. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Following the requested development, the RO issued a rating decision dated in June 2012 granting service connection for muscle herniation with partial paresis of the superficial nerve of the left and right lower extremities with zero percent evaluations assigned to each lower extremity effective the date of the Veteran's original claim, June 4, 2004. A statement from the representative received in July 2012 expressed disagreement with the disability evaluations assigned to the muscle herniations. The issues of initial compensable ratings for muscle herniation with partial paresis of the superficial nerve of the left and right lower extremities being remanded are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The bilateral lower extremity fasciotomy resulted in scars that do not involve an area exceeding 6 square inches (39 sq. cm.) and are either deep or caused limited motion, are not superficial affecting an area exceeding 144 square inches (39 sq. cm.), are not unstable or painful on examination, and do not cause limitation of function of the affected part; and has not caused orthopedic, muscle or neurologic disabilities other than the already service-connected muscle herniation with partial paresis of the superficial nerve of the left and right lower extremities. CONCLUSION OF LAW The criteria for an initial compensable rating for bilateral lower extremity fasciotomy have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.118 Diagnostic Codes (DCs) 7801, 7802, 7803, 7804, 7805 (2008). REASONS AND BASES FOR FINDING AND CONCLUSION I. The Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). The VCAA notice 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; and (3) that the claimant is expected to provide. VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board notes that the Veteran's claim for a higher rating for bilateral lower extremity fasciotomy arises from his disagreement with the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional 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). Regardless, a March 2006 letter informed the Veteran of the criteria for assigning a disability rating and an effective date. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), post-service medical records and also secured examinations in furtherance of his claim. Pertinent VA examinations were obtained in January 2005, May 2006, December 2010, January 2011, March 2011 and April 2011. 38 C.F.R. § 3.159(c)(4). The VA examinations obtained in this case are sufficient, as the examiners conducted complete examinations, recorded all findings considered relevant under the applicable diagnostic codes, and considered the full history of the disability. The Board's September 2010 remand requested that a VA joints examination be accorded to the Veteran. However, an April 2011 VA muscle examiner indicated that as the Veteran had no joint complaints, a joints examination was not necessary. Consequently, a joints examination was not obtained. The Board finds that VA's duty to assist the Veteran with respect to obtaining a VA examination concerning the issue adjudicated herein has been met. 38 C.F.R. § 3.159(c)(4). VA has no duty to inform or assist that was unmet. The Veteran has not identified any additional pertinent medical records that have not been obtained and associated with the claims folder. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4. The Board determines the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where there is a question as to which of two ratings should 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. The Court has indicated that a distinction must be made between a Veteran's dissatisfaction with original ratings and dissatisfaction with determinations on later filed claims for increased ratings. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Consequently, the Board will evaluate the Veteran's bilateral lower extremity fasciotomy disability as a claim for a higher evaluation of the original award. Also, when an original rating is appealed, consideration must be given as to whether an increase or decrease is warranted at any time since the award of service connection, a practice known as "staged" ratings. Id. This service-connected disability is rated as zero percent or noncompensably disabling under 38 C.F.R. § 4.118, DC 7804, which evaluates impairment from superficial scars painful on examination. The Board notes amendments were made to the rating criteria for skin, effective October 23, 2008. See 73 Fed. Reg. 54,708 (Sept. 23, 2008). However, because the Veteran's claim was pending before October 23, 2008, and no request was made for consideration of this issue under the revised criteria (38 C.F.R. § 4.118, after October 23, 2008), this issue will only be evaluated under the rating criteria in effect prior to October 23, 2008. Id. See also 38 C.F.R. § 4.118. Pursuant to the criteria for rating skin disabilities effective prior to October 23, 2008, scars other than the head, face, or neck, that are deep, or that cause limitation of motion warrant a 10 percent evaluation if they involve area or areas exceeding 6 square inches (39 sq. cm.). 38 C.F.R. § 4.118, DC 7801 (2008). A 20 percent evaluation is warranted for area or areas exceeding 12 square inches (77 sq. cm.). Id. Scars other than the head, face, or neck, that are superficial, and do not cause limitation of motion only warrant a 10 percent evaluation if they involve areas of 144 square inches or greater. 