Citation Nr: 1815258 Decision Date: 03/13/18 Archive Date: 03/19/18 DOCKET NO. 09-23 932 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial compensable evaluation for myositis ossificans of the right tibia and fibula prior to March 20, 2014 and in excess of 30 percent thereafter. REPRESENTATION Veteran represented by: National Association of County Veterans Service Officers WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Bilstein, Associate Counsel INTRODUCTION The Veteran had active military service from June 1982 to January 2007. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania. In December 2010, the Veteran testified at testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of the hearing is of record. In January 2014, April 2016, and April 2017, the Board remanded the case for further evidentiary development regarding the above-named issue. The Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). In a January 2015 rating decision, the RO assigned a 30 percent rating for myositis ossificans of the right tibia and fibula, effective March 20, 2014. As the evaluation of 30 percent for myositis ossificans of the right tibia and fibula does not represent a total grant of the benefit sought on appeal, the claim for an increased evaluation remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). FINDING OF FACT Throughout the pendency of the appeal, the Veteran's myositis ossificans of the right tibia and fibula has been manifested by a severe disability of Muscle Group XI. CONCLUSION OF LAW Throughout the pendency of the appeal, the criteria for an initial 30 percent evaluation, but not higher, for myositis ossificans of the right tibia and fibula have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.56, 4.73, Diagnostic Code 5311. REASONS AND BASES FOR FINDING AND CONCLUSION Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities (Rating Schedule), which is based, as far as practically can be determined, on average impairment in earning capacity. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The Veteran's myositis ossificans of the right tibia and fibula is rated as noncompensable prior to March 20, 2014 under 38 C.F.R. § 4.71a, Diagnostic Code 5023. Since March 20, 2014, the Veteran's myositis ossificans of the right tibia and fibula is rated as 30 percent disabling under 38 C.F.R. § 4.73, Diagnostic Code 5311. The pertinent provisions of 38 C.F.R. § 4.71a, Diagnostic Codes 5013 through 5024, note that the diseases under these codes, including Diagnostic Code 5023 myositis ossificans, are rated on limitation of motion of affected parts, as arthritis, degenerative. Under Diagnostic Code 5003, arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic code(s) for the specific joint involved. If, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic codes, a 10 percent rating will be applied if limitation of motion is established by X-ray findings and there is objective evidence of limitation of motion, such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003 (2017). Note 2 provides that the 20 percent and 10 percent ratings based on x-ray findings, pursuant to Diagnostic Code 5003, will not be utilized in rating conditions listed under diagnostic code to 5013 to 5024, inclusive. Diagnostic Codes 5260 and 5261 provide the rating criteria for limitation of knee motion. 38 C.F.R. § 4.71a. Normal range of motion of the knee is 0 degrees in extension and 140 degrees in flexion. 38 C.F.R. § 4.71a Plate II. Diagnostic Code 5260 provides that limitation of knee flexion to 60 degrees is rated as noncompensable; limitation of knee flexion to 45 degrees is rated as 10 percent disabling; limitation of knee flexion to 30 degrees is rated as 20 percent disabling; and limitation of knee flexion to 15 degrees is rated as 30 percent disabling. Under Diagnostic Code 5261, a noncompensable rating will be assigned for limitation of extension of the leg to 5 degrees; a 10 percent rating will be assigned for limitation of extension of the leg to 10 degrees; a 20 percent rating will be assigned for limitation of extension of the leg to 15 degrees; a 30 percent rating will be assigned for limitation of extension of the leg to 20 degrees; a 40 percent rating will be assigned for limitation of extension of the leg to 30 degrees; and, a 50 percent rating will be assigned for limitation of extension of the leg to 45 degrees. Diagnostic Code 5311 pertains to a disability of Muscle Group XI. The muscles in Muscle Group XI affect propulsion, plantar flexion of the foot, stabilization of the arch, flexion of the toes, and flexion of the knee, and include posterior and lateral crural muscles and muscles of the calf, which include the triceps surae, tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus, popliteus, and plantaris. Under Diagnostic Code 5311, a noncompensable rating is warranted for a slight disability, a 10 percent rating is warranted for a moderate disability, a 20 percent rating is warranted for a moderately severe disability, and a 30 percent rating is warranted for a severe disability. 38 C.F.R. § 4.56 provides guidance for the evaluation of muscle disabilities as slight, moderate, moderately severe, or severe. In this instance, the Veteran suffered a non-penetrating muscle injury. See March 2014 and May 2015 VA examinations. As relevant, 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). The type of injury associated with a "slight" muscle disability results from an injury that is a simple muscle wound without debridement or infection. Service department records must show a superficial wound with brief treatment and return to duty, as well as healing with good functional results. There must be no evidence of any of the cardinal signs or symptoms of muscle disability. The objective findings must show that there is a minimal scar, and must be negative for evidence of a fascia defect, atrophy, or impaired tonus, as well as be negative for impairment of function or retained metallic fragments in the muscle tissue. 