Citation Nr: 21001718 Decision Date: 01/11/21 Archive Date: 01/11/21 DOCKET NO. 13-32 595 DATE: January 11, 2021 ORDER Prior to November 8, 2013, entitlement to an initial compensable rating for bilateral exercise-induced compartment syndrome status post five compartment fasciotomies with residual scars, is denied. As of November 8, 2013, entitlement to a 10 percent rating, but no higher, is warranted for bilateral exercise-induced compartment syndrome status post five compartment fasciotomies with residual scars is granted subject to controlling regulations applicable to the payment of monetary benefits. REMANDED Entitlement to an initial evaluation in excess of 10 percent for lumbar spine degenerative changes is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran’s bilateral exercise-induced compartment syndrome status post five compartment fasciotomies with residual scars has been most analogous to left lower extremity (LLE) superficial peroneal neuropathy. The Veteran’s bilateral exercise-induced compartment syndrome status post five compartment fasciotomies with residual scars has not affected his knee or lower leg muscle function. 2. Prior to November 8, 2013, the Veteran’s bilateral exercise-induced compartment syndrome status post five compartment fasciotomies with residual scars was not manifested by any painful or unstable scars. 3. As of November 8, 2013, the Veteran’s bilateral exercise-induced compartment syndrome status post five compartment fasciotomies with residual scars has been manifested by no more than two painful, but not unstable, scars. CONCLUSION OF LAW 1. Prior to November 8, 2013, the criteria for an initial compensable rating for bilateral exercise-induced compartment syndrome status post five compartment fasciotomies with residual scars have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.73, Diagnostic Codes (DC) 5312, 4.118, DCs 7804, 7805. 2. As of November 8, 2013, the criteria for a staged 10 percent rating, but no higher, for bilateral exercise-induced compartment syndrome status post five compartment fasciotomies with residual scars have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.73, DC 5312, 4.118, DCs 7804, 7805. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had uncharacterized Reserve service from November 1990 to April 1991, and verified active service from December 2002 to October 2003, from February 2005 to January 2012, and from May 2015 to March 2016. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. In May 2016, the Veteran and his spouse testified at Travel Board hearing before a Veterans Law Judge who has since retired. The Board sent a letter in October 2020 offering a new hearing but there was no response. The hearing transcript is associated with the claims file and has been considered in conjunction with this decision.. These matters were previously before the Board in September 2016. Additionally, in December 2019, the Board remanded this case and instructed the Agency of Original Jurisdiction (AOJ) to obtain VA examinations. The requested VA examination reports were obtained in January 2020 and have been associated with the claims file. With regard to the issue decided below, after reviewing the actions of the AOJ, the Board finds there was substantial compliance with the requested development. Dyment v. West, 13 Vet. App. 141 (1999); Stegall v. West, 11 Vet. App. 268 (1998). Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a compensable initial evaluation for bilateral exercise-induced compartment syndrome status post five compartment fasciotomies with residual scars. The Veteran filed a service connection claim for bilateral exercised-induced compartment syndrome status post five compartment fasciotomies with residual scars in April 2012. That claim was granted in a November 2012 rating decision and assigned a non-compensable evaluation pursuant to 38 C.F.R. § 4.73, DC 5312-7805, effective January 5, 2012; one day following separation from service. The Veteran has appealed the initial rating. The evidence of record includes the Veteran’s April 2012 claim in which he asserted that his muscle injury caused pain following routine activities, that his feet would go numb, and that his left leg was hypersensitive to touch. The Veteran underwent a VA general examination in September 2012. The examiner noted a diagnosis for exercise-induced compartment syndrome. The Veteran also underwent a September 2012 VA scar examination during which the Veteran reported an in-service history of exercise-induced compartment syndrome with current symptoms reported including intermittent pain lasting for 1 to 2 hours (sometimes longer), sensitivity to touch affecting the bilateral lower extremity (BLE) medial and lateral which was present 60 percent of the time and worse with climbing stairs or long walks. Pain reportedly occurred in the posterior calf described as feeling like a charley horse. No visible swelling or redness was seen. The examiner noted that the muscles of the BLE in both medial and lateral compartments were normal to inspection and palpation with no tenderness, fullness, swelling or resulting in limitation of motion. Scars were found located on the BLE. The scars were not found painful or unstable. Two right lower extremity (RLE) vertical linear scars were noted as located medial and lateral to the mid-tibia, both measuring 7 cm. Additionally, two LLE vertical linear scars were noted as located medial and lateral to the mid-tibia, both measuring 6 cm. In his November 2013, VA Form 9, Substantive Appeal, the Veteran stated that the surgery for his bilateral exercise-induced compartment syndrome caused painful scars, pain in his left foot, and golf-ball sized bulges on the inside of his calves. In addition, the Veteran reported that he was unable to run and that the muscles in his legs became easily fatigued. He also reported having RLS which began after multiple surgeries for his compartment syndrome. In a November 2013, the Veteran submitted an October 2013 letter from his treating physician who noted chronic left-sided superficial peroneal neuropathy and RLS. Both conditions were noted as related to the Veteran’s fasciotomies due to exercise-induced compartment syndrome. In a May 2014 Fast Letter, the representative noted that it had been the Veteran’s intent to submit a claim for a left foot condition, RLS and LLE superficial peroneal neuropathy. The Veteran underwent another VA scar examination in July 2014. The examiner noted that the Veteran’s scars had remained stable since his previous September 2012 examination. The Veteran reported that light palpation or brushing over his scars caused “shooting pins and needles sensation down his leg and in the foot.” The examiner noted that the Veteran’s reported symptoms were in direct contrast to the examination findings. Specifically, the examiner noted that direct palpation over the scar did not elicit pain. The examiner concluded that the Veteran’s symptoms were secondary to the Veteran’s left-sided superficial peroneal neuropathy and the examiner determined that none of the scars were painful or unstable. Two vertical scars were noted as located on the LLE, with the first measuring 6 cm x 0.2 cm, and the second measuring 8 cm x 0.5 cm, with the approximate total area noted as covering 5.2 cm2. No findings were provided for scars located at the RLE. The Veteran additionally underwent a VA knee and lower leg examination in July 2014. The examiner noted a diagnosis for bilateral exercise-induced compartment syndrome status post five compartment fasciotomies with residual scars. The examiner also noted a diagnosis for RLS. The Veteran reported that his exercise-induced symptoms had not really changes since his previous September 2012 examination. He reported symptoms of burning pain in his lower anterior leg and mid-posterior calf areas with activities such as stair or ladder climbing, and squatting. He also reported having static numbness across his dorsal foot and lateral mid-calf down to his foot. Running his hand over his calf also reportedly caused “pins and needles” shooting down into his dorsal foot/toes. He denied any loss of strength or motor function. Flare-ups were reportedly dependent upon activity. In this regard, work-related activities such as ladder and stair climbing resulted in burning pain occurring across the left lateral leg and foot and lasting a couple hours. Flare-ups reportedly occurred twice per week. The Veteran denied any functional impairments during flare-ups. ROM of the bilateral knee revealed 130 degree flexion and 0 degree extension with no objective evidence of painful motion. Repetitive-use testing did not result in further loss of ROM. The examiner noted that the Veteran had functional loss which affected his LLE resulting in disturbance of locomotion including activities such as ladder and stair climbing which caused burning pain. Muscle strength testing was normal. No instability was found. In an October 2014 rating decision, service connection for LLE superficial peroneal neuropathy with restless leg syndrome (RLS) was granted and assigned an evaluation of 20 percent. At a May 2016 Board hearing, the Veteran testified that since his compartment fasciotomies, if he touched the scars on his left leg he would feel pins and needles all the way down into his foot and toes. He further reported that while sleeping, if something rubbed against him his left leg would jerk. The Veteran further reported that his scars were very tender to touch. He denied that his scars were unstable. He further testified that he did not believe he had any loss of muscle strength. During a November 2016 VA muscle injury examination. The examiner noted a history of exercise-induced compartment syndrome which occurred during basic training and required five fasciotomies. Shin splints were also noted during basic training. The examiner noted a diagnosis for compartment syndrome affecting the right side as well as bilateral group XI muscle injuries affecting the muscles of the foot, ankle and calf. The muscle injury was not found to affect the muscle substance or function. Muscle strength testing was normal. Additionally, electrodiagnostic testing revealed diminished left sided peroneus longus muscle excitability to pulsed electrical current. In December 2019, the Board remanded this case and instructed the AOJ to obtain VA examinations. Specifically, the examiner was asked to opine whether the Veteran’s service-connected bilateral exercise-induced compartment syndrome status post five compartment fasciotomies with residual scars was most analogous to a knee impairment, a lower leg muscle impairment, scars, or another impairment. The requested VA medical opinion was obtained in January 2020. The examiner stated that the service-connected bilateral exercise-induced compartment syndrome with residual scars was most analogous to his left-sided superficial neuropathy. The examiner additionally found that the condition had no effect on the Veteran’s left knee or lower leg muscle function, and instead noted that it was the superficial neuropathy which caused the Veteran’s hypersensitivity in the affected area, a finding that was further found well supported through subjective data and objective symptoms during the examination. In addition, the Veteran underwent a VA scar examination in January 2020. The examiner noted two residual scars located on the left shin, and two scars located on the right shin. The examiner noted that the residual scars were noted as painful but not unstable. In this regard, the Veteran reported that his left shin scars were sensitive to touch and that he felt the sensation of needles pushing into his left shin and toes. The left shin scars were found to measure 5 x 0.1 cm and 6 x 0.1 cm. The right shin scars were found to measure 6 x 0.1 cm, and 8 x 0.2 cm. The approximate total area covered by the LLE scars was 1.1 cm2, and the approximate total area covered by the RLE scars was 1.1 cm2. The Veteran’s bilateral exercise-induced compartment syndrome status post five compartment fasciotomies with residual scars has been rated pursuant to 38 C.F.R. § 4.73, DC 5312-7805. Accordingly, the Veteran’s condition has been rated by analogy. With diseases, preference is to be given to the schedular number rating code assigned to the disease itself; if the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. With regard to the disability at issue, the rating code for muscle injuries, anterior muscles of the leg, including the tibialis anterior, extensor digitorum longus, extensor hallucis longus, and peroneus tertius, which addresses the functions of dorsiflexion, extension of toes, and the stabilization of arch is listed first, DC 5312, followed by a hyphen and then the rating code relating to scars, DC 7805. In December 2019, the Board remanded this matter, in part, to obtain a VA examination to determine whether the Veteran’s bilateral exercise-induced compartment syndrome status post five compartment fasciotomies with residual scars was most analogous to a knee impairment, a lower leg muscle impairment, scar, or other impairment. After a review of the evidence of record as well as a physical examination, the January 2020 VA examiner determined that the Veteran’s service-connected bilateral exercise-induced compartment syndrome with residual scars was most analogous to his left-sided superficial neuropathy. Specifically, the examiner found that the Veteran’s service-connected condition had no effect on his left knee or lower leg muscle function, and instead noted that it was the superficial neuropathy which caused the Veteran’s hypersensitivity in the affected area. This finding is supported by the evidence of record including the September 2012 VA examination which found normal BLE muscles with no limitation of motion, the July 2014 VA knee examination during which noted normal muscle strength testing and during which the Veteran denied any loss of strength or loss of motor function, the May 2016 Board Hearing during which the Veteran testified that he did not believe he had any loss of muscle strength, and the November 2016 VA muscle injury examination which found that the Veteran’s muscle injury did not affect his muscle substance or strength. In this regard, as noted above, the Veteran filed a separate claim for LLE superficial peroneal neuropathy in November 2013. That claim was granted in an October 2014 rating decision which assigned a 20 percent evaluation effective the date of that claim. The Veteran did not appeal the October 2014 rating decision, and that decision became final. 38 U.S.C. § 7105(a); 38 C.F.R. §§ 3.104(a), 20.302(a), 20.1103. Therefore, as the currently assigned evaluation for LLE superficial peroneal neuropathy is not currently before the Board, and in further consideration that the Veteran’s bilateral exercise-induced compartment syndrome with residual scars has not been found to have any effect on his knee of muscle function, the only issue currently before the Board is the noncompensable rating assigned for his residual scars. Skin conditions are rated pursuant to 38 C.F.R. § 4.118. The Board notes that the applicable rating criteria for skin disorders under 38 C.F.R. § 4.118 were amended most recently in August 2018. However, the 2018 revisions did not substantively change the Codes applicable to the Veteran’s scars. Under 38 C.F.R. § 4.118, scars are rated under DC 7800 (scars of the head, face, or neck or other disfigurement of the head, face or neck), 7801 (scars not of the head, face of neck, that are deep and nonlinear), 7802 (scars not of the head, face or neck that are superficial and nonlinear), and 7804 (scars that are unstable or painful). Initially, the Board notes that the Veteran’s service-connected residual scars are located on his bilateral lower extremities. Therefore, DC 7800 is not for application. Pursuant to DC 7802, a compensable 10 percent rating is not available unless such scars cover an area of at least 144 square inches (929 square centimeters). A superficial scar is one that is not associated with underlying soft tissue damage. Id. at Note 1. DC 7804 pertains to unstable or painful scars. In relevant part, a 10 percent evaluation is assigned for one or two scars that are unstable or painful. A 20 percent evaluation is assigned for three or four scars that are unstable or painful. 38 C.F.R. § 4.118, DC 7804. An unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Id., Note (1). If one or more scars are both unstable and painful, 10 percent is added to the evaluation that is based on the total number of unstable or painful scars. Id., Note (2). DC 7805 provides for scars to be rated on limitation of function of the affected part. 38 C.F.R. § 4.118, DC 7805. The November 2012 rating decision assigned a noncompensable evaluation based upon one or more linear scars. Throughout the period on appeal, the Veteran’s residual scars have not been shown to cover an area at least 144 square inches. Therefore, a compensable rating under DC 7802 is not warranted at any time during the period on appeal. Additionally, the Veteran’s residual scars have not been found to result in any limitation of function of the BLE. Therefore, a rating pursuant to DC 7805 is not warranted. Turning to DC 7804, the evidence of record does show that the Veteran’s residual scars have been found manifested by pain. Specifically, the January 2020 VA scar examiner determined that the Veteran’s LLE residual scars were manifested by pain, a finding based specifically on the Veteran’s lay statements in which he reported feeling needles pushing into his left shin and toes when he touched his LLE scars. A review of the evidence of record shows that the Veteran first reported these symptoms in his November 8, 2013 VA Form 9, Substantive Appeal. In this regard, prior to November 8, 2013, a September 2012 VA scar examination shows that the Veteran’s residual scars were specifically not found to be painful or unstable, and there is no evidence of any reported painful scar prior to that date. Additionally, since November 8, 2013, the Veteran has consistently reported symptoms of pins and needles shooting into his left foot and toes. See July 2014 VA Scar Examination, July 2014 VA Knee Examination, and May 2016 Board Hearing Transcript. While the July 2014 VA scar examiner determined that the Veteran’s symptoms did not represent a painful scar, and instead found such symptoms related solely to his service-connected LLE superficial peroneal neuropathy, both examiners based their findings on similar symptoms elicited by the Veteran during his physical examination. The Board further finds the Veteran’s lay statements probative. In this regard, a Veteran is competent to report symptomatology, such as pain and other present symptoms. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). Pain is also a “subjective” symptom and its existence is generally determined by whether or not the Veteran claims to experience it. Here the Veteran has consistently reported symptoms indicative of pain when brushing against his LLE residual scars. Therefore, the Board finds that competent, credible, and probative evidence establishes that the Veteran’s LLE residual scars have been manifested by pain. At the very least, the Board finds the evidence of record at least in equipoise with regard to this issue on appeal. Accordingly, the Board finds that as of November 8, 2013, the date of the Veteran’s VA Form 9 and the first evidence of record showing he reported symptoms of a painful scar, entitlement to a staged 10 percent rating, but no higher, is warranted pursuant to DC 7804. As the Veteran’s LLE is only manifested by two scars, and as the Veteran’s scar has not been found both painful and unstable, a higher 20 percent rating is not warranted at any point during the period on appeal. Lastly, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, prior to November 8, 2013, the preponderance of the evidence of record is against an initial compensable rating for bilateral exercise-induced compartment syndrome status post five compartment fasciotomies with residual scars, and that claim is denied. As of November 8, 2013, entitlement to a staged 10 percent rating, but no higher, for residual painful scars is warranted, and that claim is granted. 38 U.S.C. § 5107(b), 38 C.F.R. § 4.3. REASONS FOR REMAND 1. Entitlement to an initial evaluation in excess of 10 percent for lumbar spine degenerative changes is remanded. As noted above, this case was most recently remanded in December 2019. The Board remanded this matter to obtain a VA examination. Specifically, the examiner was asked to elicit information regarding the severity, frequency and duration of any flare-ups and on repeated use, as well as the degree of functional loss. In addition, if the examiner was unable to provide specific measurements or an opinion regarding symptoms, functional impairment during flare-ups or following repeated use over time, without resorting to speculation, the examiner was asked to state why. The Board further requested that the examiner, to the extent possible, provide retrospective findings with regard to an estimate of functional loss in degrees due to flare-ups and on repeated use, during passive motion and on weight-bearing, experienced by the Veteran prior to the examination including at the time of the prior November 2016 VA examination. If that was not possible, the examiner was asked to provide a reason as to why. The requested VA examination was obtained in January 2020. The Veteran reported constant mild to moderate low back pain with worsening symptoms, such as a pinch or pressure if he sat in one place for more than a few minutes. The Veteran also reported flare-ups that were caused by walking more than normal or when he lifted heavy objects. Flare-ups reportedly resulted in moderate muscle spasm and pressure pain and reportedly occurred 4 to 5 times per week, were moderate in severity, and with each episode lasting 1 to 2 days. The Veteran denied having any functional loss or functional impairment. ROM testing was noted as normal with pain noted during forward flexion, but which did not result in or cause functional loss. Pain was also noted as evident with weight bearing. No objective evidence of localized tenderness or pain to palpation was found. The examiner noted that the Veteran was able to perform repetitive-use testing which did not result in any further loss of motion. In addition, the examiner noted that the Veteran was not being examined during a flare-up or following repeated use over time, but found that neither caused pain, weakness, fatigability or incoordination nor did they significantly limit functional ability. In this regard, the examiner stated that based upon the current examination and a review of the previous VA examination, that the Veteran had no functional loss with his ROM, even during flare-ups, and that this finding was consistent with previous assessments. The examiner further noted that non-weight bearing assessment was not applicable and that passive ROM was not performed as it was not feasible as such testing could not be conducted in a safe and reasonable manner. While the examiner provided findings as requested in regard to functional loss during flare-ups, requested findings as to whether repeated use over time was not provided. Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessitates remand for corrective action. Stegall v. West, 11 Vet. App. 268 (1998) (remand by the Board confers on the Veteran, as a matter of law, a right to compliance with the remand instructions, and imposes upon VA a duty to ensure compliance with the remand). Accordingly, a Remand is required to obtain an addendum medical opinion addressing this inquiry on appeal. The matters are REMANDED for the following action: 1. Refer the Veteran’s claims file to the VA examiner who provided the January 2020 VA lumbar spine examination, or another qualified medical professional if the VA examiner is not available. To the extent possible, the examiner should provide retrospective findings in regard to an estimation of functional loss in degrees due to repeated use over time experienced by the Veteran during the January 2020 VA examination and prior to that examination, to include at the time of VA examination conducted in November 2016. If it is not possible to provide such measurements, or an opinion regarding symptoms or functional impairment following repeated use over time without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. After undertaking any other development deemed appropriate, readjudicate the issues on appeal. If any benefit sought is not granted, furnish the Veteran and his representative with a supplemental statement of the case and afford them an opportunity to respond before the record is returned to the Board for further review. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Lamb, 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.