38 C.F.R. § 4.118, DC 7802 (2008). Note (2) which follows shows that a superficial scar is one not associated with underlying soft tissue damage. Id. Superficial scars which are unstable where, for any reason, there is frequent loss of covering of the skin over the scar, warrant a 10 percent evaluation. 38 C.F.R. § 4.118, DC 7803 (2008). Scars which are superficial and painful on examination warrant a 10 percent evaluation. 38 C.F.R. § 4.118, DC 7804 (2008). Other scars that cause limitation of function of affected part are to be rated on limitation of function of affected part. 38 C.F.R. § 4.118, DC 7805 (2008). The Board observes that under VA regulations, separate disabilities arising from a single disease entity are to be rated separately. See 38 C.F.R. § 4.25; see also Esteban v. Brown, 6 Vet. App. 259, 261(1994). However, the evaluation of the same disability under various diagnoses is to be avoided. See 38 C.F.R. § 4.14; Fanning v. Brown, 4 Vet. App. 225(1993). When a disability is not specifically listed in the Rating Schedule, it may be rated under a closely related injury in which the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2012). In this case, the Veteran has contended that his bilateral lower extremity fasciotomy has resulted in disabilities other than scarring. As noted in the Introduction, the issues of initial compensable ratings for muscle herniation with partial paresis of the superficial nerve of the left and right lower extremities are being remanded. Therefore, the Board will not address such impairment. As discussed in detail below, the evidence does not reflect impairment other than the scarring and muscle herniation. Based on the evidence of record, the Board concludes that a compensable initial rating for any disability resulting from the bilateral lower extremity fasciotomy is not warranted at any time since the grant of service connection. In this case, the evidence does not show that the Veteran's scars meet the criteria for a compensable rating under any of the diagnostic codes used to evaluate scars. The evidence does not show that the Veteran's bilateral lower extremity fasciotomy scars are deep or caused limitation of motion and involve an area exceeding 6 square inches (39 sq. cm.). A January 2005 VA examination revealed that the scars only measured one inch by 0.1 inch; therefore, an area exceeding 6 square inches was not shown. Furthermore, the examiner did not opine that they were deep or caused limitation of motion. At a January 2011 VA examination, the examiner opined that the Veteran's leg scars were three quarter square inches or 4.8387 square centimeters. As such, this examination also does not reveal that the leg scars cover an area exceeding 6 square inches. Physical examination revealed that they were not adherent. There is no indication in this examination report that the Veteran's leg scars were deep or caused limitation of motion. A March 2011 examination reveals that the Veteran's left leg scar was about 2.8 centimeters by 0.1 centimeters, while the right leg scar was about 2.5 centimeters by 0.4 centimeters. The scars were opined to be superficial; no limitation of motion was noted in the examination report. Therefore, a compensable evaluation under DC 7801 is not warranted. The evidence also fails to show that an initial compensable rating under DC 7802 is warranted. The evidence indicates that the scars are superficial since no underlying soft tissue damage has been shown. As noted above, the March 2011 examiner specifically noted that the scars were superficial. The scars also have not been shown to cause limitation of motion. Also, the scars do not involve areas of 144 square inches or greater. As such, a compensable rating under DC 7802 is not warranted. The Board also finds that the Veteran's leg scars do not meet the criteria for a compensable initial rating under DC 7803. There is no indication in either VA examination report or in the Veteran's pertinent treatment records that the scars are unstable where, for any reason, there is frequent loss of covering of the skin over the scar. The March 2011 examiner opined that the scars were stable. As such, an initial compensable evaluation under DC 7803 is not warranted. Since the scars have not been shown to be painful on examination, the Board also finds that an initial compensable rating under DC 7804 is not warranted. The January 2005 examiner found that the scars were asymptomatic. They were without tenderness on examination. Although a December 2005 record from J.C., M.D. indicates that there was some pain on palpating the surgical area, this record does not reveal that the scars themselves were painful. At the January 2011 VA examination, the Veteran reported that the scars themselves did not hurt. Examination revealed that they were not tender. The March 2011 examination report indicates that the scars were not painful or tender. The totality of the medical evidence of record shows that the Veteran's scars are not painful on examination. Therefore, a 10 percent rating under DC 7804 for scars which are superficial and painful on examination is not warranted. Lastly, there is no indication that the Veteran's scars cause limitation of function of the affected part. None of the examiners indicated that the scars resulted in limitation of function, nor has the Veteran contended such limitation. Absent limitation of function of the affected part, a compensable evaluation under DC 7805 is not warranted. Accordingly, the criteria for an initial compensable rating for scarring from the Veteran's bilateral lower extremity fasciotomy have not been met. 38 C.F.R. § 4.118, DCs 7801, 7802, 7803, 7804, 7805. In finding that an initial compensable rating for scarring is not warranted, the Board observes that the January 2011 examination indicated that the Veteran had two tissue protuberances that were tender to palpation. However, the examiner specifically found that they were not scars. Rather, the examiner indicated that they were herniations and/or angiolipomas. As noted in the Introduction, the Board is remanding the issues of initial compensable ratings for muscle herniation with partial paresis of the superficial nerve of the left and right lower extremities. Therefore, the Board need not address the January 2011 examiner's findings as they pertain to the herniations. The Board also finds that the evidence does not indicate that disability evaluations for orthopedic or joint manifestations are warranted. The Veteran was afforded a VA joints examination in January 2005. The examiner found that the Veteran had no other residual from his bilateral lower extremity fasciotomy other than well healed surgical scars. There was no evidence of shin splints; both knees, legs and ankles were normal. A VA muscle examination in December 2010 indicates that the Veteran's complaints of pain and muscle herniation were related to the condition of muscle herniation and subsequent fasciotomies the Veteran had. X-rays of the bilateral tibia at that time revealed normal tibia/fibula with no fracture or dislocation. An April 2011 examination by the December 2010 examiner indicates that the Veteran had no joint complaints and a joints examination or opinion was not needed. In this case, although the Veteran's pertinent treatment records reveal complaints of chronic pain in both legs, the evidence fails to show that he has an orthopedic or joint disability as a residual of his in-service bilateral lower extremity fasciotomy. Rather, the evidence indicates that his pain may be related to his service-connected muscle herniations. Therefore, an initial compensable rating for orthopedic manifestations of his disability is not warranted. The Board has also considered whether an initial compensable rating for muscle injuries is warranted. However, the evidence fails to show that the Veteran meets the criteria for a compensable rating under the diagnostic codes used to evaluate leg muscle injuries. The Board observes that under 38 C.F.R. § 4.56, governing the evaluation of muscle disabilities, (a) An open comminuted fracture with muscle or tendon 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 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) Disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe as follows: Slight disability of a muscle anticipates a simple muscle wound without debridement or infection and with a history of a superficial wound with brief treatment and no cardinal signs or symptoms of muscle disability, such as loss of power, weakness, fatigue-pain, or impairment of coordination and uncertainty of movement. Objective findings of a slight disability include a minimal scar, no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function or retained metallic fragments. 38 C.F.R. § 4.56(d)(1). Moderate disability of a muscle anticipates a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of a high velocity missile, residuals of debridement, or prolonged infection. A history consistent with a moderate disability would include complaints of one or more of the cardinal signs and symptoms, particularly lowered threshold of fatigue after average use. Objective findings include some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue. 38 C.F.R. § 4.56 (d)(2). A moderately severe disability of the muscles anticipates a through and through or deep open penetrating wound by a small high velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. There should be a history of hospitalization for a prolonged period of treatment of the wound with a record of cardinal symptoms consisting of loss of power, weakness, lowered threshold of fatigue, fatigue- pain, impairment of coordination and uncertainty of movement, and if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and exit scars indicating a track of a missile through one or more muscle groups. Objective findings should also include indications on deep 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 should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). Severe disability of muscles contemplates 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. There are 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. 38 C.F.R. § 4.56(d)(4). As can be determined from the above, muscle damage is primarily rating when resulting from a missile injury. Where there is surgical removal of the muscle, resulting in muscle functional impairment, there is a basis to assign a rating based on this surgery. In this case, although the Veteran has been shown to have muscle herniation, the evidence fails to show that he has a muscle injury resulting from the in-service bilateral lower extremity fasciotomy. At a December 2010 VA examination, the muscle examiner diagnosed the Veteran with muscle herniation, status post bilateral lower extremity fasciotomy. The examiner indicated that there was no history of trauma to the muscles; no loss of deep fascia or muscle substance; and no limited motion of any joint by muscle disease or injury. The March 2011 skin examiner noted that there was no obvious atrophy or wasting of the muscle around the scars and that power in the muscles was normal. An April 2011 VA examination continued to show that the Veteran had no history of trauma to the muscles. That examination also revealed