Citation Nr: 1640220 Decision Date: 10/07/16 Archive Date: 10/19/16 DOCKET NO. 13-00 135 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE 1. Entitlement to an initial compensable disability rating for right calf, status post shrapnel wound from December 18, 2009 to May 7, 2014. 2. Entitlement to an initial rating in excess of 30 percent for right calf, status post shrapnel wound throughout the pendency of the claim. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Ashley Castillo, Associate Counsel INTRODUCTION The Veteran served on active duty from September 2005 to December 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction was subsequently transferred to the St. Petersburg, Florida RO. In the March 2011 decision, the RO granted service connection for right calf, status post shrapnel wound, and assigned a noncompensable evaluation effective December 18, 2009, the day after separation from service. The RO also granted service connection for scars, right leg status post shrapnel injury and assigned a 10 percent rating effective December 18, 2009. In his March 2011 notice of disagreement (NOD), the Veteran disagreed only with the initial noncompensable rating assigned for the right calf, status post shrapnel wound. 38 C.F.R. § 20.201 (2015) (allowing for identification by an appellant of the specific determinations with which he disagrees). In February 2014, the Board remanded the Veteran's claim for further evidentiary development. As will be explained below, a review of the record reflects substantial compliance with the Board's Remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran's claims file has been returned to the Board for further appellate proceedings. In July 2014, the RO increased the assigned rating to a 30 percent, effective May 7, 2014, creating a staged rating as indicated on the title page. The Veteran has not expressed satisfaction with the increased disability rating; this issue, thus, remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). FINDING OF FACT Throughout the pendency of the claim, the Veteran's right calf, status post shrapnel wound, most nearly approximated a severe injury to Muscle Group XI. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 30 percent for right calf, status post shrapnel wound, were met from December 18, 2009 to May 7, 2014. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.56, 4.71, 4.73 Diagnostic Codes (DCs) 5260, 5311(2015). 2. The criteria for an initial rating higher than 30 percent for right calf, status post shrapnel wound, have not been met at any time during the pendency of the claim. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321 (b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.56, 4.71, 4.73 Diagnostic Codes (DCs) 5260, 5311. REASONS AND BASES FOR FINDING AND CONCLUSIONS I. Duties to Notify and Assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.129(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that claimant is expected to provide. The Veteran's claim is a "downstream" issue in that it arose from an initial grant of service connection. The RO issued a letter in October 2009 that advised the Veteran of the evidence necessary to substantiate his claim for service connection, the Veteran's and VA's respective obligations with regard to obtaining evidence, and the process by which disability ratings and effective dates are assigned. Importantly, where, as here, service connection has been granted and the initial ratings and effective dates have been assigned, the claim for service connection have been more than substantiated and proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once a claim for service connection has been substantiated, the filing of a notice of disagreement with the rating of the disability does not trigger additional § 5103(a) notice. See Dingess v. Nicholson, 19 Vet. App. 473, 490-91; Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Accordingly, the duty to notify has been met in this case. As indicated above, the appeal was remanded in February 2014 to, among other things, obtain Social Security Administration (SSA) records and a VA examination to determine the severity of the Veteran's right calf, status post shrapnel wound. VA fulfilled its duty to assist the Veteran in obtaining SSA records and any other identified and available evidence needed to substantiate his claim and affording him VA examinations in December 2009 and May 2014. The Board finds that the VA examination reports are adequate because they are based on consideration of the Veteran's prior medical history and described the right calf, status post shrapnel wound, in sufficient detail to allow the Board to make a fully informed evaluation. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). The Board finds that there is no evidence that additional records have yet to be requested, or that additional examinations are in order. II. Analysis Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Veteran's right calf, status post shrapnel wound, is rated under 38 C.F.R. §§ 4.71, 4.73, DCs 5260-5311. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the Veteran's disability has been characterized as a right calf, status post shrapnel wound, which has been rated on the basis of injury to Muscle Group XI under DC 5311. Injuries to Muscle Group XI are rated under 38 C.F.R. § 4.73, DC 5311. These muscles include the posterior and lateral crural muscles and muscles of the calf, including the triceps surae (gastrocnemius and soleus), tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus, popliteus, and plantaris. The functions of these muscles are propulsion, plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee. 38 C.F.R. § 4.73, DC 5311. Under DC 5311, the following ratings apply: a noncompensable rating is warranted for slight injury, a 10 percent rating is warranted for moderate injury, a 20 percent rating is warranted for moderately severe injury, and a 30 percent rating is warranted for severe injury. Id. Muscle injuries are evaluated in accordance with 38 C.F.R. § 4.56. The pertinent provisions of 38 C.F.R. § 4.56 are as follows: (a) An open comminuted fracture with muscle or tendon damage 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 rated 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 Codes 5301 through 5323, disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe as follows: (1) Slight disability of muscles-(i) Type of injury. Simple wound of muscle without debridement or infection. (ii) History and complaint. Service department record of superficial wound with brief treatment and return to duty. Healing with good functional results. No cardinal signs or symptoms of muscle disability as defined in paragraph (c) of this section. (iii) Objective findings. Minimal scar. No evidence of fascial defect, atrophy, or impaired tonus. No impairment of function or metallic fragments retained in muscle tissue. (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. (4) Severe disability of muscles--(i) Type of injury. Through and through or deep penetrating wound 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. (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, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. (iii) Objective findings. 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. If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the 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 the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56. Under DC 5260, limitation of flexion of a leg warrants a 10 percent rating is if flexion is limited to 45 degrees, and a 20 percent rating is warranted if flexion is limited to 30 degrees. Flexion that is limited to 15 degrees warrants a 30 percent rating. 38 C.F.R. § 4.71a. VA's General Counsel has held that separate ratings may be warranted for limitation of flexion and extension when the criteria for compensable ratings are met for such limitation under DCs 5260 and 5261. VAOPGCPREC 9-2004. Under DC 5261, a limitation of extension of a leg is noncompensable when extension is limited to 5 degrees, warrants a 10 percent rating when it is limited to 10 degrees, a 20 percent rating when it is limited to 15 degrees, a 30 percent rating when limited to 20 degrees, a 40 percent rating when limited to 30 degrees, and a 50 percent rating when limited to 45 degrees. Normal range of motion of the knee is 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2015). Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The Court has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations are, if feasible, to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point, if any, at which such factors cause functional impairment. Mitchell v. Shinseki, 25 Vet. App. 32, 43-4 (2011); DeLuca v. Brown, 8 Vet. App. 202 (1995). Turning to the evidence of record, the Veteran's service records indicate that he was hospitalized in December 2008 for a shrapnel wound he incurred in his right calf. Hospital records reflect that the Veteran had below the knee lacerations and loss of soft tissue. During a private July 2010 psychological evaluation, the Veteran reported that following his in-service shrapnel injury, he was hospitalized for two months. The December 2009 VA examination report reflects the Veteran's history indicating that in December 2008 a shrapnel hit him the in the posterior calf muscle, causing a large wound. Following his injury, he underwent three months of rehabilitation and then had three surgeries, including a skin graft with harvest site to the right thigh. During the December 2009 examination, the Veteran reported ankle pain. Upon examination, the examiner indicated that the Veteran's patella reflexes were normal (+2/4). Motor strength, sensation, peripheral, and pedal pulse were intact. Gait was normal. There was no evidence of edema, ecchymosis, claw foot, tenderness to the right ankle or foot, erythema, or deformity. The examiner indicated that there was good capillary refill and sensation to the toes. Right foot/ ankle range of motion was recorded as normal dorsiflexion (20 degrees), plantar flexion (45 degrees), inversion (30 degrees), and eversion (20 degrees). Following repetitive use testing, this range of motion remained and there was no additional limitation in the range of motion or functional loss. An x-ray report showed no abnormality of the right ankle. The examiner diagnosed shrapnel wound right posterior calf. Additionally, the examiner noted the Veteran's two scars associated with his right calf shrapnel wound. There was one scar on his right thigh that measured at 13 x 8.8 cm and the second scar was on his right calf at measured 10 cm x 18.5 cm. None of the scars were painful or unstable A January 2009 treatment report reveals that the Veteran underwent a split-thickness skin graft (STSG) associated with his right calf shrapnel wound. VA treatment reports dated in June 2010 and March 2011 document the Veteran's complaints of right leg spasms. Notably, during the June 2010 treatment visit, the treatment provider noted that the Veteran's right leg showed noticeable spasm on Holmen's testing. In his March 2011 notice of disagreement, the Veteran stated that his right calf disability more nearly approximates a severe muscle injury, because he suffers from chronic right leg problems that interfere with his daily activities. He described sharp right calf pain, inability to drive after thirty minutes due to craping in the right calf, difficulty with prolonged standing and sitting, and increased sensitivity to weather. He also described that he exhibits decreased limitation of motion. The Veteran was afforded a VA examination in May 2014. The Veteran reported occasional right calf pain and fatigue. Upon examination, the examiner indicated that Veteran's muscle injury involved Muscle Group XI on the right. The examiner found that the Veteran experienced loss of muscle substance, due to his right calf shrapnel wound. The examiner also indicated that the Veteran exhibited lowered threshold of fatigue to his muscle injury. The Veteran had occasional right gastrocnemius pain and fatigue. He had normal right knee flexion, extension, ankle plantar flexion, and ankle dorsiflexion muscle strength. There were ragged, depressed and adherent scars that indicated wide damage to the muscle groups in missile track. There was no evidence of muscle atrophy. He denied use of any assistance devices. The examiner opined that the Veteran's right calf shrapnel wound impacts his daily activities, as he experiences right foot weakness or fatigue, decreased strength in the lower extremity, and pain. In an August 2014 statement, the Veteran indicated that he has experienced the same right calf pain and difficulties since his initial injury in December 2008. For the following reasons, the Veteran's right calf, status post shrapnel wound, has, throughout the pendency of the claim, most nearly approximated the criteria for severe injury to Muscle Group XI. The above evidence reflects that during service, the Veteran was hospitalized a prolong period of time for treatment for his right calf shrapnel wound. Furthermore, during service the Veteran underwent three months of rehabilitation and surgeries, which included a skin graft. Throughout the pendency of the claim, the Veteran has experienced cardinal signs and symptoms such as right calf shrapnel wound pain, fatigue, cramps, loss of strength, and loss of muscle substance. Significantly, during the May 2014 VA examination, the examiner noted that there were ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track associated with the Veteran's muscle injury. Moreover, the Veteran's report of signs and symptoms have been consistent throughout the pendency of the claim and the Board finds them credible. As the Veteran's symptoms have thus approximated the criteria indicating severe muscle injury throughout the pendency of the claim, he is entitled to an initial rating of 30 percent from the December 18, 2009 effective date of the grant of service connection. Although the Board has granted the maximum schedular rating for the entire appeal period under DC 5311, it must consider whether a higher rating is warranted under any other potentially applicable diagnostic code. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991) (regardless of the precise basis of the RO's rating, the Board has a duty to acknowledge and consider all regulations that are potentially applicable). As noted, the Veteran is currently rated under DCs 5260-5311. There were no knee range of motion findings on the December 2009 VA examination and normal knee flexion and extension on the May 2014 VA examination. Moreover, there was no indication that any flare-ups reduced the range of motion to the extent that a rating higher than 30 percent would be warranted under DCs 5260 or 5261. In addition, the maximum schedular rating for limitation of motion of the ankle is 20 percent, and there is no indication that there was ankylosis of the ankle warranting a higher rating under the diagnostic codes applicable to the ankle, DCs 5270 through 5274. Further, although there are other diagnostic codes applicable to muscle injuries, DC 5311 is the only one that specifically references the calf and is therefore the most analogous diagnostic