38 C.F.R. § 4.56(d)(1). The type of injury associated with a "moderate" muscle disability is 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. A history with regard to this type of injury should include service department evidence or other evidence of in-service treatment for the wound and consistent complaints of one or more of the cardinal signs and symptoms of muscle disability, 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 and 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. 38 C.F.R. § 4.56(d)(2). The type of injury associated with a "moderately severe" muscle disability is a through and through or deep penetrating wound by a small high-velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intramuscular scarring. A history with regard to this type of injury should include prolonged hospitalization in service for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups, and indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3). The type of injury associated with a "severe" muscle disability is a 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. A history with regard to this type of injury should include service department record or other evidence showing hospitalization for a prolonged period for treatment of wound, consistent complaints of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. Objective findings should include: 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; or 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. 38 C.F.R. § 4.56(d)(4). 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. Id. At a May 2007 VA examination, the Veteran reported a history of a stress fracture of the right fibula when in the military. He described intermittent mild right leg pain that lasted approximately two to three hours. He denied any history of osteomyelitis, weakness, stiffness, swelling, heat, redness, drainage, or instability. He had a normal gait and denied flare-ups or history of infections. However, the Veteran also reported that he had difficulty in standing, walking more than half an hour, walking up and down steps, and climbing due to pain. The examiner observed that the Veteran had no obvious deformity, angulation, false motion, or shortening of the right leg. The examiner also determined that the Veteran had no evidence of malunion, nonunion, loose motion, false joint, or pain on motion. He assessed the Veteran with a normal orthopedic examination of the right leg. At a VA examination in December 2009, the Veteran reported that the pain in his right tibia and fibula have worsened since his military separation in January 2007. The Veteran denied any history of bone cancer. The examiner observed that there was no evidence of callous formation of both feet and no evidence of unusual shoe pattern wear to suggest abnormal weight bearing. The Veteran had a normal gait and denied use of assistive devices to walk. He complained of moderate constant pain of his right tibia and fibula but denied weakness, stiffness, swelling, heat, redness, drainage, instability, and locking. He had no history of osteomyelitis or surgery. The Veteran also denied flare-ups but endorsed difficulty with prolonged standing, walking more than five minutes, and step climbing. During physical examination of the right leg, the examiner observed that there was no evidence of deformity, angulation, false or loose motion, shortening, intraarticular involvement, malunion, nonunion, or false joint. The Veteran had no pain on motion, tenderness, edema, weakness, redness or heat. The examiner determined the Veteran had a normal orthopedic examination of the leg. However, in an August 2010 statement, the Veteran reported that his leg condition has worsened during the pendency of the appeal. Similarly, at the December 2010 Board hearing, the Veteran reported right leg pain in his lower leg that lasted two to three hours, alleviated only with rest. He stated that he had difficulty walking and standing. He stated that although he worked in a sedentary job, he had discomfort with walking to and from meetings. He also described right leg fatigue when he walked more than one block. The Veteran reported he could stand up to 20 minutes without pain and rest only lessens the intensity of the pain but that it does not go away. The Veteran reported that his symptoms have not changed significantly since his December 2009 VA examination. Likewise, at another VA examination in March 2014, the examiner concluded that the Veteran's myositis ossificans was a non-penetrating muscle injury of Group XI of the right leg and that the Veteran did not have a primary knee condition. The examiner noted that the Veteran did not have any scars or evidence of fascial defects associated with the injury but did have some impairment of muscle tonus and visible or measurable muscular atrophy. The examiner determined the Veteran had the following cardinal signs attributable to muscle injuries, consistent at a more severe level: loss of power, weakness, lower threshold of fatigue, and fatigue-pain. The Veteran also presented with consistent impairment of coordination and uncertainty of movement. During muscle strength testing, the Veteran presented with 3/5 strength (no movement against resistance) during right knee flexion and extension. The examiner observed that the Veteran had a two-centimeter difference of muscle bulk on the atrophied right leg. The Veteran used a cane constantly. The examiner opined that the Veteran could not perform any kind of physical labor, but was capable of sedentary work, due to his permanent impaired locomotion and loss of strength of the right leg. In May 2015, the Veteran was afforded another VA examination for his right leg condition. The examiner diagnosed the Veteran with right knee strain associated with myositis ossificans, an injury to Muscle Group XI. Although the Veteran denied flare-ups of the right leg, he endorsed functional loss, specifically