Citation Nr: 1323931 Decision Date: 07/26/13 Archive Date: 08/06/13 DOCKET NO. 09-45 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial compensable evaluation for residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, prior to September 21, 2012. 2. Entitlement to an evaluation in excess of 10 percent for residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, since September 21, 2012. 3. Entitlement to an effective date prior to September 11, 2012, for the award of service connection for traumatic brain injury. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD W. Yates, Counsel INTRODUCTION The Veteran served on active duty from June 1965 to February 1985. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In July 2012, the Board remanded the issues of entitlement to service connection for residuals of head trauma; and entitlement to an initial compensable evaluation for residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, for additional evidentiary development. In April 2013, the RO issued a rating decision which granted service connection at a 40 percent disability rating for traumatic brain injury, effective from September 11, 2012. In June 2013, the Veteran filed a notice of disagreement contesting the effective date assigned for the award of service connection for this disability. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). The RO's April 2013 rating decision also granted an increased evaluation of 10 percent for the Veteran's service-connected residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, effective September 21, 2012. The Veteran continues to seek a higher evaluation for this disability. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). As such, the Board recharacterized this issue to reflect the staged ratings currently assigned. The issue entitlement to an effective date prior to September 11, 2012, for the award of service connection for traumatic brain injury is remanded to the RO via the Appeals Management Center in Washington, DC. FINDING OF FACT Throughout the course of this appeal, the Veteran's residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, were manifested by no more than a moderate muscle disability to Muscle Group XII, with slight atrophy in the right calf; muscle strength ranging from 4+ to 5/5; no impairment in dorsiflexion and extension of the toes; slight impairment on stabilization of the arch; diffuse tenderness to palpation of the calf; and complaints of loss of power, weakness, lowered fatigue threshold, fatigue-pain, and impairment of coordination. CONCLUSIONS OF LAW 1. The criteria for an evaluation of 10 percent, but no more, for residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, prior to September 21, 2012, have been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5312 (2012). 2. The criteria for an evaluation in excess of 10 percent for residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, since September 21, 2012, have not been met. 38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002); 38 C.F.R. § 4.73, Diagnostic Code 5312 (2012). REASONS AND BASES FOR FINDING AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). The Veteran's claim seeking an increased initial evaluation for residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, arises from his disagreement with the initial evaluation assigned to this condition following the grant of service connection. 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). The RO has obtained the Veteran's available service treatment records, as well as his identified VA and private treatment records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO also provided the Veteran with a VA examination for muscles in September 2012. This examination was performed by a physician who had reviewed the Veteran's claims file, reviewed with the Veteran his history of a right leg injury, examined the Veteran, and included rationales for the conclusions reached therein. The Board finds that this examination is adequate for evaluation purposes. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). The Veteran has not claimed that this examination was inadequate. Id. In July 2012, the Board remanded this matter to the RO directing that updated treatment records be requested; and that a new examination be conducted to determine the severity of the Veteran's residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle. The RO subsequently obtained the Veteran's updated VA treatment records, dated through April 2013; and afforded the Veteran a VA examination in September 2012. Accordingly, the directives of the Board's July 2012 remand have been accomplished. See Stegall v. West, 11 Vet. App. 268 (1998). There is no indication that additional evidence relevant to the issues being addressed is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance affects the outcome of this case, any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2012). 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 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.A. § 1155; 38 C.F.R. § 4.1 (2012). Throughout its deliberation, the Board has not overlooked the Veteran's and his representative's written statements, as well as the Veteran's statements to his examiners. In this regard, the Board finds that the Veteran's statements are competent and credible evidence as to what he observes and feels, and others' statements are competent evidence as to what they observe. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Accordingly, the Board has considered these statements in making its findings. The RO assigned the Veteran's service-connected residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, a noncompensable evaluation prior to September 21, 2012; and a 10 percent evaluation since September 21, 2012, pursuant to Diagnostic Code 5312. 38 C.F.R. § 4.73. Diagnostic Code 5312, contemplates the foot and leg anatomical region, and provides for evaluations for disability of Muscle Group XII. The function of these muscles include dorsiflexion, extension of toes, and stabilization of arch. The muscles include the anterior muscles of the leg, tibialis anterior, extensor digitorum longus, extensor hallucis longus, and peroneus tertius. Muscle disability under this provision is assigned a noncompensable evaluation for slight impairment, a 10 percent evaluation for moderate impairment, a 20 percent evaluation for moderately severe impairment, and a 30 percent evaluation for severe impairment. 38 C.F.R. §§ 4.56, 4.73, Diagnostic Code 5312 (2012). A muscle injury evaluation will not be combined with a peripheral nerve paralysis evaluation of the same body part unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a) (2012). 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. 38 C.F.R. § 4.56(c). A moderate disability of the muscles involves a through-and-through or deep penetrating wound of a relatively short track by a single bullet or small shell or a shrapnel fragment, and the absence of explosive effect of high-velocity missile and of residuals of debridement or of prolonged infection. There must be evidence of in-service treatment of the wound. There must be a record in the file of consistent complaint of one or more of the cardinal symptoms of muscle disability, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. The objective findings include entrance and, if present, exit scars which are linear or relatively small, and so situated as to indicate a relatively short track of the missile through the muscle tissue, and signs of 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. 38 C.F.R. § 4.56(d)(2). A moderately severe disability of the muscles involves a 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 intramuscular scarring. There must be evidence in the file showing hospitalization for a prolonged period for treatment of the wound. There must be a record of consistent complaint of cardinal signs and symptoms of muscle disability, and if present, evidence of inability to keep up with work requirements. The objective findings include entrance and, if present, exit scars indicating the 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, and tests of strength and endurance compared with sound side must demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). The Board concludes that a 10 percent evaluation for manifestations of the Veteran's service-connected residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, is warranted throughout the course of this appeal. Since the initial grant of service connection, the Veteran's residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, have been manifested by no more than a moderate muscle disability to Muscle Group XII, with slight atrophy in the right calf; muscle strength ranging from 4+ to 5/5; no impairment in dorsiflexion and extension of the toes; slight impairment on stabilization of the arch; diffuse tenderness to palpation of the calf; and complaints of loss of power, weakness, lowered fatigue threshold, fatigue-pain, and impairment of coordination. The evidence does not reflect that the Veteran's service-connected residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, was manifested by symptoms of such severity to be analogous to a moderately-severe muscle disability to Muscle Group XII. The Veteran's right leg injury does not involve, and is not analogous to, a 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 intramuscular scarring. His service treatment records reveal that he was treated in October 1983 for complaints of swelling in the right knee, calf, and ankle area. The October 1983 treatment report noted that two weeks previously, the Veteran had fallen on a sailboat and was hung up by his right leg at the knee and thigh. Physical examination revealed atrophy and very tender deep veins within the right calf. The examiner attributed these manifestations to deep vein thrombosis of the right calf. The following day, the Veteran underwent a venogram which revealed a completely patent and normal deep and superficial venous system. The Veteran was discharged with a final diagnosis of status post ankle injury. More recently, a November 2007 VA treatment report noted that the Veteran had mild weakness, in the range of 4+/5 in muscle strength in ankle dorsiflexion and extensor hallucis longus. The report also noted that his right calf measured 18 inches and his left calf measured 19.5 inches in diameter. On his February 2008 VA examination for joints, the VA examiner noted that the physical examination revealed no weakness in the right lower extremity. The physical examination revealed an equal circumference of 45 centimeters (cm.) in the right and left calf. The report of the Veteran's August 2010 VA examination for joints noted that his right calf measured 45.5 cm. and his left calf measured 47 cm. Physical examination revealed that the Veteran exhibited equal strength in his left and right lower extremities. The report concluded with a diagnosis of atrophy in the right gastrocnemius muscles, status post trauma. The report of his September 2012 VA examination noted that the Veteran used a cane to ambulate, and that there was tenderness to palpation of the right calf. It also noted his complaints of loss of power, weakness, fatigue-pain, and impairment of coordination. Physical examination revealed is left calf to measure 49.5 cm. and his right calf to measure 45.7 cm. Physical examination, however, revealed 5/5 strength, bilaterally, in ankle dorsiflexion and ankle plantar flexion. The VA examiner further noted that despite the Veteran's objective evidence of right calf atrophy and his reported cardinal symptoms of muscle disability, physical examination of this muscle injury is relatively benign, his muscle strength was normal, and atrophy was mild. The VA examiner then opined that that the Veteran's right gastrocnemius injury/atrophy resulted in no impairment in dorsiflexion and extension of the toes, but did cause slight impairment on stabilization of the arch. Thus, at no point during this time frame does the evidence of record reflect symptoms of a moderately-severe muscle injury. The schedular evaluation assigned in this case is not inadequate. 38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111, 115 (2008). When comparing the disability picture of the Veteran's residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, with the symptoms contemplated by the Rating Schedule, the Board finds that the Veteran's symptoms are more than adequately contemplated by the 10 percent disability rating. Throughout the course of this appeal, the Veteran's residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, were manifested by no more than a moderate muscle disability to Muscle Group XII, with slight atrophy in the right calf; muscle strength ranging from 4+ to 5/5; no impairment in dorsiflexion and extension of the toes; slight impairment on stabilization of the arch; diffuse tenderness to palpation of the calf; and complaints of loss of power, weakness, lowered fatigue threshold, fatigue-pain, and impairment of coordination. Ratings in excess of the 10 percent currently assigned are provided for certain manifestations of the service-connected residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, but the medical evidence of record does not demonstrate that such manifestations were present in this case. The criteria for the assigned 10 percent rating reasonably describes the Veteran's disability level and symptomatology and, therefore, the currently assigned schedular evaluation is adequate and no referral is required. While there may have been day-to-day fluctuations in the manifestations of the Veteran's service-connected residuals of injury to right leg, the evidence shows no distinct periods of time during the appeal period, when the Veteran's service-connected residuals of injury to right leg varied to such an extent that a rating greater or less than 10 percent would be warranted. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Based on all the evidence of record, the preponderance of the evidence of record does not show a moderately-severe muscle injury that meets the criteria for a rating in excess of 10 percent for service-connected residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, throughout the course of this appeal. Accordingly, the doctrine of reasonable doubt is not for application, and therefore, a rating in excess of 10 percent for the Veteran's service-connected residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER An evaluation of 10 percent, but no more, for residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle prior to September 21, 2012, is granted, subject to the laws and regulations governing the payment of monetary benefits. An evaluation in excess of 10 percent for residuals of injury to right leg, to include atrophy of the right gastrocnemius muscle, since September 21, 2012, is denied. REMAND The Veteran is seeking an earlier effective date for the award of service connection for traumatic brain injury. The RO's April 2013 rating decision granted service connection for traumatic brain injury, and assigned a 40 percent initial disability rating, effective from September 11, 2012. In June 2013, the Veteran filed a notice of disagreement contesting the effective date assigned for the award of service connection for this disability. Specifically, the Veteran contends that the award of service connection should date back to the date of his original claim filed on March 29, 2007. As the RO has not yet issued a statement of the case addressing this issue, the Board must remand this issue for the RO to issue a statement of the case and to provide the Veteran and his representative an opportunity to perfect an appeal of such issue. Manlicon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is remanded for the following action: Issue a statement of the case and notification of the Veteran's appellate rights on the issue of entitlement to an effective date prior to September 11, 2012, for the award of service connection for traumatic brain injury. See 38 C.F.R. §§ 19.29, 19.30 (2012). The Veteran and his representative are reminded that to vest jurisdiction over this issue with the Board, a timely substantive appeal must be filed. 38 C.F.R. § 20.202 (2012). If the Veteran perfects an appeal of this issue, it must be returned to the Board for appellate review. No action is required by the Veteran until he receives further notice; however, he may present additional evidence or argument while the case is in remand status at the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). ______________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs