Citation Nr: 1325805 Decision Date: 08/15/13 Archive Date: 08/26/13 DOCKET NO. 09-42 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to a compensable initial disability rating for right leg muscle atrophy. 2. Entitlement to a compensable initial disability rating for right knee genu varus. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from October 1986 through June 1990. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted service connection for right leg muscular atrophy and for right leg genu recurvatum, both effective from August 26, 2008. Noncompensable initial disability ratings were assigned for each. From that rating decision, the Veteran submitted a timely Notice of Disagreement (NOD) in February 2009. After a Statement of the Case (SOC) was mailed to the Veteran in September 2009, the Veteran perfected his appeal in October 2009, via VA Form 9 substantive appeal. The Veteran testified during an informal hearing that was held at the RO before a Decision Review Officer (DRO). A transcript of this testimony is associated with the record. FINDINGS OF FACT 1. For all times relevant to this appeal, the Veteran's right leg atrophy has been manifested by moderate disability marked by diminished muscle strength in the right calf, decreased endurance, and loss of muscle tissue from the right calf. 2. For all times relevant to this appeal, the Veteran's right knee genu varus deformity has been marked by a bowing deformity in the right leg with instability and decreased endurance upon weight bearing. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 10 percent, and no more, for right leg muscle atrophy, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.56, 4.73, Diagnostic Code 5311 (2012). 2. The criteria for an initial disability rating of 10 percent, and no more, for right knee genu varus, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5263 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper 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. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). With regard to the Veteran's claims for compensable initial disability ratings for right leg muscle atrophy and right leg genu recurvatum, a pre-rating letter mailed to the Veteran in October 2008 provided notice of the information and evidence needed to substantiate his claims for service connection for atrophy, bowing, and other deformities in the right leg. This notification would also apply to the "downstream" issues of entitlement to higher initial disability ratings for right leg muscle atrophy and right leg genu recurvatum. The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted, the claim is substantiated. In such instances, additional VCAA notice is not required and any defect in the notice is not deemed prejudicial to the Veteran. Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007); Dingess, 19 Vet. App. at 491. Thus, because the VCAA notice concerning the issues of service connection for right leg muscle atrophy and genu recurvatum was legally sufficient, VA's duty to notify in this case has been satisfied. In addition, VA has fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. His service treatment records, VA treatment records, identified and relevant private treatment records, claims submissions, lay statements, and DRO hearing transcript have been associated with the record. VA examinations to assess the nature and severity of the muscle and knee disabilities in the Veteran's right lower extremity were performed in October 2007, January 2009, and July 2010. The Board finds that these examinations, along with the other evidence of record, are fully adequate for the purposes of determining the extent of the Veteran's disabilities in light of the applicable diagnostic criteria. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. Increased Disability Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations applies, 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 severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). In instances where the rating being appealed is the initial rating assigned with a grant of service connection, the entire appeal period is for consideration, and separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119 (1999). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 55. By way of history, the Board notes that service connection is in effect for the Veteran for multiple disabilities arising from her right knee problems. By virtue of rating decisions issued in December 1991, November 1992, February 1999, and August 1999, service connection is presently in effect for residual instability resulting from right knee anterior collateral ligament (ACL) reconstruction, with an assigned 20 percent disability rating. Service connection is also in effect for right knee degenerative joint disease with patellofemoral pain syndrome, with a 10 percent disability rating assigned, pursuant to a July 2002 rating decision. However, as noted in the introduction, this appeal is limited to the issues of entitlement to compensable initial disability ratings for service-connected right leg muscular atrophy and right leg genu recurvatum. A. Initial Disability Rating for Right Leg Muscle Atrophy Throughout the course of this appeal, the Veteran's right leg muscle atrophy has been rated pursuant to 38 C.F.R. § 4.71a , Diagnostic Code (DC) 5311, which provides the criteria for rating disabilities related to injuries of Muscle Group XI. For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in five anatomical regions, to include: six muscle groups for the shoulder girdle and arm (rated under DCs 5301 through 5306); three muscle groups for the forearm and hand (rated under DCs 5307 through 5309); three muscle groups for the foot and leg (rated under DCs 5310 through 5312); six muscle groups for the pelvic girdle and thigh (rated under DCs 5313 through 5318); and five muscle groups for the torso and neck (rated under DCs 5319 through 5323). 38 C.F.R. § 4.55(b). The criteria for determining how to classify a muscle injury are set forth under 38 C.F.R. § 4.56. The criteria consist of the type of injury, the history and complaints, and the objective findings. For VA 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). Muscle Group XI is responsible for propulsion, plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. This muscle group includes the triceps surae (gastrocnemius and soleus), tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus, popliteus and plantaris. a noncompensable disability rating is assigned for slight disabilities. A 10 percent disability rating is assigned for disabilities that are moderate. A 20 percent disability rating is assigned for disabilities that are moderately severe. A maximum schedular 30 percent disability rating is assigned for severe disabilities. 38 C.F.R. § 4.73, Diagnostic Code 5311. The provisions under 38 C.F.R. § 4.56 provide additional guidance for evaluating muscle disabilities. Although these provisions largely contemplate muscle injuries in the context of a projectile wound, they nonetheless provide valuable general context for the rating criteria applied in evaluating muscle disabilities. In that regard, the Board notes that "slight "muscle disabilities are marked by simple wounds of the muscle without any debridement or infection. Objective findings that are consistent with a slight muscle disability include minimal scarring; no evidence of fascial defect, atrophy, or impaired tonus; and no impairment of function or metallic fragments retained in the tissue. 38 C.F.R. § 4.56(d)(1). "Moderate" disability contemplates a through and through or deep penetrating wound without the explosive effect of high velocity missile and no residuals of debridement or prolonged infection. Objective findings include relatively small or linear entrance and exit scars with signs of moderate deep facial or muscle substance loss or impaired muscle tonus. A moderate disability will also be classified as such when there is a loss of power or lowered threshold of fatigue when compared to the non-injured side. 38 C.F.R. § 4.56(d)(2). A "moderately severe" muscle disability involves a through-and-through or deep penetrating wound by a high velocity missile of small size or a large missile of low velocity, with debridement or with prolonged infection or with sloughing of soft parts, intermuscular scarring. There must be evidence of a hospitalization for a prolonged period in service for treatment of a wound of severe grade. The record must contain consistent complaints of cardinal symptoms of muscle wounds. Evidence of unemployability because of inability to keep up with work requirements, if present, must be considered. The objective findings are entrance and, if present, exit scars that are relatively large and so situated as to indicate a track of a missile through important muscle groups. There are indications on palpation of moderate loss of deep fascia, or moderate loss of muscle substance or moderate loss of normal firm resistance of muscles compared with the sound side. The tests of strength and endurance of the muscle groups involved (compared with the sound side) give positive evidence of marked or moderately severe loss. 38 C.F.R. § 4.56(d)(3). A "severe" muscle disability is one where the injury was either through and through, or a deep penetrating wound due to a high velocity missile, or large or multiple low velocity missiles, or one with a shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intramuscular binding and scarring. The service department record (or other evidence) would show hospitalization for a prolonged period for treatment of the wound. There would be a consistent complaint of cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), which would be worse than that shown for moderately severe injuries, and, if present, an inability to keep up with work requirements. Objectively, there would be ragged, depressed and adherent scars, indicating wide damage to muscle groups in the missile track. Palpation would show loss of deep fascia or muscle substance, or soft flabby muscles in the wound area. Muscles would swell or harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side would indicate severe impairment of function. If they happen to be present, the following would also be signs of severe muscle injury: (A) x-ray evidence of minute multiple scattered foreign bodies indicating intramuscular trauma and explosive effect of 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 track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle; and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). Against the backdrop of the foregoing law and regulations, the Board notes that the record includes records of VA and private treatment received by the Veteran from 1987 through 2010, as well as multiple VA examinations of the lower extremities performed in November 1991, April 1996, October 1998, February 2002, May 2003, October 2005, October 2007, January 2009, and July 2010. Although this evidence shows that the Veteran was followed regularly for right knee complaints over that period, the earliest record pertaining to right leg muscle atrophy is a March 2001 private records from Dr. R.A. which reflects initial findings of atrophy in the right quadriceps muscle. An isokinetic strength test performed in May 2001 revealed diminished strength in the calf muscles. The Veteran was apparently treated with physical therapy. Notwithstanding these findings in 2001, VA examinations performed in February 2002, May 2003, October 2005, October 2007 did not indicate any objective findings consistent with atrophy in the Veteran's right lower extremity. Subsequent VA and private treatment records do not indicate any further treatment related to the muscles in her right lower extremity until private treatment in November 2008, at which time an examination of the right lower extremity revealed involvement of the right leg muscle that was believed to be secondary to her right ACL repair. During a January 2009 VA examination, the Veteran reported intermittent pain due to shin splints in the right lower leg; however, she denied having any actual flare-ups in her muscle symptoms. The examination confirmed the presence of right gastrocnemius muscle atrophy with intermittent pain in the anterior aspect of the right leg after prolonged periods of weight bearing. Nonetheless, the evidence did not reveal any loss of muscle function such as loss of strength or range of motion. During private treatment in April 2010, the Veteran continued to report progressive right knee pain. Right thigh and leg weakness was noted. The Veteran was afforded a new VA examination in July 2010, at which time she complained of decreased muscle strength in her right leg. Functionally, she reported that he was able to walk up to a half of a mile with pain. Occupationally, she reported that she was employed as a social worker and that she had missed 10 days of work over the preceding six months due to symptoms in her right knee and lower extremity. She stated that she remained self-sufficient in her activities of daily living. A physical examination of the right lower extremity revealed fair muscle strength. Although no specific loss of muscle function was observed, measurements of the right calf were 16 and three-eighths inches in comparison to 17 and a quarter inches on the left. The examiner diagnosed calf muscle atrophy that was manifested by fair right leg muscle strength and the aforementioned absences from work. Concerning the Veteran's work capacity, the examiner opined that overall she was able to maintain her full time work as a social worker. Upon review and consideration of the evidence, the Board finds that the Veteran is entitled to a 10 percent disability rating for right leg muscle atrophy. In that regard, the evidence shows that the atrophy in her right calf muscle has been productive of diminished muscle strength, decreased endurance, and loss of muscle tissue. However, there is no evidence that the Veteran has experienced any significant work impairment or periods of unemployability due to her right leg atrophy. Although, as noted above, there is evidence of some muscle tissue loss, the evidence does not appear to support a finding of moderate loss of deep fascia, moderate loss of muscle substance, or moderate loss of normal firm resistance of muscles in her right lower extremity. For these reasons, the Veteran's right leg atrophy does not meet the criteria for a moderately severe or severe muscle disability as contemplated by a rating in excess of 10 percent. Overall, the evidence supports the assignment of a disability rating of 10 percent and no more for the Veteran's right leg muscle atrophy. To that extent, this appeal is granted. 38 C.F.R. §§ 4.3, 4.7. B. Initial Disability Rating for Right Knee Genu Varus Although the RO's January 2009 rating decision characterizes the disability at issue here as genu recurvatum, a reading of the rating decision indicates that service connection is actually in effect for the Veteran for "bowing" or genu varus deformity in her right knee. A noncompensable disability rating was assigned for this disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5299-5263. The hyphenated diagnostic code used in this case indicates that the Veteran's bowing or genu varus deformity is an unlisted disability for which specific rating criteria do not exist, and hence, has been rated by analogy under DC 5263. DC 5263, which provide the criteria for genu recurvatum disabilities, provides for a 10 percent disability rating is assigned for genu recurvatum that has been acquired due to trauma and manifested by objective evidence of weakness and insecurity in weight-bearing. Records prior to July 2005 do not indicate any objective findings of a right knee deformity. Nonetheless, the Board notes that the Veteran was being followed prior to that date for right knee complaints including pain, stiffness, instability, and decreased function marked by the inability to walk for longer distances or stand for longer periods. Indeed, as noted previously, service connection is presently in effect for demonstrated right knee instability. During private treatment in July 2005, the Veteran was noted for the first time as having a leg length discrepancy of three quarters of an inch. During follow-up private treatment in May 2008, the treating physician noted the existence of a slight genu varus deformity. During private evaluation in April 2010, the Veteran slight genu varus continued to be seen during standing alignment. Concurrent with the above private treatment, the Veteran was afforded a March 2009 VA examination of her right knee joint. During that examination, the Veteran reported intermittent pain due to shin splints in the right lower leg; however, she denied having any actual flare-ups in her muscle symptoms. She also reported ongoing pain in the joint, weakness, stiffness, swelling, heat, redness, instability, locking, fatigability, and lack of endurance. Physical examination of the right lower extremity confirmed that the Veteran's right leg was bowed and three quarters of an inch shorter than her left leg. During her July 2010 VA examination, the Veteran reported ongoing right knee pain with antalgic gait and limited right knee motion. As noted previously, she stated that she was able to walk half a mile with pain and that she had missed 10 days of work in the past six months as a social worker. She reported that she remained self-sufficient in her activities of daily living and wore a brace on her right knee. The Board notes that the VA examination report does not indicate any findings of genu varus or other right knee deformity; however, where the examination is focused upon the muscles in the right lower extremity, it is unclear as to whether the examination included a physical examination of the joints. As noted previously, the Veteran reported that she was independent with her activities of daily living. Occupationally, the examiner opined that the Veteran was able to maintain her full time work as a social worker. The foregoing evidence shows that the Veteran has a slight genu varus deformity marked by shortening of the right leg and decreased stability upon weight bearing with decreased strength and endurance. In view of the same, the Board finds that the Veteran is entitled to a 10 percent disability rating, and no more, for right knee genu varus according to the criteria under DC 5263. To that extent, this appeal is granted. 38 C.F.R. §§ 4.3, 4.7. C. Other Considerations The Board has considered the potential application of various provisions of Title 38 Code of Federal Regulations, whether or not they have been expressly raised by the Veteran. Schafrath v. v. Derwinski, 1 Vet. App. 589, 594 (1991). In that regard, the Board has also considered the provisions under 38 C.F.R. § 3.321(b)(1), which govern the assignment of extra-schedular disability ratings. However, in this case, the Board finds that the record does not show that any of the Veteran's disabilities considered here are so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1). The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008). In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service- connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extra-schedular referral is required. Id., see also VAOGCPREC 6-96 (Aug. 16, 1996). Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extra-schedular regulation as "governing norms"(which include marked interference with employment and frequent periods of hospitalization). The evidence in this case does not show such an exceptional disability picture that renders inadequate the available schedular ratings for the service-connected disabilities. A comparison between the level of severity and symptomatology of the Veteran's assigned ratings with the established criteria found in the rating schedule shows that the rating criteria reasonably describe the disability level and symptomatology that are attributable to the Veteran's right leg atrophy and genu varus deformity. As discussed above, higher ratings are available under potentially applicable diagnostic codes, but the Veteran's disabilities are not productive of the manifestations necessary to warrant higher ratings. As such, it cannot be said that the available schedular ratings for the Veteran's disabilities are inadequate. Based on the foregoing, the Board finds that the requirements for an extra-schedular evaluation for the Veteran's service-connected right leg atrophy and right knee genu varus, under the provisions of 38 C.F.R. § 3.321(b)(1), have not been met. Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); Thun, 22 Vet. App. 111. The Board has also considered whether further "staged" disability ratings for any of the foregoing disabilities are warranted by the evidence. The symptomatology shown upon examination and treatment, however, has been essentially consistent and fully contemplated by the assigned disability ratings. As such, there is no basis for further staged disability ratings for any of the disabilities under consideration. ORDER Entitlement to an initial disability rating of 10 percent, and no more, for right leg muscle atrophy is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to an initial disability rating of 10 percent, and no more, for right leg genu recurvatum is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs