Citation Nr: A21017606 Decision Date: 11/01/21 Archive Date: 11/01/21 DOCKET NO. 191023-42640 DATE: November 1, 2021 ORDER 1. Entitlement to an effective date prior to April 1, 2011 for the award of service connection for right flank muscle cramping is denied. 2. Entitlement to an effective date prior to April 1, 2011 for the award of service connection for left flank muscle cramping is denied. 3. Entitlement to a compensable rating for right flank muscle cramping is denied. 4. New and relevant evidence has been received and readjudication of the claim of entitlement to a compensable rating for left flank muscle cramping is required. FINDINGS OF FACT 1. The first communication from the Veteran seeking secondary service connection for right and left flank muscle cramping (claimed as kidney problems) (on which the May 2018 grant of service connection for right and left flank muscle cramping was based) was received by VA on April 1, 2011; the award was made effective the April 1, 2011 date of receipt of the claim. 2. The Veteran's right flank muscle cramping manifests in no more than slight impairment; moderate impairment of right and left muscle group II is not shown. 3. Evidence received for the record after the May 2018 rating decision on appeal during a period when submission of evidence was permitted (a November 2019 statement by the Veteran) is relevant to the claim of entitlement to a compensable rating for left flank muscle cramping but is inadequate to decide the matter (without further development). CONCLUSIONS OF LAW 1. An effective date prior to April 1, 2011 for the award of service connection for right and left flank muscle cramping is not warranted. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.31, 3.151, 3.155, 3.400. 2. A compensable rating for right flank muscle cramping is not been warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.73, Diagnostic Code (Code) 5302. 3. New and relevant evidence has been received and, readjudication of the claim for a compensable rating for left flank muscle cramping is required. 38 U.S.C. § 5108; 38 C.F.R. § 3.156 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1966 to August 1968. These matters are before the Board of Veterans' Appeals (Board) on appeal of a May 2018 Department of Veterans Affairs (VA) rating decision. In October 2019, the Veteran opted into the Appeals Modernization Act (AMA) review system by submitting a VA Form 10182 after the issuance of a statement of the case (SOC) on September 5, 2019. 38 C.F.R. § 3.2400(c)(1). He selected the evidence lane when he opted into the system. Therefore, the Board's review is limited to evidence on record at the time of the September 5, 2019 SOC and evidence submitted by the appellant or his representative 90 days following the receipt of VA Form 10182 (on October 23, 2019). 1. 2. Entitlement to an effective date prior to April 1, 2011 for the award of service connection for right and left flank muscle cramping is denied. Effective Dates The Veteran asserts he is entitled to an [unspecified] effective date prior to April 1, 2011 for the grant of service connection for right and left flank muscle cramping. His attorney refers to date entitlement arose. Except as otherwise provided, the effective date of an award of compensation based on an initial claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later (emphasis added). 38 U.S.C. § 5110; 38 C.F.R. § 3.400. Under 38 C.F.R. § 3.31, payment of monetary benefits pursuant to an award of recurring monthly benefits commences on the first day of the calendar month following the effective date of the award (the date of claim). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid to any individual under the laws administered by VA. 38 U.S.C. § 5101(a); 38 C.F.R. § 3.151(a). The term "claim" or "application" means a formal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). While "the date entitlement arose" is not defined in statute or regulation, the U.S. Court of Appeals for Veterans Claims (Court) has interpreted it as the date the claimant met the requirements for the benefit sought (here, when a flank disability and nexus to service or a service-connected disability were shown). See 38 U.S.C. § 5110(a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). On April 1, 2011, the Veteran's representative submitted correspondence expressing the Veteran's desire to file a claim seeking service connection for complications associated with his service-connected diabetes mellitus type II, particularly kidney problems. See April 2011 Third Party Correspondence. On May 2011, the Veteran VA diabetes examination, the Veteran reported paresthesia and loss of sensation in both lower extremities. A note at the end of the examination report indicates that the examination was required for an opinion for kidney problems as due to service-connected diabetes and that the Veteran stated he was having "muscle cramps over his flank region when he made the claim for kidney problems," but that, because his kidney function was normal, he stated that he did not wish to pursue the claim for kidney problems. In August 2011, the RO acknowledged the apparent withdrawal of his claim for a kidney condition, but because it was not in writing it was accepted as a withdrawal and, thus, the RO subsequently denied service connection for kidney problems in an August 2011 rating decision. In August 2012, the Veteran filed a notice of disagreement (NOD) with this decision, and ultimately a January 2016 Board decision denied service connection for a kidney disability (which was appealed to the U.S. Court of Appeals for Veterans Claims (Court)). The April 2017 CAVC Memorandum Decision remanded the issue of service connection for a muscle cramp disability over the flank region as reasonably raised by the Veteran's kidney claim. The Court stated, "In April 2011, [the Veteran] sought service connection for a disability that manifested symptoms as 'muscle cramps over his flank,' which as a layman, he believed to be the result of a kidney problem." Specifically, the Court stated, "the record reflects the [V]eteran sought service connection for a kidney problem secondary to diabetes. Thus, in May 2011, the [V]eteran underwent a VA diabetes examination that included evaluation of renal functioning. After performing various tests, the examiner found normal renal function but noted complaints of "muscle cramps over the flank region when he made his claim for kidney problems." The Court instructed the Board to consider the reasonably raised claim. In December 2017, the Board remanded the issue of entitlement to service connection for a muscle cramp disability over the flank region for an adequate examination and adjudicatory action. Based on the examination findings, the RO granted service connection for right and left flank muscle cramping as secondary to service-connected type 2 diabetes mellitus, rated 0 percent, each, effective from April 1, 2011. In his November 2018 Notice of Disagreement, the Veteran (via his attorney) indicated that he disagreed (in part) with the effective date of the award. The bases for the disagreement and the effective date sought were not identified. The critical questions in this matter are (1) when did the Veteran first file a claim seeking service connection for right and left flank muscle cramping (as the effective date of an award of service connection cannot be earlier than the date of receipt of the claim, unless the claim was filed within one year following separation from service or if the award of compensation is due to a liberalizing change in the law or an administrative issue) and (2) when entitlement to service connection arose (it was shown that he had the disability and that it was incurred or aggravated in service or, as here, is secondary to a service connected disability). The first communication from the Veteran to VA expressly seeking service connection for a muscle cramp disability (inferred from his claim seeking service connection for complications of diabetes) was received April 1, 2011. On later examination a medical professional opined that his muscle cramping was secondary to a service- connected disability (and medication provided for treatment of service-connected disability). The Veteran's attorney has not argued with any specificity the theory of entitlement under which these benefits are sought, or even what earlier effective dates were sought; none is evident. Instead, he has submitted correspondence filled with boilerplate and generic citations to caselaw with parentheticals. See October 2019 Third Party Correspondence. Under 38 C.F.R. § 3.400(b)(2), an effective date for an award of secondary service connection is the date of receipt of claim or the date entitlement arose, whichever is later. Here, the April 1, 2011 date of what was inferred to be claims of service connection for disability manifested by flank pain. Entitlement arose when he was found to have such disability and it was related by competent evidence to a service-connected disability. As the date of claim was the earlier of those two dates, § 3.400(b)(2) is dispositive. Sabonis v. Brown, 6 Vet. App. 426 (1994). Considering the foregoing, the Board finds that an effective date prior to April 1, 2011 for the grant of service connection for right and left flank muscle cramping is not warranted. The appeal in this matter must be denied. Increased rating 3. Entitlement to a compensable rating for right flank muscle cramping is denied. The Veteran asserts that his service-connected right flank muscle cramping disability warrant's a compensable-but neither he nor his attorney has explained in detail what higher rating is warranted, and why. Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). Disabilities must be reviewed in relation to their history. The percentage ratings 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 their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations allow for the assignment of an increased rating up to one year prior to receipt of a formal claim for increase, when it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. §§ 3.157, 3.400(o)(2). Where there is a question as to which of two ratings shall be assigned, the higher criteria will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability is to be resolved in favor of the claimant. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 56. Diagnostic Code 5302 provides ratings for injuries to Muscle Group II (functions: depression of arm from vertical overhead to hanging at side (1, 20); downward rotation of scapula (3, 4); 1 and 2 act with Group III in forward and backward swing of arm. At the outset, the Board notes that DC 5302 provides a different evaluation progression for the dominant and non-dominant limb. A January 2018 VA examination notes the Veteran is right hand dominant. Under Code 5302 (for the dominant arm), a 0 percent rating is warranted if impairment of Muscle Group II is slight; a 20 percent rating is warranted if the impairment is moderate; a 30 percent rating is warranted if the impairment is moderately severe; and a (maximum) rating of 40 percent is warranted if there is severe impairment. 38 C.F.R. § 4.73, Code 5302. The provisions of 38 C.F.R. § 4.56 are for application when evaluating muscle disabilities, which provides guidance on identifying the severity of muscle injury based on type of wound; history and complaints; objective findings; and cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c). A slight muscle disability is characterized as a simple wound of muscle without debridement or infection, with a history of an in-service superficial wound with brief treatment and return to duty, healing with good functional results, and no cardinal signs or symptoms of a muscle disability. 38 C.F.R. § 4.57(d)(1)(i)-(ii). Objective findings include minimal scar, and no evidence of fascial defect, atrophy, or impaired tonus, and no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(1)(iii). A moderate muscle disability is characterized by 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, with a history of in-service treatment for the wound, and a record of consistent complaint 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. 38 C.F.R. § 4.56(d)(2)(i)-(ii). Objective findings 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)(iii). A moderately severe disability is characterized by a through and through or deep penetrating wound by small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring, with a history of hospitalization for a prolonged period for treatment of the wound, and a record of consistent complaint of cardinal signs and symptoms of muscle disability, and, if present, evidence of inability to keep up with work requirements. 38 C.F.R. § 4.56(d)(3)(i)-(ii). Objective findings 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 as compared with sound side, and tests of strength and endurance compared with the sound side demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3)(iii). A severe disability of the muscles consists of a through and through or deep penetrating wound due to a high-velocity missile, or large or multiple low velocity missiles, or with shattering bond fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. 38 C.F.R. § 4.56(d)(4)(i). There is a history showing hospitalization for a prolonged period for treatment of the wound, a record of consistent complaint of cardinal signs and symptoms of muscle disability, worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. 38 C.F.R. § 4.56(d)(4)(ii). Objective findings include ragged, depressed and adherent scars indicating wide damage to muscle groups in the missile track, loss of deep fascia or muscle substance on palpation or soft flabby muscles in the wound area, and abnormal swelling and hardening or the muscles in contraction. 38 C.F.R. § 4.56(d)(4)(iii). Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment. Id. 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, and (g) induration or atrophy of an entire muscle following simple piercing by a projectile. Id. On January 2018 VA examination the Veteran reported that he had muscle cramps episodically. He stated that the cramps occurred when he was sitting or lying down and twisted or turned his torso. He explained that he would have a sudden onset of muscle tightness localized to a specific area, which would not resolve until he repositioned himself to allow the muscle to relax. With repositioning, the cramp would resolve within a few minutes. He added that the muscle cramps did not occur when he was standing or walking. He reported he took an over-the-counter herbal preparation when he had a cramp and stated that this product worked well. He had not had a medical evaluation of the cramps in his flanks. He stated he was asymptomatic at the time of this examination. The examiner noted that there were no scars or cardinal signs and symptoms of a muscle disability, no atrophy, and muscle injury did not affect muscle substance or function. On July 2019 VA examination, the Veteran reported that his flank pain disability had not changed and stayed the same over the last 18 months. The examiner found that there were no scars or cardinal signs and symptoms of a muscle disability, no atrophy, and muscle injury did not affect muscle substance or function. At the outset, the Board observes that the muscle injury rating guidelines do not have applicability in this matter, as the disability does not involve penetrating injury to flank muscles, but instead is one with internal manifestations. Therefore, the rating must be based on the impact the identified manifestations have on functioning, in particularly occupational functioning. Based on the findings on examinations during the period of evaluation, as well as the Veteran's own reports describing the nature of the manifestations, the Board finds that the disability shows no more than slight muscle group II impairment. He reports that the manifestations appear only from certain movements by him while sitting and resolve within minutes. At most he self-medicates with only an herbal preparation. Examiners have opined that the disability results in no loss of muscle substance of function. Such findings clearly do not meet or approximate the moderate level of impairment required for the minimal compensable disability at any time under consideration. Notably, on July 2019 VA examination, the Veteran reported that the disability had not changed and stayed the same over the last 18 months. Accordingly, the Board finds that entitlement to compensable disability rating for service-connected right flank muscle cramping is not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 56. 4. New and relevant evidence has been received and readjudication of the claim seeking a compensable rating for left flank muscle cramping is required. VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 C.F.R. § 3.156 (d). "Relevant evidence" is evidence that "tends to prove or disprove a matter in issue." 38 C.F.R. § 3.2501. The May 2018 rating decision on appeal found the Veteran's left flank muscle cramping disability was not of moderate severity so as to warrant a compensable rating. Thereafter, a November 2019 statement in support of the claim by the Veteran was received for the record within 90 days following VA receipt of his October 2019 VA Form 10182. This evidence is new because it was not previously of record, and is relevant because it tends to prove or disprove that the current severity of his left flank muscle disability is more severe than currently rated. The evidence competent evidence of worsening because a lay person is competent to observe a manifestation such as cramping of greater severity. Accordingly, the Board finds that the evidence received since the prior denial is "new and relevant" and requires readjudication of this claim. [The Board notes the November 2019 statement was received after the rating decision on appeal. In the AMA review system, VA's duty to assist ends when VA issues the notice of decision on a claim or returned claim and does not recommence unless a supplemental claim is submitted, or a claim is returned to the AOJ for correction of an error. 38 U.S.C. § 5103A (e); 38 C.F.R. § 3.159 (c). The statute specifically provides that the Secretary's duty to assist shall not apply to review on appeal by the Board. 38 U.S.C. § 5103A (e)(2). However, a duty to assist (such as by arranging for a new examination) may arise in connection with readjudication of the claim.] GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Griffith 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.