Citation Nr: 1606102 Decision Date: 02/18/16 Archive Date: 03/01/16 DOCKET NO. 10-39 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for status post-traumatic injury to the right rectus femoris muscle, claimed as residuals of right thigh injury. 2. Entitlement to service connection for a thoracolumbar spine disability with neurological symptoms. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Chris Miller, Associate Counsel INTRODUCTION The Veteran served on active duty from November 1983 to December 2008, as noted in the Veteran's Virtual VA file. The Veteran filed these claims prior to his separation from service This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. That decision, in pertinent part, denied service connection for cervical and thoracolumbar spine disabilities, as well as a right rectus femoris muscle disability. However, in his September 2010 VA Form 9, the Veteran only perfected his appeal of the claims of entitlement to service connection for his thoracolumbar spine and right rectus femoris muscle disabilities. The issue of entitlement to a compensable rating for left shoulder degenerative changes was also raised by the Veteran's September 2010 VA Form 9. In pertinent part, the Veteran stated in that document that he wished to appeal the non-compensable rating that was assigned in the March 2009 rating decision. Inasmuch as more than one year had passed since the March 2009 rating decision notification, that statement contained within the Form 9 cannot be construed as a notice of disagreement. See 38 C.F.R. § 20.303(a) (2010). As such, the Board will treat that statement as a claim for an increased rating, which has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran's favor, status post-traumatic injury to the right rectus femoris muscle had its clinical onset during service. 2. Resolving reasonable doubt in the Veteran's favor, small/moderate desiccative/protrusive disk disease, worse at the L5-S1 level, and mild compression of the left S1 nerve root had their clinical onset during service. CONCLUSIONS OF LAW 1. Status post-traumatic injury to the rectus femoris muscle was incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). 2. Small/moderate desiccative/protrusive disk disease, worse at the L5-S1 level, and mild compression of the left S1 nerve root were incurred in service. 38 U.S.C.A. §§ 1110, 1131, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection will be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Where a disease is diagnosed after discharge, service connection may be granted when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Generally, service connection requires competent and credible evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran first seeks service connection for a right thigh injury incurred during service. Here, the Veteran's service treatment records show that on August 21, 2002, he sought treatment on base after injuring his thigh while running one month prior. He stated that he heard a "pop" at the time of the injury, and that on the previous day he noticed a lump on the anterior aspect of his right thigh. The physician noted a large, approximate 4 centimeter by 3 centimeter palpable non-tender lump in the Veteran's distal quadriceps. There was full range of motion. The Veteran was diagnosed with either a torn quadriceps or a hematoma, and he was referred to a local orthopedic physician for an ultrasound and evaluation. The Veteran saw Dr. J.K., an orthopedic physician in Bad Aibling, Germany, that same week. He diagnosed the Veteran with a rupture of the right rectus femoris muscle that was four weeks old. The physician stated that a gap in the muscle surface of the rectus femoris muscle was palpable, with no lack of range of motion in the right hip or knee. The Veteran was told that he might have a loss of muscle strength in his quadriceps. Given the above, the Veteran can show an injury in service. Therefore, the next issue is whether he has a current disability. The Veteran underwent a pre-discharge examination in November 2008. He reported that his right thigh symptoms included loss of strength, weakness, and pain. He did not relate any other functional impairment. The examiner found that the form and function of muscles in the Veteran's legs were symmetric, and there was no muscle or bone tenderness or atrophy in the muscle compartments. Sensory perception and vascular supply to the legs and feet were undisturbed and deep tendon reflexes at the knees and ankles were within normal limits. Plantar flexion at the ankles was not compromised and did not induce pain in the muscle compartments. The Veteran was diagnosed with status post-traumatic injury to the right thigh, condition resolved without complications. However, the Veteran took issue with this diagnosis in his September 2010 VA Form 9. He stated that his legs are, in fact, not symmetrical when he flexes his right leg, as the rectus femoris muscle draws up and creates a bulge that is not present in his left leg when that latter limb is flexed. Lay evidence has been held to be competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308 -09 (2007) (concerning varicose veins). Here, a ruptured muscle has unique and readily identifiable features, such as a lump, that a lay person can observe. The Veteran has also reported loss of strength, weakness, and pain. The Board has no reason to question the Veteran's credibility, and it is therefore in equipoise as to whether he has a current disability. Finally, the Board must determine whether there is a nexus between the Veteran's current disability and his injury in service. Here, both medical and lay evidence are in support. First, as noted above, the November 2008 examiner did diagnose the Veteran with status post-traumatic injury to the right thigh, and there is no evidence or assertion of any other right thigh injury other than the one the Veteran had in service. Moreover, lay evidence is in support. The Veteran filed his claim for this disability while still in service, showing continuous and persistent symptomology. He also sought treatment for muscle soreness in his legs in February 2005. There is not a separation examination or medical history to show anything to the contrary. As such, when giving the Veteran the benefit of the doubt, a nexus can be shown and service connection is warranted for status post-traumatic injury to the rectus femoris muscle. The Veteran also seeks service connection for a low back disability that he asserts was incurred during service. Service connected is warranted on this matter as well. First, the Veteran can show a current disability. The Board notes that in the Veteran's November 2008 pre-discharge examination, x-rays were negative for lumbar and thoracic spine disabilities, and the examiner found no current pathologies, and normal ranges of motion. However, when the Veteran filed his September 2010 VA Form 9, he also included the radiology report from a July 21, 2008 MRI of his lumbar spine. The radiologist's diagnosis, made only a few months before separation, was small/moderate desiccative/protrusive disk disease, worse at the L5-S1 level, resulting in moderate left paracentral spinal canal stenosis with direct mild/moderate mass effect and mild compression of the left S1 nerve root. Inasmuch as the November 2008 examination did not include an MRI, the Board assigns probative value to the July 21, 2008 report, and finds that the Veteran has a current low back disability. The Veteran can also show an injury in service, as he reported low back pain in many instances throughout service. See records from March 1987, April 1987, October 1993, February 2005, and April 2008. See also November 2008 pre-discharge examination, reporting stiffness of the lower back. Finally, the Veteran can also show a nexus between his current disability and his complaints of back pain in service. The Board concedes that medical histories and examinations conducted during service in February 1994, July 1995, and April 2002 were silent as to any low back disability, as was a December 2006 pre-deployment questionnaire. However, when the Veteran entered service in September 1983, he denied any history of recurrent back pain in his medical history. His entry examination also noted a normal spine and neurologic system. While a separation examination and medical history are not available, the July 21, 2008 radiologist report clearly diagnosed the Veteran with desiccative/protrusive disk disease of the lumbosacral spine, a disability not found when the Veteran entered service. Given this, and the frequent symptoms of low back pain during service, the question of a nexus is at least in equipoise. Service connection for small/ moderate desiccative/protrusive disk disease, worse at the L5-S1 level, and mild compression of the left S1 nerve root is, therefore allowed. ORDER Service connection for status post-traumatic injury to the right rectus femoris muscle is granted. Service connection for small/ moderate desiccative/protrusive disk disease, worse at the L5-S1 level, and mild compression of the left S1 nerve root is granted. ______________________________________________ BARBARA B. COPELAND Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs