Citation Nr: 18141032 Decision Date: 10/09/18 Archive Date: 10/09/18 DOCKET NO. 15-41 139A DATE: October 9, 2018 ORDER Entitlement to an increased rating for right lower leg peroneus brevis fascial defect, currently evaluated as 10 percent disabling, is denied. New and material evidence having been submitted, the claim for service connection for a right hip disorder is reopened. REMANDED Entitlement to service connection for a right hip disorder, to include as secondary to service-connected right lower leg peroneus brevis fascial defect, is remanded. FINDINGS OF FACT 1. The symptoms of the Veteran’s right lower leg peroneus brevis fascial defect does not manifest in any complaints of the cardinal symptoms of muscle wounds. The record also does not demonstrate loss of deep fascia, muscle substance, or normal firm resistance of the muscles of the right side of muscle group XI when compared to the left side, and there is no positive evidence of impairment on strength and endurance testing of the right side of muscle group XI when compared to the left side. 2. The Regional Office (RO) previously considered and denied the Veteran’s claim for service connection for a right hip disorder in a January 2009 rating decision. The Veteran was informed of the decision and of his appellate rights, but he did not appeal. There was also no new and material evidence received within one year of the determination. 3. The evidence received since the January 2009 rating decision, by itself, or in conjunction with previously considered evidence, relates to an unestablished fact necessary to substantiate the claim for service connection for a right hip disorder. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 for a right lower leg peroneus brevis fascial defect from an injury which caused damage to Muscle Group XI have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.55, 4.56; 4.73, Diagnostic Code 5311. 2. The January 2009 rating decision that denied service connection for a right hip disorder is final. 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 3.156, 20.200, 20.202, 20.302, 20.1103. 3. The evidence received subsequent to the January 2009 rating decision is new and material, and the claim for service connection for a right hip disorder is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2002 to June 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision. The Board notes that the Veteran submitted a substantive appeal in February 2016 with respect to the denial of a program of self-employment services under Chapter 31, Title 38, U.S.C. However, in February 2016, the Agency of Original Jurisdiction (AOJ) notified the Veteran that the submission was untimely as to an appeal for that issue. Increased Rating Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. 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. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. The Veteran’s right lower leg peroneus brevis fascial defect is currently assigned a 10 percent evaluation pursuant to 38 C.F.R. § 4.73, Diagnostic Code 5326-5311. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 5326, an extensive muscle hernia without other injury to the muscle is assigned a 10 percent evaluation. Diagnostic Code 5311 provides the rating for Muscle Group XI. This muscle group involves the propulsion and plantar flexion of the foot: (1) stabilization of the arch, (2,3) flexion of the toes, (4,5) flexion of the knee, (6) posterior and lateral crural muscles, and muscles of the calf: (1) triceps surae (gastrocnemius and soleus), (2) tibialis posterior, (3) peroneus longus, (4) peroneus brevis, (5) flexor hallucis longus, (6) flexor digitorum longus, (7) popliteus, and (8) plantaris. A 10 percent rating is provided for a moderate muscle group injury; a 20 percent rating for a moderately severe muscle group injury; and a maximum 30 percent rating for a severe muscle group injury. 38 C.F.R. § 4.73, Diagnostic Code 5311. Evaluation of muscle injuries as slight, moderate, moderately severe, or severe, is based on the type of injury, the history and complaints of the injury, and objective findings. 38 C.F.R. § 4.56. A moderate disability of the muscles is characterized by evidence of a 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. Service department record or other evidence of in-service treatment for the wound should be considered. Record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability should also be noted, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings should include 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 should be noted when compared to the sound side. Id. A moderately severe disability of the muscles is characterized by evidence of 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, or intermuscular scarring. Service department records or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of a wound of severe grade should be considered. Records in the file of consistent complaints of cardinal symptoms of muscle wounds should also be noted. Evidence of unemployability due to an inability to keep up with work requirements may be considered. Objective findings should include relatively large entrance and (if present) exit scars so situated as to indicate the track of a missile through important muscle groups. 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 may be considered. Tests of strength and endurance of the muscle groups involved may also give evidence of marked or moderately severe loss. Id. A severe disability of the muscles is characterized by evidence of a through and through or deep penetrating wound by a high velocity missile, or large or multiple low velocity missiles, or with a shattering bone fracture or comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, with intermuscluar binding and scarring. Service department records or other sufficient evidence showing hospitalization for a prolonged period in service for treatment of a wound of severe grade should be considered. Records in the file of consistent complaints of cardinal symptoms of muscle wounds, worse than those for a moderately severe muscle injury, should also be noted. Evidence of unemployability due to an inability to keep up with work requirements may be considered. Objective findings should include ragged, depressed, and adherent scars indicating wide damage to muscle groups in the missile track. Indications on palpation of loss of deep fascia, or loss of muscle substance, or soft, flabby muscles in the wound area, or muscles that swell and harden