Citation Nr: 18154057 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 16-35 962A DATE: November 29, 2018 ORDER The application to reopen the claim for service connection for a lumbar spine strain is granted. Entitlement to a compensable rating for right thigh strain is denied. REMANDED Entitlement to service connection for a lumbar spine disability is remanded. FINDINGS OF FACT 1. In an unappealed January 2011 rating decision, the RO denied service connection for lumbar spine strain. 2. The evidence received since the January 2011 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 lumbar spine strain. 3. Right thigh strain is resolved and there are no current residuals. There is less than moderate injury of Muscle Group XIV. CONCLUSIONS OF LAW 1. The January 2011 decision denying service connection for lumbar spine strain is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been received with respect to the claim of service connection for a lumbar spine disability; therefore, the claim is reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for a compensable rating for right thigh strain are not met or approximated. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, 4.73, 4.59, Diagnostic Code 5314. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty for training (ACDUTRA) from July 2001 to December 2001 and on active duty from May 2003 to May 2004 and November 2004 to February 2006. 1. Whether new and material evidence has been received to reopen the claim for service connection for a lumbar spine disability The Veteran seeks to reopen his claim for service connection for a lumbar spine disability. In general, rating decisions that are not timely appealed are final. See 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. Pursuant to 38 U.S.C. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. See 38 C.F.R. § 3.156(a). In determining whether evidence is new and material, the “credibility of the evidence is to be presumed.” Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 110 (2010), the Court held that the threshold is low. In January 2011 the RO issued a rating decision denying service connection for lumbar spine strain due to a lack of nexus between the Veteran’s lumbar spine disability and his active service. No notice of disagreement or new and material evidence was received within one year. The Veteran submitted a notice of disagreement in January 2013, two years after the prior rating decision. The RO treated this as an application to reopen. The Veteran also submitted a statement from his wife regarding the onset and extent of the Veteran’s lumbar spine disability. As the prior denial was due to a lack of nexus, evidence pertaining to the onset of the disability constitutes new and material evidence. Therefore, the claim is reopened. The claim is addressed in the remand portion below. Entitlement to a compensable rating for right thigh strain The Veteran seeks a higher rating for right thigh strain, currently assigned a noncompensable rating under Diagnostic Code 5314 for disabilities of Muscle Group XIV. 38 C.F.R. §§ 4.71a, 4.73, DC 5314. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Under Diagnostic Code 5314, a disability of Muscle Group XIV warrants a 10 percent rating when moderate, a 30 percent rating when moderately severe and a 40 percent rating when severe. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). There is no moderate muscle injury to the right thigh. Moderate muscle group injury results from a through and through or deep penetrating wound of a short track from s single bullet, small shell or shrapnel fragment, without explosive effect or high velocity missile, residuals of debridement, or prolonged infection. 38 C.F.R. § 4.56. At a May 2016 VA examination, the examiner found that the Veteran’s history and physical examination were unremarkable for a chronic right thigh muscle condition. The examiner noted a diagnosis of right thigh strain, resolved. Although the Veteran experiences pain in the right thigh, the examiner stated that this pain is radicular pain resulting from the Veteran’s lumbar spine disability. Less than moderate muscle injury is demonstrated. The criteria for a compensable Muscle Group XIV injury are not met or approximated. REASONS FOR REMAND 1. Entitlement to service connection for a lumbar spine disability is remanded. The Board cannot make a fully-informed decision on the issue of service connection for a lumbar spine disability because the opinion submitted by the prior VA examiner is inadequate. The June 2009 examiner diagnosed a lumbar spine strain and noted that current x-rays were negative. However, later treatment records indicate that an MRI from July 2009 shows mild disc degenerative changes most prominent at L5-S1 with intravertebral disc space narrowing and disc desiccation. Further, the examiner noted that the Veteran was not treated for a lumbar spine injury during active duty, but failed to address the Veteran’s reports of experiencing back pain during service. The matter is REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any lumbar spine disability. The examiner must opine whether it is at least as likely as not related to service, including the Veteran’s reported injury while performing squatting exercises. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issue on appeal. If the benefit sought is not granted to   the Veteran’s satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Creegan, Associate Counsel