code. Finally in this regard, in the September 2016 post remand brief, the Veteran's representative specifically requested a 30 percent rating and the Board is granting that rating throughout the pendency of the claim. Separate or higher ratings under a different diagnostic code is therefore not warranted in this case. In addition, with regard to the right leg scars, the Veteran was granted a separate rating for these scars and as noted did not challenge or reference the assigned initial rating in his March 2011 NOD. Moreover, the severe rating under DC 5311 specifically take account of the scars and have been considered in granting the initial 30 percent rating from December 18, 2009. See 38 C.F.R. § 38 C.F.R. § 4.14 (2015) (noting that the evaluation of the same disability or the same manifestations of a disability under various diagnoses constitutes prohibited pyramiding); but see Esteban v. Brown, 6 Vet. App. 259 (1994) (finding that when a veteran has separate and distinct manifestations from the same injury he should be compensated under different diagnostic codes). For the foregoing reasons, the evidence reflects that the right calf, status post shrapnel wound has most nearly approximated severe muscle injury throughout the pendency of the claim. As this is the maximum schedular rating and there is no other potentially applicable diagnostic code under which the Veteran can receive a higher or separate rating, an initial 30 percent rating, but no higher, is warranted from December 18, 2009. As the preponderance of the evidence is against any higher or separate rating, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3. III. Additional Considerations As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating criteria adequately contemplate the Veteran's disability picture. Thun, 22 Vet. App. at 115. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms, i.e., marked interference with employment or frequent hospitalization. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptoms of the Veteran's right calf shrapnel wound are contemplated by the applicable rating criteria. The criteria for rating a muscle injury contain a broad range of symptoms. In particular, the schedular rating criteria for Muscle Group XI takes into consideration propulsion, plantar flexion of foot, stabilization of the arch, flexion of the toes, flexion of knee, and the affected muscles of the calf. Furthermore, the rating criteria for the Veteran's right calf shrapnel wound include whether the muscle injury is slight, moderate, moderately severe, or severe. These terms are broad enough to include all of the Veteran's symptoms. The Board therefore finds that the criteria for rating the right calf shrapnel wound contemplate the Veteran's disability picture. Thus, consideration of whether the Veteran's disability caused marked interference with employment or frequent hospitalization is not required. In addition, in Johnson v. McDonald, 762 F.3d 1362, 1365-66 (Fed. Cir. 2014), the Federal Circuit held that "[t]he plain language of § 3.321(b)(1) provides for referral for extra-schedular consideration based on the collective impact of multiple disabilities." Here, however, the issue has not been argued by the Veteran or reasonably raised by the evidence of record. The Veteran has not asserted, and the evidence of record does not suggest, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Yancy v. McDonald, 27 Vet. App. 484, 495 (Fed. Cir. 2016) ("the Board is required to address whether referral for extraschedular consideration is warranted for a veteran's disabilities on a collective basis only when that issue is argued by the claimant or reasonably raised by the record through evidence of the collective impact of the claimant's service-connected disabilities"). The Board will therefore not address the issue further. Additionally, a request for a TDIU whether expressly raised by a veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In other words, if the claimant or the evidence of record reasonably raises the question of whether a veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel with the increased rating claim is the issue of whether a TDIU is warranted as a result of that disability. Id. Here, the Veteran has not reported, and the evidence does not otherwise reflect, that he was unemployed during the pendency of the claim due to his service-connected right calf disability or that he was prevented from securing and following gainful employment due to his right calf disability. Therefore, the issue of entitlement to a TDIU has not been raised by the evidence of record. ORDER An initial 30 percent rating, but no higher, for right calf, status post shrapnel wound, is granted from December 18, 2009 to May 7, 2014, subject to the laws and regulations governing the payment of monetary awards. Entitlement to an initial rating in excess of 30 percent for right calf, status post shrapnel wound, throughout the pendency of the claim is denied. ____________________________________________ Jonathan Hager Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs