Citation Nr: 20004264 Decision Date: 01/17/20 Archive Date: 01/17/20 DOCKET NO. 19-10 381 DATE: January 17, 2020 ORDER New and material evidence having been received, the appeal to reopen the claim for entitlement to service connection for intermittent back pain, now diagnosed as degenerative disc disease (DDD) and degenerative joint disease (DJD) of the lumbar spine (hereafter referred to as a "low back condition"), is granted. Entitlement to a higher initial 10 percent disability rating, but no higher, for service-connected tibialis anterior muscle injury, from February 28, 2017, is granted. REMAND Entitlement to service connection for a low back condition is remanded. FINDINGS OF FACT 1. The evidence associated with the claims file since the December 1989 final denial of service connection for a low back condition includes evidence that relates to an unestablished fact necessary to substantiate the claim, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim for service connection for a low back condition. 2. For the entire initial rating period on appeal from February 28, 2017, the Veteran’s service-connected tibialis anterior muscle injury manifested as moderate impairment of dorsiflexion, extension of toes, and/or stabilization of the arch. CONCLUSIONS OF LAW 1. Evidence received since the December 1989 rating decision is new and material, and reopening of the Veteran’s claim for entitlement to service connection for a low back condition is warranted. 38 U.S.C. §§ 5108, 7105(c); 38 C.F.R. §§ 3.156(a), 20.302, 20.1103. 2. Resolving all reasonable doubt in the Veteran’s favor, the criteria for entitlement to an initial 10 percent disability rating for service-connected tibialis anterior muscle injury from February 28, 2017 have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.55, 4.56, 4.73, Diagnostic Code (DC) 5312. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1979 to August 1987. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. New and Material Evidence VA may reopen a claim that previously has been denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New evidence is evidence not previously submitted to agency decision makers, and material evidence is 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 final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). Regarding the newly submitted evidence, the United States Court of Appeals for Veterans Claims (Court) has held that 38 C.F.R. § 3.156(a) must be read as creating a low threshold, which suggests a standard that would require reopening if newly submitted evidence, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim. Shade v. Shinseki, 24 Vet. App. 110, 117–18 (2010). Furthermore, the Court has held that evidence as to each previously unproven element of a claim is not required for the claim to be reopened. Id. at 121. VA is required to review for newness and materiality only the evidence submitted by a claimant since the last final disallowance of the claim on any basis, whether a decision on the underlying merits or a petition to reopen. Evans v. Brown, 9 Vet. App. 273, 283 (1996). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence generally is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). Regardless of any RO determinations that new and material evidence has been submitted to reopen a previously denied claim, the Board still must review whether new and material evidence has been submitted. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). When the Veteran’s claim originally was denied in December 1989, VA noted that the Veteran’s complaint of back pain was acute during service and did not show on examination. In essence, the Veteran’s claim was denied because he had no diagnosable condition. In July 2019, VA scheduled the Veteran for an examination of his back, at which time he was diagnosed with DDD and DJD of his lumbar spine. Because the Veteran is not required to submit new and material evidence as to each unestablished element of his claim, the fact that the record now shows a diagnosable condition of his back is considered new and material evidence and is enough to reopen his claim. See Shade, 24 Vet. App. at 121; 38 C.F.R. § 3.156(a). Increased Rating The Veteran persistently has argued that he experiences numbness in his left foot, and the July 2019 back examination revealed that he does indeed have radiculopathy of the left lower extremity; this was verified by a separate peripheral nerve examination. The issue on appeal, however, is the Veteran’s muscle injury, not a nerve condition caused by a current back condition. On remand, should the Veteran be awarded service connection for a back condition, then VA properly can assign a separate compensable rating for any radicular symptoms the Veteran experiences. Thus, the Board may not consider any radicular symptoms the Veteran currently experiences in rating the muscle injury. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Injuries to the tibialis anterior, extensor digitorum longus, extensor hallucis longus, and peroneus tertius are rated under 38 C.F.R. § 4.73, DC 5312. These muscles control dorsiflexion, extension of the toes, and stabilization of the arch. Under this code, a noncompensable rating is warranted for a slight injury, a 10 percent rating for a moderate injury, a 20 percent rating for a moderately severe injury, and a 30 percent rating for a severe injury. A slight muscle disability is defined as a simple wound of the muscle without debridement or infection. Such a wound should have a history of brief treatment and return to duty, exhibiting healing with good functional results, and no cardinal signs and symptoms. Residuals include minimal scar, no impairment of function, no retained metallic fragments, and no evidence of fascial defect, atrophy, or impaired tonus. 38 C.F.R. § 4.56(d)(1). A moderate muscle disability is defined as 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. Such a wound should result in consistent complaint of one or more of the cardinal signs and symptoms, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Residuals 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). A through and through injury with muscle damage shall be evaluated at no less than a moderate disability. 38 C.F.R. § 4.56(b). A moderately severe muscle disability is defined as a through and through or deep penetrating wound by a small high velocity missile or a large low velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. Such a wound should have a record of prolonged hospitalization for treatment, a record of consistent complain of cardinal signs and symptoms, and, if present, evidence of inability to keep up with work requirements. Residuals include 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, and tests of strength and endurance with positive evidence of impairment compared with sound side. 38 C.F.R. § 4.56(d)(3). A severe muscle disability is defined as a through and through or deep penetrating wound due to a high velocity missile or large and 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. Such a wound should have a record of prolonged hospitalization for treatment, a record of consistent complaint of cardinal signs and symptoms worse than those shown for a moderately severe disability, and, if present, evidence of inability to keep up with work requirements. Residuals include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track; palpation showing loss of deep fascia or muscle substance, or soft flabby muscles in the wound area; abnormal swelling and hardening in muscle contraction; and tests of strength, endurance, or coordinated movements indicating severe impairment of function compared to sound side. A severe disability can also be shown by x-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile; adhesion of scar to bone; diminished muscle excitability to pulsed electrical current; visible or measurable atrophy; adaptive contraction of an opposing muscle group; atrophy of muscle groups not in the track of the missile; or induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4). An open comminuted fracture with muscle or tendon damage will be evaluated as severe unless muscle damage is minimal. 38 C.F.R. § 4.56(a). A June 2017 VA examination report noted physical examination of the Veteran and review of the claims file, and recited the Veteran’s complaints and medical history. The report noted that the Veteran has a non-penetrating muscle injury from a 1987 facial rent release due to an in-service motor vehicle accident. The Veteran has minimal scars. The Veteran did not report or exhibit any of the cardinal signs or symptoms of a muscle disability. Left ankle dorsiflexion strength was normal, and there was no muscle atrophy present. The Veteran does not use any assistive devices, but the examiner noted that the Veteran would not be able to perform physically demanding work due to this condition. Foot examinations performed at a VA medical center (VAMC) in April 2018 and May 2019 noted no problems with the Veteran’s left foot. Most of the complaints in the VAMC records pertain to the numbness the Veteran experiences; however, there are general complaints of left foot pain. As the regulations indicate, where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt exists, the tie goes to the Veteran. 38 C.F.R. § 4.3. The June 2017 examination shows that the Veteran’s muscle injury falls between the criteria of a slight and moderate muscle injury to the tibialis anterior. Under the criteria for slight injury (noncompensable), the injury should result in brief treatment and return to duty with healing and good functional results. To the contrary, this condition, among others, ultimately resulted in the Veteran’s medical discharge, and the June 2019 VA examiner stated that this muscle injury limits the Veteran’s ability to perform physically demanding work, i.e. functional limitation is present. On the other hand, the Veteran’s muscle injury was not the result of a deep penetrating wound (as required for a moderate injury) and he exhibited none of the cardinal signs or symptoms of a muscle disability, a fact indicative of a slight muscle disability. Thus, the Veteran’s muscle disability straddles the line between a slight and moderate muscle injury. In the face of reasonable doubt regarding which evaluation to assign, the Board will afford said reasonable doubt to the Veteran and assign him an initial 10 percent rating. See 38 C.F.R. §§ 4.56, 4.73, DC 5312. As the Veteran exhibited some of the signs of a slight and some of the signs for a moderate muscle disability, the Board finds that he is not entitled to an evaluation higher than 10 percent and that his disability does not manifest any of the criteria for a moderately severe or severe muscle disability. REASONS FOR REMAND VA’s duty to assist includes assisting the veteran in the procurement of relevant private treatment records. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(1). A veteran, however, must provide VA with enough information to obtain the private treatment records, such as the person, company, agency, or other custodian holding the records; the approximate time frame covered by the records; and, in the case of medical treatment records, the condition for which treatment was provided; the veteran also must execute the necessary authorization for VA to obtain these records. VA’s duty to assist includes assisting the claimant in the procurement of relevant records in the custody of federal agencies. 38 U.S.C. § 5103A(c)(1)(B); 38 C.F.R. § 3.159(c)(2). This duty ends only where the records either are obtained or it is determined that such records do not exist or that further efforts to obtain them would be futile. 38 U.S.C. § 5103A(c)(2); 38 C.F.R. § 3.159(c)(2). In an August 2017 Statement in Support of Claim, the Veteran stated that he has been dealing with low back pain for twenty-eight years. In dealing with the pain, the Veteran has resorted to “heat creams . . . heating pads . . . Chiropractic Visits,” and an occasional “trip to the emergency room to seek relief.” (Emphases added). On multiple occasions, the Veteran has indicated that he was referred to the VA medical center (VAMC) in Indianapolis by his VA doctor at the Bedford clinic. See July 10, 2018, Correspondence; June 18, 2018, Notice of Disagreement (NOD). The VAMC records in the claims file, however, are from the Bloomington and Indianapolis locations. The Veteran’s statements make clear that there are private treatment records not yet associated with the claims file (chiropractic treatment and emergency room visits) and that there may be outstanding VAMC records also missing. As of the date of this decision, VA has not made any attempts to obtain any private treatment records, and it is unclear whether there are outstanding VAMC records. Therefore, the Board finds that VA has not fulfilled its duty to assist. Thus, on remand, VA should elicit from the Veteran the names of all treating providers for his back condition since his separation from service, including VA facilities, and the corresponding dates for treatment. See 38 U.S.C. § 5103A; 38 C.F.R. §§ 3.159(c)(1)–(2), 20.904(a). The aforementioned matter is REMANDED for the following action: 1. Contact the Veteran and request information as to any outstanding private treatment (medical) records concerning the back, to include chiropractic and emergency room treatment records. Upon receipt of the requested information and the appropriate releases, the agency of original jurisdiction (AOJ) should contact all identified health care providers and request that they forward copies of all available treatment records and clinical documentation for the relevant time period on appeal pertaining to the treatment of the disorders, not already of record, for incorporation into the record. If identified records are not ultimately obtained, the Veteran should be notified pursuant to 38 C.F.R. § 3.159(e). 2. Obtain any identified and ongoing VA treatment records. Should they exist, associate them with the claims file. 3. Conduct any other development deemed necessary, to include obtaining an updated examination and opinion, and then readjudicate the issue of service connection for a low back condition. If the claim remains denied, then issue to the Veteran a Supplemental Statement of the Case (SOC). After allowing an appropriate amount of time for response from the Veteran, return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or the Court must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. E. Blowers Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.