abnormally in contraction may be considered. Tests of strength and endurance of the muscle groups involved may also give evidence of severe impairment of function. If present, other evidence of severe muscle disability include: x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and an explosive effect of the missile; adhesion of the 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; diminished muscle excitability to pulsed electrical current in electrodiagnostic tests; visible or measurable atrophy; adaptive contraction of an opposing group of muscles; atrophy of muscle groups not in the track of the missile, particular of the trapezius and serratus in wounds of the shoulder girdle; and induration or atrophy of an entire muscle following simple piercing by a projectile. Id. During a February 2015 VA examination, the examiner indicated that the Veteran’s diagnosed peroneus brevis fascial defect of the right lower leg was a non-penetrating muscle injury to muscle group XI. The Veteran described numbness and tingling in his right lateral lower leg, and he stated that his right foot weakness caused him to fall on occasion. He reported occasional stabbing pain and a dull aching sensation in his right leg. He related that he had daily pain that worsened with every day activities and improved with rest. He denied any current treatment for the fascial defect. The examiner indicated that the Veteran had no scars or known fascial defects associated with his muscle injury. He noted that the Veteran’s muscle injury did not affect his muscle substance or function and that the Veteran did not have any signs or symptoms attributable to muscle injuries. Muscle strength testing revealed normal strength (5/5) of the right and left ankles in plantar flexion and dorsiflexion. The Veteran had no muscle atrophy. The examiner opined that there was no functional impairment of the right lower extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner also opined that the Veteran’s muscle injury did not impact his ability to work, such as resulting in an inability to keep up with work requirements due to his muscle injury. During an April 2017 VA examination, the examiner noted that the Veteran’s diagnosed peroneus brevis fascial defect of the right lower leg was a non-penetrating muscle injury to muscle group XI. The Veteran described constant, stabbing, burning pain that he treated with Ibuprofen and pain injections. The examiner indicated that the Veteran had a history of an extensive muscle hernia without other injury to the muscle of the peroneus brevis. She noted that the Veteran did not have any scars associated with the muscle injury. She related that he had a fascial defect other than some loss of deep fascia or palpation showing loss of deep fascia associated with the muscle injury. The examiner found that the Veteran’s muscle injury caused some loss of muscle substance. He also had consistent weakness and fatigue-pain of the right muscle groups XIII, XIV, and XII. Muscle strength testing revealed less than normal strength (4/5) for right ankle dorsiflexion, normal strength (5/5) for left ankle dorsiflexion, and normal strength (5/5) for right and left ankle plantar flexion. The examiner opined that the Veteran did not have functional impairment of the right lower extremity such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. She opined that the Veteran’s muscle injury impacted his ability to work because he was unable to stand for prolonged periods of time, squat down, lift heavy objects using his legs, and ambulate for prolonged periods of time. She also opined that there was no change in the Veteran’s service-connected diagnosis, and no additional diagnoses were rendered. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an increased evaluation for right lower leg peroneus brevis fascial defect involving muscle group XI. The Veteran did not sustain 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, with intermuscular scarring. Moreover, during the appeal period, the Veteran did not have complaints of the cardinal symptoms of muscle wounds. See February 2015, April 2017 VA muscle injuries examinations. The record also does not demonstrate loss of deep fascia, muscle substance, or normal firm resistance of the muscles of the right side of muscle group XI when compared to the left side. Id. The Board notes that the April 2017 VA examiner indicated that the Veteran had some loss of muscle substance of the right lower leg, which is consistent with moderate disability of the muscle and the assigned 10 percent evaluation. In addition, he did not have evidence of impairment on strength and endurance testing of the right side of muscle group XI when compared to the left side. Id. Notably, he had normal strength (5/5) of the right and left ankles in plantar flexion and dorsiflexion on muscle strength testing in February 2015, and he had less than normal strength (4/5) for right ankle dorsiflexion, normal strength (5/5) for left ankle dorsiflexion, and normal strength (5/5) for right and left ankle plantar flexion on muscle testing in April 2017. While the April 2017 examiner indicated that the Veteran had less than normal strength for right ankle dorsiflexion compared to normal strength for left ankle dorsiflexion, the Board does not find that the muscle strength test demonstrated positive evidence of impairment. Finally, the Veteran shows no signs of the other evidence of moderately severe muscle disability listed in 38 C.F.R. § 4.56. For the reasons set forth above, the Board finds that the preponderance of the evidence is against a finding that a higher rating is warranted for the right lower leg peroneus brevis fascial defect. New and Material Evidence The Veteran’s claim for service connection for a right hip disorder, to include as secondary to service-connected right lower leg peroneus brevis fascial defect, was previously considered and denied by the AOJ in a rating decision dated in January 2009. The evidence of record at the time of the January 2009 rating decision included the Veteran’s service treatment records, Social Security Administration (SSA) records, and lay statements in support of his claim. In the January 2009 rating decision, the AOJ found that the evidence of record showed ongoing treatment for increased hip pain; however, none of the evidence related his claimed hip dysphasia to his service-connected right lower leg peroneus brevis fascial defect or to his military service. The Veteran was notified of the January 2009 rating decision and of his appellate rights; however, he did not submit a notice of disagreement. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. There was also no evidence received within one year of the issuance of the decision. Therefore, the January 2009 rating decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.156(b), 20.200, 20.201, 20.302, 20.1103. In December 2014, the Veteran requested that his claim for service connection for a right hip disorder be reopened. The evidence associated with the claims file subsequent to the January 2009 rating decision includes the Veteran’s statements, VA treatment records, private treatment notes, and an October 2016 VA medical opinion. In a July 2016 VA treatment record, the treating physician stated, “I believe it is more likely than not that the [V]eteran’s [right] foreleg initial pathology caused abnormal [right] leg biomechanics and kinetics [with] gait and stance and has led to [the right] hip pathology.” In addition, the October 2016 VA examiner opined that it was less likely than not that the Veteran’s right total hip replacement was secondary to the fascial defect of the right peroneus brevis muscle. As such, the evidence relates to unestablished facts necessary to substantiate the claim. Moreover, for purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). Accordingly, the Board finds that new and material evidence has been presented to reopen the Veteran’s previously denied claim for service connection for a right hip disorder. However, as will be explained below, the Board is of the opinion that further development is necessary before the merits of the Veteran’s claim can be addressed. REASONS FOR REMAND During the pendency of the appeal for service connection for a right hip disorder, the Veteran underwent a right total hip replacement in August 2016 by a private orthopedic surgeon. However, the August 2016 operative report and any post-surgical follow-up treatment records have not been associated with the record. On remand, the AOJ should obtain these records. In addition, in a November 2017 supplemental statement of the case (SSOC), the AOJ referred to a February 2016 VA medical opinion by a VA physician at the Louisville VA Medical Center (VAMC). The February 2016 VA medical opinion is not associated with the record. The Board notes that the record contains a VA medical opinion dated in October 2016 which appears to be the opinion referenced in the November 2017 SSOC. However, on remand, the AOJ should clarify whether there is an outstanding VA medical opinion dated in February 2016, and, if so, it should be associated with the record. With respect to the October 2016 VA medical opinion, the Board finds that the opinion is inadequate. The October 2016 VA examiner opined that it was less likely than not that the Veteran’s right total hip replacement was secondary to the fascial defect of the right peroneus brevis muscle. The examiner noted that the peroneus brevis muscle starts on the lateral side of the fibula and inserts on the tuberosity on the lateral side of the fifth metatarsal bone of the ankle. The examiner stated that the peroneus brevis muscle’s action on the foot is plantar flexion and eversion of the foot at the ankle. He related that there was no demonstrable deficit of such actions of this muscle in performing such actions as could have produced an abnormal gait so as to cause chronic abnormal biomechanical forces on the right hip leading to arthritis and, ultimately, a total hip replacement throughout the Veteran’s records. Rather, he opined that the Veteran’s right hip arthritis was as likely as not a congenital predilection or personal health issue leading to demonstrable arthritis of the right hip wholly unrelated to the fascial deficit over the right peroneus brevis muscle. Nevertheless, the October 2016 VA examiner did not address the aggravation prong of secondary service connection. Therefore, on remand, a clarifying VA medical opinion would be helpful to determine the nature and etiology of the Veteran’s claimed right hip disorder. The matter is REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the Veteran provide the names and addresses of any and all health care providers who have provided treatment for his right hip. A specific request should be made for private treatment records from Commonwealth Orthopedics related to an August 2016 right total hip replacement. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. The AOJ should determine whether there is an outstanding VA medical opinion dated in February 2016, as referenced in the November 2017 SSOC, that has not been associated with the claims file. If so, the February 2016 VA medical opinion should be associated with the record. 3. After completing the foregoing development, the AOJ should refer the Veteran’s claims file to the October 2016 VA examiner or, if he is unavailable, to another suitably qualified VA examiner for a clarifying opinion to determine the nature and etiology of his right hip disorder. The examiner is requested to review all pertinent records associated with the claims file. The Veteran has contended that his current right hip disorder was caused or aggravated his service-connected right lower leg peroneus brevis fascial defect disability. Specifically, he reported that he limps and favors his right leg which places stress on his right hip. The examiner should note that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The examiner should opine as to whether it is at least as likely as not that any current right hip disorder manifested during service or is otherwise causally or etiologically related to his service, to include any injury or therein. The examiner should also state whether it is at least as likely as not that the Veteran’s current right hip disorder was either caused or permanently aggravated by his service-connected right lower leg peroneus brevis fascial defect. In rendering this opinion, the VA examiner should address a July 2016 VA treatment record, in which the treating physician stated, “I believe it is more likely than not that the [V]eteran’s [right] foreleg initial pathology caused abnormal [right] leg biomechanics and kinetics [with] gait and stance and has led to [the right] hip pathology.” (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is medically sound to find in favor of such a conclusion as it is to find against it.) A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history [,]” 38 C.F.R. § 4.1, copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Osegueda, Counsel