pain in the right leg and knee with walking. The examiner noted abnormal range of motion of the right knee-with flexion limited to 100 degrees and normal extension, pain with weight bearing, tenderness at the site of the injury, and reduced muscles strength (active movement against some resistance). The examiner determined the Veteran did not have ankylosis, recurrent subluxation, or lateral instability of the right knee, nor did he have a meniscus/semilunar cartilage condition. In an associated muscle injury examination, the examiner also determined the Veteran did not have any scars or evidence of fascial defects associated with the injury and that his injury did not affect muscle substance or function. The examiner stated that the Veteran had the following consistent cardinal signs attributable to muscle injuries: weakness, lower threshold of fatigue, and fatigue-pain. The Veteran had no evidence of muscle atrophy but did use a cane constantly for ambulation. He had full muscle strength of ankle plantar flexion. The examiner opined the Veteran would be unable to work in a job that required standing or walking for more than 15 minutes at a time due to his right leg condition. Based on the foregoing, the Board finds that there is no evidence that the Veteran's Muscle Group XI disability just suddenly appeared on March 20, 2014, the date of the March 2014 VA examination. To the contrary, the evidence shows that the Veteran has claimed right leg pain and fatigue since his discharge from service, and that he continuously complained of pain and fatigue through May 2015. In Swain v. McDonald, 27 Vet. App. 219, 224 (2015), the Court held that an "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that [the veteran's disability] first manifested" (citing DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011); Hazan v. Gober, 10 Vet. App. 511, 521 (1997) (noting that for increased ratings claims, section 5110(b)(2) requires VA to "review all the evidence of record"). The Board finds that since February 1, 2007, the disability picture for the Veteran's myositis ossificans of the right tibia and fibula most closely approximates the criteria for a rating of 30 percent for severe muscle disability of Muscle Group XI under Diagnostic Code 5311. Given the findings of decreased range of motion of the knee, loss of muscle strength, visible muscle atrophy, and cardinal signs to include loss of power, weakness, lower threshold of fatigue, fatigue-pain, impairment of coordination, and uncertainty of movement, the evidence is in relative equipoise as to whether the Veteran has a severe Muscle Group XI disability warranting a 30 percent evaluation throughout the pendency of the appeal. Resolving reasonable doubt in favor of the Veteran, the Board finds that a 30 percent rating for myositis ossificans of the right tibia and fibula is warranted from February 1, 2007, the date of service connection. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In making this determination, the Board first acknowledges its duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242 (2011); AB v. Brown, 6 Vet. App. 35 (1993). Additionally, the Board also notes that the Veteran is entitled to ratings under whichever Diagnostic Codes are more favorable. In this vein, the Board finds that a rating of 30 percent under Diagnostic Code 5311 is warranted throughout the pendency of the appeal. This rating shall replace the rating assigned pursuant to Diagnostic Code 5023 and will be effective for the entire claim period. Replacing the noncompensable rating under Diagnostic Code 5023 with a 30 percent rating under Diagnostic Code 5311 is aligned with the benefit-maximization and favorability principles mentioned immediately above. The Board notes that this is the maximum schedular rating based on injuries of Muscle Group XI. 38 C.F.R. § 4.73, Diagnostic Code 5311. The Board has also considered whether separate or increased evaluations are warranted under any other Diagnostic Codes pertaining to knee disabilities that would afford the Veteran a higher rating. There is no evidence of ankylosis of the knee to warrant a rating under Diagnostic Code 5256; no evidence of recurrent subluxation or lateral instability to warrant a rating under Diagnostic Code 5257; no evidence of symptomatic removal of semilunar cartilage to warrant a rating under Diagnostic Code 5259; no evidence of dislocated semilunar cartilage with frequent "locking," pain, and effusion to warrant a rating under Diagnostic Code 5258; no evidence of malunion or nonunion of the tibia and fibula to warrant a rating under Diagnostic Code 5262 for impairment of the tibia and fibula; and no evidence of genu recurvatum to warrant a rating under Diagnostic Code 5263, as the foregoing conditions and symptoms were neither objectively documented during examinations and treatment nor described by the Veteran during the claim period. See 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5256, 5257, 5258, 5259, 5262, 5263; see also VAOPGCPREC 9-04; VAOPGCPREC 23-97. The Board acknowledges that the medical evidence of record indicates that flexion and extension of the Veteran's right knee has been limited by pain throughout the claim period. However, as the level of such limitation of flexion and extension is noncompensable under Diagnostic Codes 5260 and 5261, the Board has herein rated his pain along with other symptoms, as 30 percent disabling under Diagnostic Code 5311, and the award of ratings under both diagnostic codes would in this case amount to pyramiding. See 38 C.F.R. § 4.14 (2017). For all of the foregoing reasons, separate or higher ratings are not warranted for the Veteran's myositis ossificans of the right tibia and fibula. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An initial evaluation of 30 percent, but no higher, for myositis ossificans of the right tibia and fibula is granted from February 1, 2007. ____________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs