Citation Nr: 21005153 Decision Date: 01/29/21 Archive Date: 01/29/21 DOCKET NO. 20-29 683 DATE: January 29, 2021 ORDER Service connection for rhabdomyolysis is denied. REMANDED Entitlement to a rating in excess of 30 percent for compartment syndrome, left lower leg, status post fasciotomy (LLL compartment syndrome) is remanded. Entitlement to a rating in excess of 30 percent for compartment syndrome, right lower leg, status post fasciotomy (RLL compartment syndrome) is remanded. FINDING OF FACT At no time during the pendency of the claim does the Veteran have a disability of rhabdomyolysis, and the record does not contain a diagnosis of disability prior to the Veteran’s filing of a claim. CONCLUSION OF LAW The criteria for service connection for rhabdomyolysis have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2001 to September 2004. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in November 2018 by a Department of Veterans Affairs (VA) Regional Office, which, in addition to the above captioned issues, adjudicated the Veteran’s claims for increased ratings for residual painful scars of the bilateral legs, and service connection for right ear hearing loss. In this regard, following the Veteran’s timely notice of disagreement in February 2019, the Agency of Original Jurisdiction (AOJ) issued a statement of the case as to all issues in July 2020. In connection with such document, the AOJ also issued a rating decision in August 2020, which, as relevant, awarded separate ratings for the Veteran’s left and right leg scars, denied service connection for right ear hearing loss, and awarded a total disability rating based on individual unemployability (TDIU), effective January 22, 2020. Thereafter, the Veteran perfected an appeal in the VA Legacy system of all of the issues, and the AOJ certified such to the Board in September 2020. However, the Veteran submitted a Decision Review Request: Board Appeal (VA Form 10182) later that month requesting direct review in the modernized appeal system, developed as a result of the Appeals Modernization Act (AMA), of, as relevant, the issues of entitlement to an increased rating for bilateral leg scars, service connection for right ear hearing loss, and an effective date prior to January 22, 2020, for the award of a TDIU. Given such election, the Board finds the Veteran withdrew his appeal pertaining to those issues from the Legacy system and, accordingly, they will be addressed in a separate decision in the modernized appeals system issued at a later date, if otherwise in order. 1. Entitlement to service connection for rhabdomyolysis, to include as secondary to service-connected LLL and RLE compartment syndrome. The Veteran contends he has rhabdomyolysis as a result of his service-connected LLL and RLL compartment syndrome. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Further, service connection may not be awarded on the basis of aggravation without establishing a pre-aggravation baseline level of disability and comparing it to the current level of disability. 38 C.F.R. § 3.310(b). An award of service connection requires a finding of a current disability that is related to an injury or disease in service. Watson v. Brown, 4 Vet. App. 309 (1993); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992). Under applicable regulation, the term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen, 7 Vet. App. 439; Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018) (the term “disability” as used in 38 U.S.C. § 1110 “refers to the functional impairment of earning capacity, not the underlying cause of said disability,” and held that “pain alone can serve as a functional impairment and therefore qualify as a disability”). In McClain v. Nicholson, 21 Vet. App. 319, 321 (2007), the United States Court of Appeals for Veterans Claims (Court) held that the requirement of the existence of a current disability is satisfied when a claimant has a disability at the time he files his claim for service connection or during the pendency of that claim, even if the disability resolves prior to adjudication of the claim. However, in Romanowsky v. Shinseki, 26 Vet. App. 289 (2013), the Court held that when the record contains a recent diagnosis of disability prior to a claimant filing a claim for benefits based on that disability, the report of diagnosis is relevant evidence that the Board must address in determining whether a current disability existed at the time the claim was filed or during its pendency. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Here, the Board finds determinative the absence of competent evidence of a current disability of rhabdomyolysis during the pendency of the claim, to include the period proximate to receipt of the Veteran’s claim. Although the Veteran underwent VA examination in October 2018, the VA examiner did not record a diagnosis of rhabdomyolysis on the associated report. Additionally, the examination report does not show the Veteran reported any symptomatology related to the kidney system at that time. Further, VA treatment records dated during the pendency of the appeal and within the one year period prior to the Veteran’s filing of his claim do not reflect complaints, treatment, or a diagnosis referable to rhabdomyolysis. Moreover, the VA examiner in June 2020 specifically found the Veteran did not have a history of rhabdomyolysis. In fact, the only notation specifically referring to rhabdomyolysis is a December 2016 VA treatment record, which only indicates the Veteran had a “[h]istory of rhabdo.” Given that the author of the VA treatment record did not provide an explanation for the finding or citation to evidence in support thereof, or identify the proximate date when the disability was present, the Board affords such notation no probative weight. Rather, the Board affords great probative value to the June 2020 VA examination report as such was completed by a trained medical professional who reviewed the record and performed an in-person examination of the Veteran. In this regard, the Board has considered the Veteran’s assertions as to the diagnosis of rhabdomyolysis; however, as a lay person, he does not have the requisite training and experience necessary to address such a complex medical matter. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). In this regard, the diagnosis of such disorder involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship. Specifically, such requires knowledge of the muscles and renal system, to include the working processes therein. Therefore, such matter may not be competently addressed by lay statements. See Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Therefore, the Board affords his statements regarding the diagnosis of rhabdomyolysis no probative weight. Consequently, the Board finds that at no time during the pendency of the claim does the Veteran have a disability of rhabdomyolysis, and the record does not contain a diagnosis of disability prior to the Veteran’s filing of a claim. Furthermore, the record does not reflect functional impairment associated with such alleged disorder. Therefore, service connection for rhabdomyolysis must be denied. Watson, supra; Brammer, supra; Rabideau, supra. In reaching such decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for rhabdomyolysis. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. REASONS FOR REMAND 2. Entitlement to a rating in excess of 30 percent for LLL compartment syndrome. 3. Entitlement to a rating in excess of 30 percent for RLL compartment syndrome. The appeal period before the Board begins on September 13, 2018, the date VA received the Veteran’s claim for increased ratings, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). According to the Rating Codesheet, the Veteran’s LLL and RLL compartment syndrome are each evaluated as 30 percent disabling pursuant to Diagnostic Code 5312 for the entire appeal period. 38 C.F.R. § 4.73. Under 38 C.F.R. § 4.73, Diagnostic Codes 5301 to 5323 prescribe the evaluation of disabilities manifested by muscle injuries based upon the classifications of slight, moderate, moderately severe, or severe. 38 C.F.R. § 4.56(d)(1)-(4). The corresponding level of severity of a service-connected muscle injury is determined to a significant extent by the presence or absence of cardinal signs and symptoms of muscle disability, which consist of loss of power, lowered threshold of fatigue, weakness, pain, impairment of coordination, and uncertainty of movement. 38 C.F.R. § 4.56(c). Diagnostic Code 5312 pertains to injuries affecting Muscle Group XII, which impacts dorsiflexion, extension of the toes, and stabilization of the arches, and includes the anterior muscles of the leg: tibialis anterior, extensor digitorum longus, extensor hallucis longus, and peroneus tertius. Under Diagnostic Code 5312, a 30 percent rating is the maximum schedular evaluation assigned for a severe disability. Consequently, the Veteran has been in receipt of the maximum schedular ratings for his LLL and RLL compartment syndrome under Diagnostic Code 5312 for the entire appeal period. However, the Board notes the medical evidence of record raises the question as to which specific group of muscles is affected by the Veteran’s service-connected LLL and RLL compartment syndrome. Specifically, following physical examination of the Veteran in June 2020, a VA clinician indicated his service-connected disabilities affected Muscle Group XI, which pertains to propulsion, plantar flexion of the foot, stabilization of the arch, and flexion of the toes, and includes muscles of the foot, ankle, and calf: gastrocnemius, soleus, tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, and flexor digitorum longus. Such contrasts with the October 2016 and October 2018 VA examination reports identifying the affected area as Muscle Group XII. The June 2020 VA clinician did not explain the new finding and, in fact, stated there was no change in the diagnosis, as confirmed on examination. To properly rate the impairment produced by the Veteran’s service-connected LLL and RLL compartment syndrome, the muscle group or groups affected during the appeal period must be ascertained. In light of the conflicting medical evidence, therefore, the Board finds a remand is warranted for an addendum opinion addressing such matter. Furthermore, the Board notes that if the Veteran’s LLL and RLL compartment syndrome are shown to affect Muscle Group XI, rather than or in addition to Muscle Group XII, the nature and severity of such would be properly rated pursuant to Diagnostic Code 5311. However, under Diagnostic Code 5311, 30 percent is the maximum schedular evaluation provided for a severe disability. In this regard, the Board does not ignore the potential assignment of separate ratings for multiple affected muscle groups, which will be dependent upon the clarification obtained on remand. Setting such possibility aside at the moment, however, to warrant a rating in excess of the 30 percent already assigned for a single affected muscle group under either Diagnostic Code 5312 or 5311, the evidence must show symptomatology that is not contemplated by the rating criteria. In this respect, an exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran’s service-connected disability. 38 C.F.R. § 3.321; Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating to the Under Secretary for Benefits or the Director of Compensation Service. Otherwise, the schedular evaluation is adequate, and referral is not required. Upon review, the Board finds the Veteran reports symptomatology not contemplated by the rating criteria. In a September 2018 statement, he reported that he experienced excessive swelling and instability that had caused him to collapse and/or fall more than 100 times since his condition had worsened. In this regard, VA treatment records dated during the appeal period are replete with the Veteran’s complaints of falling and trouble with gait and balance due to numbness, swelling, and pain in the bilateral lower extremities. In particular, an October 2018 VA treatment record indicates the Veteran described a “progressive impaired ability to walk” and a history of falls. Further, the Board notes VA provided the Veteran with a wheelchair to specifically reduce his falling in October 2019. In this respect, the June 2020 VA examination report shows the Veteran occasionally used a wheelchair and a walker and regularly used a cane due to pain and balance issues. With respect to the second element for extra-schedular consideration, a May 2020 TDIU Vocational Assessment Report provided by a private rehabilitation counselor reflects the finding that the Veteran’s inability to stand or ambulate safely, despite the use of assistive devices, due to instability caused by his bilateral lower extremity conditions, in addition to his well-documented fall history, further precluded him from meeting the physical requirements of even sedentary employment. The May 2020 Report also indicates the Veteran was terminated from his last place of employment in 2014 due to his “inability to stand or walk consistently while in a store, and interact appropriately with others”. Additionally, the Veteran reported in the September 2018 statement that he had visited the emergency room more than 10 times in the past year due to excruciating pain and discomfort, and the Board finds the VA treatment records dated during the appeal period include emergency room documentation that supports such assertion. Thus, following receipt of the clarification requested above, the appeal must be referred to the Under Secretary for Benefits or the Director of Compensation Service for consideration of the assignment of an extra-schedular rating for the Veteran’s LLL and RLL compartment syndrome. 38 C.F.R. § 3.321(b)(1). The matters are REMANDED for the following actions: 1. Forward the record, to include a copy of this Remand, to the VA clinician who conducted the June 2020 examination, or an appropriate substitute if unavailable, for an addendum opinion. The need for additional examination of the Veteran is left to the discretion of the clinician selected to write the opinion. The clinician is asked to identify the specific muscle group or groups affected by the Veteran’s service-connected LLL and RLL compartment syndrome. In doing so, the clinician should address the conflicting evidence in the VA examination reports of record: the October 2016 and October 2018 reports indicate Muscle Group XII is affected, whereas the June 2020 report shows Muscle Group XI is affected. A rationale for any opinion offered should be provided. 2. Thereafter, refer the Veteran’s claims for ratings in excess of 30 percent for LLL and RLL compartment syndrome to the Under Secretary for Benefits or the Director of Compensation Service for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). A. JAEGER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Celli, 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.