no loss of deep fascia or muscle substance; and no limited motion of any joint by muscle disease or injury. None of the Veteran's treatment records suggest that he has an injury to any specific muscle group such that a compensable rating is warranted. Therefore, the Board concludes that an initial compensable rating for residuals resulting in a muscle injury is not warranted. Lastly, the Board will not consider whether an initial compensable rating for neurological impairment is warranted. As discussed in the Introduction, the Board is remanding the issues of initial compensable ratings for muscle herniation with partial paresis of the superficial nerve of both lower extremities. Therefore, the Board will not address the ratings assigned to the partial paresis of the superficial nerves. Additionally, a review of the evidence does not reveal other neurologic impairment aside from the partial paresis of the superficial nerve of both lower extremities. Accordingly, after reviewing all of the evidence of record, the Board concludes that an initial compensable rating is not warranted at any time since the award of service connection for the Veteran's bilateral lower extremity fasciotomy. In reaching this conclusion, the Board acknowledges that the record reflects the Veteran's numerous complaints of pain associated with this service-connected disability. However, aside from scarring and muscle herniation with partial paresis of the superficial nerve, no other residuals have been diagnosed. In this case, the December 2010 VA muscles examiner indicated that the Veteran's complaints of pain were due to his now service-connected muscle herniation. As noted in the Introduction, the Board is remanding the issues of initial compensable ratings for muscle herniation with partial paresis of the superficial nerve of the left and right lower extremities. Therefore, the Board reiterates that an initial compensable evaluation for the bilateral lower extremity fasciotomy is not warranted. Furthermore, 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 percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's bilateral lower extremity fasciotomy symptoms and disability level. Marked interference with employment beyond that contemplated by the schedular criteria has not been shown. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the Veteran for his service-connected disability. The evidence does not show that the Veteran's bilateral lower extremity fasciotomy disability has resulted in interference with employment or activities of daily life which would a warrant an initial compensable rating for this disability. Moreover, as the evidence does not show that his disability renders him unemployable, the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In finding that the evidence does not show that the Veteran is unemployable, the Board observes that in a March 2006 statement, he indicated he could not work in his trained field as a carpenter, but was working as a lathe operator. In a May 2011 statement, the Veteran indicated that he was not able to keep employment and doing work he loved to do. Although he may not be able to work as a carpenter, the evidence fails to show that he is unable to work in any profession. Furthermore, the VA examinations in this case do not indicate that the Veteran's disability renders him unemployable. Therefore, the Board reiterates that the issue of entitlement to a total disability rating based on individual unemployability has not been raised by the record. ORDER Entitlement to a compensable initial rating for bilateral lower extremity fasciotomy is denied. REMAND Regrettably, a remand is necessary for the Veteran's claims for initial compensable ratings for muscle herniation with partial paresis of the superficial nerve of the left and right lower extremities. As noted in the Introduction, in a June 2012 rating decision, the RO granted service connection for muscle herniation with partial paresis of the superficial nerve of the left and right lower extremities and assigned noncompensable evaluations. A statement from the representative received in July 2012 expressed disagreement with the disability evaluations assigned. The Board observes that no statement of the case (SOC) has been issued as to these initial rating claims. The claims must be remanded to allow the RO to provide the Veteran with a statement of the case on these issues. Manlincon v. West, 12 Vet. App. 238, 240-41 (1999); see also Godfrey v. Brown, 7 Vet. App. 398, 408-410 (1995); Archbold v. Brown, 9 Vet. App. 124, 130 (1996); VAOPGCPREC 16-92 (O.G.C. Prec. 16-92). However, the issues will be returned to the Board after issuance of the statement of the case only if perfected by the filing of a timely substantive appeal. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); Archbold, 9 Vet. App. at 130. Accordingly, the case is REMANDED for the following action: Provide the Veteran with a statement of the case as to the issues of initial compensable ratings for muscle herniation with partial paresis of the superficial nerve of the left and right lower extremities. The Veteran should be informed that he must file a timely and adequate substantive appeal in order to perfect an appeal of these issues to the Board. See 38 C.F.R. §§ 20.200, 20.202, and 20.302(b). If a timely substantive appeal is not filed, the claim should not be certified to the Board. The Veteran has the right to submit additional evidence and argument on the matter or 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 Supp. 2012). ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs